                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 14-2331
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

DAYTON POKE,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Western Division.
          No. 11 CR 50062-1 — Frederick J. Kapala, Judge.
                     ____________________

        ARGUED JUNE 9, 2015 — DECIDED JULY 15, 2015
                 ____________________

   Before POSNER, KANNE, and SYKES, Circuit Judges.
    POSNER, Circuit Judge. The defendant, age 35 at sentenc-
ing, was sentenced to 420 months in prison—35 years—for
possessing 1.2 grams of crack cocaine with intent to sell; pos-
sessing a gun though he’d previously been convicted of a
felony; and using the gun in furtherance of a drug-
trafficking offense. See 21 U.S.C. § 841(a)(1); 18 U.S.C.
§§ 922(g)(1), 924(c)(1)(A), (e)(1). He was also a career of-
fender, having been convicted of two previous drug of-
2                                                 No. 14-2331


fenses. The statutory minimum sentence for all his offenses
combined was 20 years (240 months)—15 years for his being
a felon in possession and 5 years for carrying a firearm in
furtherance of a felony. There is no minimum statutory sen-
tence for possession of 1.2 grams of crack with intent to sell,
21 U.S.C. §§ 841(b)(1)(B)(iii), (b)(1)(C), but the firearm-in-
furtherance sentence was required by 18 U.S.C.
§ 924(c)(1)(D)(ii) to be made consecutive to the prison sen-
tence imposed on any other count.
   Because the defendant was convicted on all counts and
was a career offender, his guidelines sentencing range was
360 months to life; had he not been a career offender, it
would have been 160 to 185 months. The judge sentenced
him, as we said, to 420 months. The judge also imposed a 5-
year term of supervised release.
    The prison sentence appears to involve an accidental
double counting. The judge explained at the sentencing
hearing that he was sentencing the defendant to 360 months
on the drug charge (including 180 months on the felon-in-
possession charge to run concurrently with the 360-month
drug sentence), and to another 60 months for carrying a gun
in furtherance of a drug offense; the total was 420. Although
the judge was required to make the 60-month sentence run
consecutively to the sentence he imposed for the drug of-
fense, 18 U.S.C. § 924(c)(1)(D)(ii), he could have sentenced
the defendant to only 360 months, the bottom of the guide-
lines range, by apportioning 60 of those months to the gun-
in-furtherance count and the remaining 300 to the drug and
felon-in-possession counts. See U.S.S.G. § 5G1.2(e).
   Not that the judge ever said that he intended to sentence
the defendant at the bottom of the guidelines range—and of
No. 14-2331                                                  3


course he was not bound to do so—but all that is clear is that
he didn’t want to impose a below-guidelines sentence, and
he may have believed that he would have been doing that
had he given the defendant a sentence of only 360 months.
Such a belief would have been a mistake, based on a failure
to consider the apportionment option, which, without pierc-
ing the floor of the guidelines range, would allow a total sen-
tence of 360 months to be imposed even though the gun-in-
furtherance sentence was required to run consecutively to
the drug and felon-in-possession sentences.
    The judge must also reexamine the supervised-release
part of the sentence because he failed to justify the nonman-
datory conditions that he imposed. He did not apply to them
the sentencing factors specified in 18 U.S.C. § 3553(a), as he
was required to do. United States v. Kappes, 782 F.3d 828, 845–
46 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368,
373–74 (7th Cir. 2015). The government points out that the
defendant’s 5-year term of supervised release is below the
statutory minimum (6 years) applicable to the drug offense.
21 U.S.C. §§ 841(a)(1), (b)(1)(C). Although the government
did not cross appeal, the district court on remand, since it
will be reconsidering the conditions of supervised release,
will have the power to alter the term to bring it into confor-
mity with the statute. Moreover, the government concedes
that the defendant must be fully resentenced, and so the
judge will have to consider the possible bearing of a revised
set of conditions of supervised release on the appropriate
prison sentence to impose, and vice versa.
   Since the defendant must be resentenced, we reiterate the
concern expressed in our recent opinion in United States v.
Presley, No. 14-2704, 2015 WL 3622073 (7th Cir. June 11,
4                                                  No. 14-2331


2015), with sentences that are likely to keep a defendant in
prison into his old age even though he may become harm-
less many years earlier. If the defendant in this case receives
no good-time credits, he will be 70 when he completes a 35-
year sentence; if he receives maximum good-time credits he
will be 65. If his criminal specialty were tax evasion or Ponzi
scheming, he might decide to resume his criminal career up-
on release even if he was then in his 60s or early 70s. But he
is an armed drug dealer. That is a young man’s career,
which a man would be unlikely to resume in his fifties, let
alone his late sixties or early seventies. Defendants in their
60s accounted for only 1.18 percent of persons entering fed-
eral prisons in 2012 for drug offenses. Bureau of Justice Sta-
tistics, “FY 2012 Prisoners Entering Federal Prison,”
www.bjs.gov/fjsrc/var.cfm?ttype=one_variable&agency=BO
P&db_type=Prisoners&saf=IN (visited July 13, 2015) (to re-
trieve these figures, select “Age at time of commitment” as
the row variable and “Offense type” as the column variable).
Of course “unlikely” is not synonymous with “impossible.”
In 2012, 1,479 defendants were 61 to 70 years old at the time
of sentencing, and of these 21.64 percent were sentenced for
drug-related offenses. Id. Another study found that 15 per-
cent of inmates released after the age of 50 were later rear-
rested within 3 years of their release, 41 percent for a drug-
related offense. See Office of the Inspector General, “The
Impact of an Aging Inmate Population on the Federal Bu-
reau of Prisons” 39–40 (May 2015), https://oig.justice.gov/
reports/2015/e1505.pdf (also visited July 13).
   Yet it appears that the principal justification for keeping a
defendant in prison until old age would be to deter others
from entering or persisting in the armed drug trade. But as
we noted in Presley, criminals, especially violent ones, tend
No. 14-2331                                                 5


to be persons who have what economists call a high “dis-
count rate,” meaning that they give little weight to events in
the far future, which in the case of a criminal includes the
prospect of years of prison to be served many years in the
future.
    Some criminals commit acts of such evil as to arouse
righteous indignation that demands heavy punishment
without regard to deterrence; but the defendant in this case
is a small-bore drug dealer, charged with possession of only
1.2 grams of crack with intent to sell. The district judge
needs to consider whether concerns of deterrence, either
special (deterring the defendant from committing crimes
upon his release from prison) or general (his punishment as
a deterrent to others who might consider committing similar
crimes), warrant a sentence of 420 months (admittedly a sen-
tence within the guidelines range).
   The decision of the district court is vacated and the case
remanded for further proceedings consistent with this opin-
ion.
