                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-3810
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

ELSTON A. HENRY,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Western Division.
          No. 12 CR 50066-1— Philip G. Reinhard, Judge.
                     ____________________

  ARGUED JANUARY 26, 2016— DECIDED FEBRUARY 17, 2016



                     ____________________

   Before WOOD, Chief Judge, and BAUER and POSNER, Circuit
Judges.
     POSNER, Circuit Judge. The defendant pleaded guilty to
conspiracy to possess an illegal drug intending to distribute
it, see 21 U.S.C. §§ 846, 841, and to possession of a firearm for
use in his drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i). He was
sentenced to 152 months in prison. His only colorable chal-
2                                                 No. 14-3810


lenges on appeal are to the length of the prison term and the
duration and conditions of supervised release that the dis-
trict judge imposed.
    As part of his drug activity the defendant had recruited a
man named Arsenio Purifoy to sell heroin for him. He sup-
plied the heroin to Purifoy with instructions to charge $100
per gram and return $80 to him; the $20 retained by Purifoy
was compensation for making the sale. (The record is silent
on the cost to the defendant of the heroin he bought for Puri-
foy to resell.) The judge increased the defendant’s guidelines
range by two levels on the ground that he was Purifoy’s
“manager, or supervisor,” of their joint drug activity.
U.S.S.G. § 3B1.1(c).
    Application Note 4 to guideline 3B1.1 lists “exercise of
decision making authority,” “recruitment of accomplices,”
“the claimed right to a larger share of the fruits of the
crime,” and “the degree of participation in planning or or-
ganizing the offense,” as being among the factors that a
judge should consider in deciding whether to impose the
two-level enhancement. All are present in this case. The de-
fendant recruited Purifoy to be an accomplice, instructed
him (according to Purifoy) in how to package heroin for sale,
claimed—and indeed took—a much larger share (80 percent)
of the revenue of Purifoy’s activity than Purifoy himself (20
percent), and in these respects exercised decision-making
authority over Purifoy, determined Purifoy’s compensation,
and was the planner and organizer of the drug activity (re-
tail sale of heroin) that he had recruited Purifoy to conduct.
He also helped pay for a gun for Purifoy to enable the latter
to protect the conspirators. He even admitted having “re-
cruited Purifoy to sell heroin for” him (that is, for the de-
No. 14-3810                                                     3


fendant). And finally Purifoy lived in the defendant’s
home—where the defendant could keep an eye on him and
kick him out or worse if he didn’t toe the line.
    If you recruit a person, tell him what his job is, specify his
wage, and equip him with tools of his trade (the gun in this
case), you’re his manager. Recruitment as a factor support-
ing an inference of management is emphasized in United
States v. Mendoza, 576 F.3d 711, 717 (7th Cir. 2009), a case
similar to this one.
    It’s true that there is no evidence of close, day by day su-
pervision of Purifoy’s retail sales activity by the defendant.
But an employee doesn’t cease to be an employee merely be-
cause he’s on a long leash. The judges of this court have been
“recruited” by the federal government, which is in a broad
sense the “organizer” of our activity, but there is no day to
day supervision. The fact that Purifoy sold just heroin,
though the enterprise sold other illegal drugs as well, is also
irrelevant, for different employees often perform different
tasks for their employer. The two-level enhancement was
proper.
    Regarding supervised release, however, the government
concedes that the district judge erred and recommends that
the judgment be vacated and the case remanded for full re-
sentencing. The recommendation is consistent with the prin-
ciple that because imprisonment and supervised release are
to a degree substitutes—supervised release like prison im-
poses restrictions on the defendant’s freedom, albeit less
stringent ones—a change either in the prison sentence or in
the supervised-release sentence may warrant a change in the
other sentence in order to produce an optimal mixture of
4                                                    No. 14-3810


tight and loose restrictions. E.g., United States v. Downs, 784
F.3d 1180, 1182 (7th Cir. 2015).
    The government is right to concede sentencing error in
regard to supervised release. The district judge had failed to
make the findings required by 18 U.S.C. §§ 3553(a) and
3583(d) to justify the length of a term of supervised release
and the particular conditions (other than those required by
statute) that he imposed. He also failed to state at sentencing
the conditions that he was imposing. See 18 U.S.C. § 3583(c);
United States v. Kappes, 782 F.3d 828, 845, 862 (7th Cir. 2015);
United States v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015).
    And a number of the conditions that he imposed have
been criticized by this court on a variety of grounds not ad-
dressed by the district judge. See, e.g., United States v. Poulin,
809 F.3d 924, 931–34 (7th Cir. 2016); United States v. Kappes,
supra, 782 F.3d at 848–51. For example, he did not explain
why he was requiring the defendant, as one of the condi-
tions of supervised release, to “permit a probation officer to
visit him or her at any time at home or elsewhere and …
permit confiscation of any contraband observed in plain
view of the probation officer.” The imposition of this condi-
tion without an explanation for its need in the particular case
has drawn repeated criticism from this court. See, e.g., Unit-
ed States v. Kappes, supra, 782 F.3d at 850–51; United States v.
Thompson, supra, 777 F.3d at 379–80; United States v. Poulin,
supra, 809 F.3d at 934. There are two problems with the con-
dition. The first is “or elsewhere.” There is no problem with
the probation officer and the defendant agreeing to meet out-
side the defendant’s home, but it is unclear why the proba-
tion officer should be allowed to pick a location that may be
inconvenient for the defendant. Replacing “elsewhere” with
No. 14-3810                                                   5


“at some other mutually convenient location designated by
the probation officer” would solve this problem. Another
solution is found in United States v. Armour, 804 F.3d 859,
864, 870 (7th Cir. 2015)—“You shall permit a probation of-
ficer to visit you at home or any other reasonable location be-
tween the hours of 6:00 AM and 11:00 PM, unless investigat-
ing a violation or in case of emergency” (emphasis added).
Omitting such a qualification (as the judge did in this case)
leaves open at least the theoretical possibility that the proba-
tion officer could require the defendant to meet him in an
inappropriate location, such as a funeral, or in a remote one,
say a place many miles away.
     The significance of a requirement of reasonableness is
underscored by the remark in Armour that the defendant
“argues that the term ‘or other reasonable location’ is vague
and may subject Armour to searches at a church, hospital, or
funeral home. However, under most circumstances, those
visits would be unreasonable and thus barred by the condition
itself. Therefore, imposing this condition was not an abuse of
discretion.” 804 F.3d at 870 (emphasis added).
     There is also a question of what the probation officer
would hope to learn from home visits that he would not
learn from the defendant’s required visits to the probation
office. A defendant who has contraband in his home is un-
likely to leave it in the “plain view” of the visiting probation
officer. But in any event the home-visit condition is not
mandatory, and being optional can be modified by the dis-
trict judge to fit the particulars of the case.
   Enough said. The judgment is vacated and the case re-
manded for a full resentencing.
