United States of America v. John Thomas

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2509
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J OHN T HOMAS ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 216‐1 — James B. Zagel, Judge.
____________________
SUBMITTED OCTOBER 27, 2016 — DECIDED NOVEMBER 3, 2016
____________________
Before P OSNER , FLAUM, and R IPPLE , Circuit Judges.
P OSNER , Circuit Judge. The defendant pleaded guilty to
committing wire fraud, in violation of 18 U.S.C. § 1343, by
submitting fraudulent invoices to an Illinois town
(Riverdale), which reimbursed him for $374,000 claimed in
the invoices but not owed him by the town. The district
judge sentenced him to 60 months in prison to be followed
by 36 months of supervised release. The appeal challenges
the conditions of supervised release and not the prison sen‐

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2 No. 15‐2509
tence, but asks us to order a full resentencing of the defend‐
ant.
Apart from certain mandatory conditions of supervised
release, which are not challenged, the judge at the sentenc‐
ing hearing imposed (and we quote) the following “discre‐
tionary conditions of supervised release, most of which have
to do with restitution and money and seeking work, these
are number 1; number 2; number 4; number 6 and number 7;
number 8; number 9; number 14; number 15; number 16
which includes virtually every place where a probation of‐
ficer could visit the defendant at a reasonable time. 17, noti‐
fying of change in residence. 18, notifying a probation officer
promptly within 72 hours of arrest or questioned by a law
enforcement officer.”
The judge also imposed (again we are quoting) “certain
special conditions [of supervised release] which is another
list. Under special condition number 3, which requires
community service, if there is unemployment for the first 60
days on supervision. Number 5, restricting credit charges.
Number 7 is giving the probation officer information as to
financial information. Notifying the court, number 7, notify‐
ing the court in any material change in defendant’s circum‐
stances. This is number 10 under special, he will have to con‐
tribute an amount thatʹs at least 10 percent of his net month‐
ly income to the extent that other financial obligations have
not been met. And he may not enter into any agreement to
act as an informer or a special agent of a law enforcement
agency without the permission of the Court.”
The number references are to the written judgment (no
number, however, was given for the last condition of super‐
vised release that the judge imposed). A sentencing judge is

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No. 15‐2509 3
required to give reasons for the conditions that he imposes;
that was not done. The judge should also read the conditions
of supervised release to the defendant, United States v.
Kappes, 782 F.3d 828, 862 (7th Cir. 2015); United States v. John‐
son, 765 F.3d 702, 710–11 (7th Cir. 2014), along with the rest
of the sentence; that was not done either, and the judge did
not explain the omission. It’s true that United States v. Bloch,
825 F.3d 862 (7th Cir. 2016), holds that a judge may during
sentencing state that he’s incorporating by reference super‐
vised‐release conditions listed in his written notice of pro‐
posed conditions, but only if the defendant has had an op‐
portunity to review the proposed conditions before sentenc‐
ing and there is no conflict either between the conditions in
the written notice and the conditions actually imposed in the
written judgment or between the conditions stated orally by
the judge at the sentencing hearing and those in the written
judgment. Id. at 872–73, citing United States v. Kappes, supra,
782 F.3d at 862.
In the present case the written notice was prepared by
the probation office, but the judge imposed a condition—
that the defendant “participate, at the direction of a proba‐
tion officer, in a substance abuse treatment program, which
may include urine testing up to a maximum of 104 tests per
year” that was not in the written notice. Furthermore, the
judge imposed special condition 7 twice, the first time incor‐
rectly, saying that “Number 7 is giving the probation officer
information as to financial information.” No, that is Number
6 in the written judgment, so there is a discrepancy between
oral and written, in violation of Bloch and Kappes.
And finally the judge gave no reason, as he was also re‐
quired to do, see 18 U.S.C. § 3553(c); United States v. Kappes,

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4 No. 15‐2509
supra, 782 F.3d at 845–46, for the term of supervised re‐
lease—36 months—that he was imposing.
The errors we’ve enumerated were serious. The govern‐
ment joins the defendant in asking us to reverse the judg‐
ment with instructions for a full resentencing. See, e.g., Unit‐
ed States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015); United
States v. Downs, 784 F.3d 1180, 1182 (7th Cir. 2015).
The judgment is reversed and the case remanded with
instructions for a full resentencing of the defendant.

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