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Sentencing – Supervised release; financial ability

U.S. Court of Appeals For the Seventh Circuit

Criminal

Sentencing – Supervised release; financial ability

When imposing conditions of supervised release and requiring that the defendant pay the government for rehabilitative services, the court should include, that, repayment is conditioned on ability to pay.

“Although we have just concluded that title 18 U.S.C. § 3672 affords district courts the discretion to require that offenders repay the government for rehabilitative services furnished to them if they are financially able to do so, the problem with applying traditional factfinding practices to predict offenders’ future financial circumstances is that the conclusions are speculative. To avoid this speculation while remaining faithful to the fact-finding requirement imposed by 18 U.S.C. § 3672, the best practice for district courts to follow is to incorporate language into the special condition that requires the offender to pay for the costs of rehabilitative services if financially able to do so. See, e.g., Hinds, 770 F.3d at 666; Baker, 755 F.3d at 529; Siegel, 753 F.3d at 714.”

“The district court did not do that here. So despite affirming the substance of special condition nos. 1 and 9, because the district court made no findings about Cary’s financial circumstances before it imposed mandatory repayment requirements on him, these special conditions must be remanded to the district court for this limited purpose. If the district court, on this limited remand, elects to order the imposition of a conditional repayment plan on any of the special conditions imposed on Cary, it should incorporate the phrase ‘if financially able’ or a similar phrase to the last sentence of the applicable special conditions in the judgment. Hinds, 770 F.3d at 666 (remanding because the district court failed to make a determination ‘based on the offender’s financial resources’ before imposing a special condition). We need not address payment responsibilities in connection with condition no. 6 because we have vacated it.”

Affirmed in part, and Vacated in part.

14-1961 U.S. v. Cary

Appeal from the United States District Court for the Central District of Illinois, McDade, J., Manion, J.

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