                           In the

United States Court of Appeals
             For the Seventh Circuit

Nos. 09-1958, 09-1962 & 09-1963

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

K EVIN A NDERSON, R ICK H ARRE, and
R ONALD S. M ACERI,
                                         Defendants-Appellants.


          Appeals from the United States District Court
               for the Southern District of Illinois.
          Nos. 4:99CR40099-003, 4:98CR40104-006-JPG,
          4:01CR40057-10-JPG—J. Phil Gilbert, Judge.



     A RGUED A UGUST 4, 2009—D ECIDED O CTOBER 9, 2009




 Before F LAUM, K ANNE and W OOD, Circuit Judges.
  W OOD , Circuit Judge. Only one thing links the three
cases that we have consolidated for argument and dis-
position here: the question whether the district court
correctly understood our decision in United States v.
Head, 552 F.3d 640 (2009), as precluding its authority
to impose, as a condition of supervised release, place-
2                          Nos. 09-1958, 09-1962 & 09-1963

ment in a halfway house. Ronald Maceri, Kevin
Anderson, and Rick Harre each violated the conditions
of his supervised release, and each asked that he be
given a shorter term of re-imprisonment to be followed
by placement in a halfway house as one condition of his
new supervised release. Understanding Head to preclude
that disposition, the district court instead imposed a
new term of imprisonment with a recommendation to the
Bureau of Prisons (“BOP”) that it place each man in a
halfway house during the last six months of his sentence.
All three now argue that this violated 18 U.S.C. § 3553(a),
because it resulted in a term of imprisonment longer
than necessary. We must decide whether Head requires
this result.


                              I
                         A. Maceri
   In July 2002, Maceri pleaded guilty to conspiring to
distribute methamphetamine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1). Initially, the district court sentenced
him to a total of 156 months’ imprisonment, but later
it reduced the term to 104 months, because of Maceri’s
substantial assistance to the Government. See F ED. R. C RIM.
P. 35(b). Maceri began his term of supervised release in
November 2008.
  He did not spend that time well. Only a month later, in
December 2008, Maceri’s probation officer petitioned
the court for revocation of supervised release, alleging
that Maceri had failed to report to the officer, maintain
Nos. 09-1958, 09-1962 & 09-1963                         3

employment, disclose a change in residence, attend a
substance-abuse appointment, and report for a urinalysis.
At a revocation hearing in early February 2009, Maceri
admitted the violations. The most serious one was Grade
C, which, with Maceri’s criminal history category of VI,
resulted in an advisory re-imprisonment range of eight
to 14 months. See U.S.S.G. § 7B1.4(a).
  At the time of his hearing, the decision in Head was
less than three weeks old, but the district court was well
aware of it. The judge questioned whether he was now
unable to impose halfway-house placement as a con-
dition of supervised release. He noted, with concern, that
over the years he had ordered halfway-house placement
frequently, and he commented that “my druthers would
be to put him in jail for a period of time as punishment
and then give him the help he needs in a halfway
house.” At the request of both parties, the court then
continued the hearing until March 26, 2009, to give the
parties and itself an opportunity to review Head in
more detail.
  At the March hearing, Maceri took the position that
halfway-house placement should be ordered and that
Head did not forbid this disposition. Counsel suggested
that the district court could achieve this outcome either
by releasing Maceri on bond and making residency in the
halfway house a condition of bond, or by ordering his
placement as a condition of supervised release despite
Head, relying on the residual authority granted by
18 U.S.C. § 3583(d), which in turn refers to 18 U.S.C.
§ 3563(b)(22). Counsel also noted, as Head had acknowl-
4                          Nos. 09-1958, 09-1962 & 09-1963

edged, see 552 F.3d at 642 n.1, that Congress amended
the passage in 18 U.S.C. § 3583(d) that had excluded
halfway-house confinement as a possible condition of
supervised release, and that the statute now permits
such confinement, though “only as a condition of super-
vised release in accordance with section 3583(e)(2) and
only when facilities are available.” Pub. L. No. 110-406,
§ 14(b) (Oct. 13, 2008).
  Head holds that this amendment does not operate
retroactively, see 552 F.3d at 642 n.1. To the extent that
it has the effect of authorizing a more severe term of
supervised release (one involving greater restraints on
personal freedom), counsel here was concerned that
retroactive application could raise ex post facto concerns.
Counsel argued, however, that all Maceri would need to
do would be to waive any ex post facto objection. That is
as far as this line of inquiry went, however; counsel
never produced, and Maceri never offered to provide,
such a waiver. The court responded that it “heard and
understood [Maceri’s] argument, but I’m not going to do
what you suggest.” It imposed a term of 14 months’ re-
imprisonment with a recommendation to the BOP that
the final six months be served in a halfway house.


                      B. Anderson
  In October 2000, Anderson pleaded guilty to two
counts of conspiring to distribute and one count of dis-
tributing crack cocaine, in violation of 21 U.S.C. §§ 846
and 841(a)(1). The district court initially sentenced him
to 188 months in prison, but it reduced the term to
Nos. 09-1958, 09-1962 & 09-1963                         5

125 months for substantial assistance. Anderson’s sen-
tence was further reduced to 100 months in March 2008
after the base offense levels for most crack offenses
were reduced retroactively. At that point, he was im-
mediately released from prison.
  Like Maceri, Anderson did not achieve a smooth transi-
tion to life on the outside. He violated the conditions of
his supervised release on many occasions, and in
October 2008 the district court ordered him to appear.
At that meeting, the court delivered a warning to him,
but Anderson did not heed it, and so in January 2009
his probation officer petitioned for revocation of his
supervised release. The officer alleged that Anderson
had committed numerous violations, including driving
without a license, failing to make monthly payments
toward his fine, lying to his probation officer, and
changing residences without notifying the probation
officer.
  At his revocation hearing, which was also conducted
on March 26, 2009, Anderson admitted that he had
violated the conditions of his supervised release. The
most serious violation was Grade B, which, with Ander-
son’s criminal history category of IV, resulted in a re-
imprisonment range of 12 to 18 months. See U.S.S.G.
§ 7B1.4(a). Anderson requested a term of 12 months and
one day in prison, to be followed by a term of six months
in a halfway house as a condition of supervised release.
The Government replied that Head forecloses that possi-
bility. Anderson disagreed, but he did not offer to
waive any potential ex post facto arguments. The
district court agreed with the Government and imposed
6                         Nos. 09-1958, 09-1962 & 09-1963

a term of 18 months’ re-imprisonment with a recommenda-
tion to the BOP that the final six months be served in
a halfway house.


                        C. Harre
  In July 1999, Harre pleaded guilty to conspiring to
distribute methamphetamine in violation of 21 U.S.C.
§§ 846 and 841(a)(1). His initial sentence was 135 months’
imprisonment, but it too was later reduced (in his case
to 90 months) to reward his substantial assistance.
He began his term of supervised release in November 2005.
  Harre, too, proved to be incapable of adhering to the
conditions of his release. In May 2008, after testing
positive for cocaine, he received a warning from the
district court. The warning did not deter him, and so in
November 2008 his probation officer filed a petition for
revocation of his supervised release, alleging that Harre
had driven under the influence, fled the scene of an
accident, committed other traffic offenses, illegally pos-
sessed cocaine, drank excessively, and failed to notify
his probation officer after being arrested.
  Harre’s revocation hearing also took place on March 26,
2009. At the hearing, he admitted that he had violated
the conditions of his release. The most serious violation
was Grade B, which, with Harre’s criminal history
category of I, resulted in a re-imprisonment range of
four to 10 months. See U.S.S.G. § 7B1.4(a). Harre
requested a term within the advisory range, asserting
that the district court still had the authority after Head
Nos. 09-1958, 09-1962 & 09-1963                         7

to impose halfway-house placement as a condition of
supervised release. He noted that the BOP was not
obliged to follow the court’s recommendation for such
placement during the last six months of the prison term.
Like Anderson, Harre did not offer to waive any
potential ex post facto argument. The district court, sus-
pecting that Harre had been intoxicated when he left
the scene of the accident and dubious about the
adequacy of Harre’s four-month state term of incar-
ceration on the traffic offenses, imposed an above-range
term of 20 months’ re-imprisonment, again with a recom-
mendation that the BOP place him in a halfway house
for the final six months.


                            II
  All three appellants are represented by the same
assistant federal public defender, and all argue that the
district court erred in holding that it did not have the
authority to order halfway-house placement as a con-
dition of supervised release. This amounts, they urge, to
an over-reading of Head, which in their view held
only that halfway-house placement is not expressly
authorized as a discretionary condition of release by
§§ 3583(d) and 3563(b), not that it is affirmatively for-
bidden. They also argue that there were other legal mecha-
nisms that the district court could have used in order
to achieve the desired result, including imposing
residence in the house as a condition of bond and
applying the amended law along with a waiver of possible
ex post facto rights. (We agree with the parties that the
8                          Nos. 09-1958, 09-1962 & 09-1963

imposition of a prison sentence six months longer than
it would have been, coupled with a recommendation to
the BOP for halfway-house placement during that final
period, is not an adequate substitute, since the BOP is not
bound by any such recommendation.)
  Appellants’ first argument is hard to square with Head.
It is true that the primary argument that Head con-
sidered and rejected was the “scrivener’s error” point
that the Government had urged successfully in a number
of other circuits. See 552 F.3d at 642-43. We did not feel
free to ignore the plain language of the statute (as it read
at the time of Head’s sentencing), and we rejected
the proposition that it would be absurd to exclude
§ 3563(b)(11) (halfway-house placement) as a discre-
tionary condition of supervised release. 552 F.3d at 643-
44. We also found no authority in § 3583(d), which, in
paragraph 3, appears to permit any condition that “is
consistent with any pertinent policy statements issued
by the Sentencing Commission pursuant to 28 U.S.C.
§ 944(a),” but then immediately goes on to authorize
“any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20) and any other condition it considers
to be appropriate.” 18 U.S.C. § 3583(d) (2007). Finally,
Head indicated in a footnote that the catch-all provision
did not recapture the power to impose the halfway-
house condition found in 3563(b)(11). 552 F.3d at 645 n.2.
This theory, however, had not been pressed by the Gov-
ernment, which in Head was the party defending the
condition.
Nos. 09-1958, 09-1962 & 09-1963                               9

  The most difficult question that these appeals present is
whether district courts may impose halfway-house con-
finement as a condition of supervised release under the
catch-all language of the statute, or if the explicit
omission of (b)(11) in the version of the statute that gov-
erns all three should be understood as an affirmative
limitation on the court’s power. On the one hand, federal
courts have no inherent power to suspend a sentence or
to order probation; their authority derives solely from
statutes. Ex parte United States, 242 U.S. 27, 41-52 (1916);
United States v. Garcia-Quintanilla, 574 F.3d 295, 300-01 (5th
Cir. 2009); Gov’t of the V.I. v. Martinez, 239 F.3d 293, 297 (3d
Cir. 2001); Knight v. United States, 73 F.3d 117, 120 (7th
Cir. 1995). One consequence of that rule is that district
courts do not have inherent authority to modify sentences
as they please; to the contrary, a district court’s discre-
tion under 18 U.S.C. § 3582(c) to modify a sentence
is an exception to the statute’s general rule that “the
court may not modify a term of imprisonment once it has
been imposed.” United States v. Cunningham, 554 F.3d
703, 707-08 (7th Cir. 2009). Compare United States v.
Randle, 324 F.3d 550, 555 (7th Cir. 2003) (no inherent
authority to order restitution).
  On the other hand, the statute not only gave the
district courts the authority to impose certain specific
discretionary conditions of probation (and supervised
release, through § 3583), but it also included the catch-
all phrase “and any other condition it considers to be
appropriate.” Those “other” conditions must respect
three limitations. First, the condition must respect the
factors set forth in 18 U.S.C. § 3553(a)(1) (nature and
10                          Nos. 09-1958, 09-1962 & 09-1963

circumstances of offense and history and characteristics
of defendant), (a)(2)(B) (adequate deterrence), (a)(2)(C)
(protection of the public), (a)(2)(D) (provision of needed
educational or vocational treatment, medical care, etc.,
for the defendant), (a)(4) (recommended Guidelines sen-
tence), (a)(5) (policy statements from the Sentencing
Commission), (a)(6) (avoidance of unwarranted dispari-
ties), and (a)(7) (need to provide restitution to victims). See
18 U.S.C. § 3583(c). Second, the condition cannot
impose any “greater deprivation of liberty than is rea-
sonably necessary” to advance the goals of deterrence,
protection of the public, and serving the defendant’s
correctional needs. § 3583(d)(2). Third, the condition
must be consistent with the Sentencing Commission’s
policy statements. § 3583(d)(3). Section 5D1.3(b) of the
Guidelines also addresses the imposition of discretionary
conditions of supervised release; in general, it mirrors
the statutory language.
  Courts have been reluctant to allow additional conditions
of supervised release to be imposed under the catch-all
provision of § 3583 if the particular condition already
has been addressed in the statute. Thus, in United States v.
Ferguson, 369 F.3d 847 (5th Cir. 2004), the Fifth Circuit
held that the catch-all language did not authorize the
district court to impose home detention outside the
scope already permitted in § 3563(b)(19). And although
the district court may require a defendant to comply
with a preexisting child support order as a condition of
supervised release, see § 3563(b)(20), the court may not
require a defendant to pay his child support obligations
at a rate different from that previously established by a
Nos. 09-1958, 09-1962 & 09-1963                             11

state court. United States v. Lakatos, 241 F.3d 690, 695 (9th
Cir. 2001). On the other hand, the Eleventh Circuit
recently held that a reporting requirement for removal
of an alien was not forbidden by negative implication,
despite the fact that § 3583 specifically addresses other
removal requirements. United States v. Guzman, 558 F.3d
1262, 1265 n.1 (11th Cir. 2009). Similarly, this court has
held that, although a district court may not order repay-
ment of the Government’s investigative costs as restitu-
tion when the Government is not a victim of the crime,
the court is authorized by the catch-all provision of § 3583
to order such repayment as a condition of supervised
release. United States v. Brooks, 114 F.3d 106, 108 (7th Cir.
1997); United States v. Daddato, 996 F.2d 903, 905-06 (7th Cir.
1993); see also United States v. Cook, 406 F.3d 485, 489
(7th Cir. 2005) (repayment of “buy” money may be
ordered as a condition of supervised release but not as
restitution); but see United States v. Cottman, 142 F.3d 160,
169-70 (3d Cir. 1998) (holding that conditions of super-
vised release cannot include a requirement that
defendant pay “restitution” to the FBI, because restitution
must comply with the provisions of § 3563).
  As we have already noted, the central question is
whether §§ 3583 and 3563, before the 2008 amendment,
should be understood as making placement in a
halfway house an affirmatively unlawful condition of
supervised release, see United States v. Gibson, 356 F.3d
761, 767 (7th Cir. 2004), or if it was simply not some-
thing that was pre-authorized by law. This is a
distinction that arose with some regularity in the pre-
Booker sentencing environment. In general, the Sen-
12                         Nos. 09-1958, 09-1962 & 09-1963

tencing Guidelines gave the trial courts broad discretion
to consider “without limitation, any information con-
cerning the background, character and conduct of the
defendant, unless otherwise prohibited by law.” U.S.S.G.
§ 1B1.4. They then prohibited the court from con-
sidering certain factors, such as the defendant’s race,
sex, or religion. U.S.S.G. § 5H1.10. Other factors were
simply not mentioned. When considering pre-Booker
requests for departures, a district court had no legal
authority to rely on the forbidden factors, but if the
Guidelines were silent about something, then the court
could consider it and made a decision whether that
factor was sufficient to take the case out of the “heart-
land” of the Guidelines. See, e.g., United States v. Ali, 508
F.3d 136, 148 (3d Cir. 2007); United States v. Hernandez, 330
F.3d 964, 988 (7th Cir. 2003); see generally Koon v. United
States, 518 U.S. 81, 92-96 (1996).
  Although the signals we have from Congress are
mixed, we see nothing in the pre-2008 statutory scheme
that supports the proposition that Congress intended
to make residence in a halfway house flatly illegal. To the
contrary, halfway-house placement has always affirma-
tively been authorized as a discretionary condition of
probation. See 18 U.S.C. § 3563(b)(11). Although it was
excluded from the list of discretionary conditions
expressly permitted as a condition of supervised
release, see 18 U.S.C. § 3583(d) (2007), the statute was
otherwise silent about this particular condition. It did,
however, include the catch-all provision, indicating that
Congress wished to confer broad discretion on the dis-
trict courts to fashion appropriate conditions of release
Nos. 09-1958, 09-1962 & 09-1963                        13

that complied with the broad goals of sentencing. We add
as well that, in our view, the 2008 amendment does not
carry with it the negative inference that halfway-
house placement fell beyond the scope of the residual
clause prior to the amendment. As we discussed at length
in Head, the omission of halfway-house placement from
the list of permitted conditions was almost certainly
accidental, and we understand the 2008 amendment
simply to be correcting that glitch in the statute. Under
different circumstances, a repeal or an amendment
might carry different implications for the proper use of
residual powers.
  Now that the question is squarely before us, we
conclude that placement in a halfway house should be
viewed as a legitimate additional condition not affirma-
tively authorized by the statute, rather than one
expressly forbidden. (Because this holding has the effect
of restricting Head significantly, we have circulated this
opinion to the full court under Circuit Rule 40(e). No
judge wished to hear the case en banc.) The district court
is therefore free to consider halfway-house placement
as a possible condition of supervised release, provided
that in the particular cases it complies with the restric-
tions we have noted above on the use of the catch-all
authority.


                           III
  This decision makes it unnecessary for us to reach
appellants’ alternative arguments based on the Ex Post
Facto clause of the Constitution and the court’s power
14                       Nos. 09-1958, 09-1962 & 09-1963

to impose conditions in connection with a bond. We
hereby R EMAND all three cases to the district court for
further proceedings consistent with this opinion.




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