United States v. Ortiz, No. 15-3240 (7th Cir. 2016)

Annotate this Case

Ortiz was sentenced to prison for 135 months for three bank robberies. The Seventh Circuit reversed the judge’s supervised‐release rulings and remanded for full resentencing. On remand the judge reimposed the 135‐month prison sentence but altered the conditions of supervised release. Ortiz again appealed. The Seventh Circuit again remanded, noting the judge’s failure, at the hearing, to specify the term of supervised release. Finding most of the 18 discretionary conditions “unexceptional,” the court questioned the wording of conditions requiring Ortiz to “seek, and work conscientiously, at lawful employment” or pursue a course of study equipping him for such work and to “remain within the jurisdiction where [he] is being supervised,” unless granted permission to leave; permitting a probation officer to visit the defendant at any reasonable time at home, at work, or at any other reasonable location; and requiring that “if unemployed after the first 60 days of supervision, or … for 60 days after termination or lay‐off from employment,” the defendant must “perform at least 20 hours of community service per week at the direction of the U.S. Probation Service until gainfully employed.”

Download PDF

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 3240 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DEREK ORTIZ, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 187 — Matthew F. Kennelly, Judge. ____________________ SUBMITTED MARCH 15, 2016— DECIDED MARCH 28, 2016 ____________________ Before POSNER, KANNE, and ROVNER, Circuit Judges. POSNER, Circuit Judge. This appeal is a sequel to one of the four appeals decided by us in United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). The appellant, Derek Ortiz, had been sentenced to prison for 135 months for three bank robberies. His appeal did not challenge his prison sentence, but only the conditions of supervised release imposed by the district judge. We reversed the judge’s supervised release rulings, see id. at 378–80, and remanded for full resentencing. On 2 No. 15 3240 remand the judge reimposed the 135 month prison sentence (though without explanation he said that Ortiz’s “total sen tence is 131 months”) but altered the conditions of super vised release. Ortiz has again appealed, challenging some of those conditions. A preliminary objection is to the judge’s failure at the sentencing hearing to specify the term of supervised release. He had specified three years at the first sentencing hearing, and the three year term is repeated in his written but not his oral sentence on remand. The oral sentence controls, but giv en that the judge had specified three years when imposing sentence in the first round of this litigation the parties doubt less assumed that the length of supervised release would again be three years; the judge said that he thought his pre vious sentence (regarding prison term) had been appropriate and that he was going to impose it “again.” We’ll also skip over the mandatory conditions imposed on the defendant, since the judge was required to impose them. The judge imposed 18 discretionary conditions. Most of these are unexceptionable (including one challenged by the defendant—that he obtain his probation officer’s permission to borrow money unless he is in compliance with his restitu tion obligations), but some are questionable. We quote these from the written judgment, because it is slightly clearer than, and generally if not entirely consistent with, the judge’s oral statement of the conditions at the second sentencing hearing. When there is a conflict between the oral and the written judgment, the former of course controls. United States v. Per ry, 743 F.3d 238, 242 (7th Cir. 2014). Ortiz doesn’t challenge all the conditions that we ques tion. But since as we’re about to show the case has to be re No. 15 3240 3 manded because of errors in some of the conditions that were challenged, we’ll address errors in the others as well in order to prevent confusion in the district court on remand. The first of the questionable conditions requires the de fendant to “seek, and work conscientiously, at lawful em ployment” (or pursue a course of study equipping him for such work, but that part of the condition is proper). The problem with the quoted portion of the condition is that read literally it requires him to work even if he can’t find a job. As an ex con he may, however conscientiously he seeks produc tive employment, be unable to persuade any employer to hire him. This condition needs to be reworded. Another poorly worded condition requires the defendant to “remain within the jurisdiction where [he] is being super vised, unless granted permission to leave by the court or a probation officer.” There is no definition of “jurisdiction,” and no reason to think that the defendant would understand what it meant and, if he correctly understood it to denote a geographical area, what the boundaries of that area are. Another questionable condition permits a probation of ficer to visit the defendant at any reasonable time at home, at work, or at any other reasonable location specified by a pro bation officer. It’s not clear that allowing the probation of ficer to visit the defendant at work is a good idea. A stranger entering the workplace will usually be asked why he’s there, and when the employer or the other employees learn that he’s a probation officer they may doubt the wisdom of con tinued employment of someone they’ve discovered from the officer’s visit is a convicted criminal under continued gov ernment supervision. One needs to distinguish, however, between the probation officer’s visiting the defendant at 4 No. 15 3240 work, and—what is far less objectionable—visiting the workplace to verify with management that the defendant is indeed employed there. A further objection to the visit in the workplace condition is that it was stated differently in the judge’s oral sentence: omitted was any reference to any other “reasonable location” that the probation officer might pick. Still another questionable condition provides that “if un employed after the first 60 days of supervision, or … for 60 days after termination or lay off from employment,” the de fendant must “perform at least 20 hours of community ser vice per week at the direction of the U.S. Probation Service until gainfully employed,” though “the amount of commu nity service shall not exceed 200 hours.” The numbers seem arbitrary. It’s not easy for ex cons (especially bank robbers!) to obtain gainful employment; it may often take them more than 60 days, and having to perform 20 hours or more of community service—for the condition requires “at least” 20 hours a week of such service—may eat significantly into job hunting. And one would like to know what “community service” encompasses. Furthermore, the 20 hour figure is in conflict with the judge’s oral sentence, which specified 15 rather than 20 hours as the minimum amount of time re quired to be devoted to community service if the defendant is not gainfully employed. Requiring volunteer work may be a good way to keep probationers gainfully occupied so that they do not get into trouble, and it may also help probation ers demonstrate their employability and network with po tential employers. But it is important for the judge to explain why the number of hours he chose creates a proper balance between the benefits and the burdens of community service. No. 15 3240 5 The problems we’ve identified with the conditions of supervised release imposed by the sentencing judge require that he reconsider the conditions. We therefore vacate the sentence and remand for resentencing.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.