In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3579
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL FETERICK,
Defendant‐Appellant.
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Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:15‐cr‐50010‐1 — Frederick J. Kapala, Judge.
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ARGUED JULY 7, 2017 — DECIDED SEPTEMBER 29, 2017
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Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
PER CURIAM. Michael Feterick pleaded guilty to two
counts of bank robbery, 18 U.S.C. § 2113(a), and was sen‐
tenced to a total of 49 months’ imprisonment and 3 years’ su‐
pervised release. The conditions of supervised release include
one requiring that Feterick “participate, at the direction of a
probation officer, in a substance abuse treatment program.”
On appeal Feterick argues that this condition was imposed
2 No. 16‐3579
based on inaccurate information and wasn’t adequately ex‐
plained. He also contends that the condition, as written, gives
too much discretion to the probation officer.
I. BACKGROUND
In 2015, Feterick robbed two banks within three weeks,
each time using a note saying, “Money, no dye packs.” Within
hours of the second robbery, police found and arrested him in
a hotel room he was sharing with his girlfriend. In the room
was marijuana and drug paraphernalia belonging to the girl‐
friend.
Feterick, who is 47, was charged with both bank robberies.
After pleading guilty he told a probation officer about his
struggles with mental illness and drug use. In his twenties,
Feterick said, he had used cocaine recreationally fewer than
two dozen times. But he also had used marijuana well into his
thirties and, after quitting for a decade, started up again in
late 2014 following the death of his mother. From then on he
smoked marijuana daily until February 2015, the month be‐
fore the first bank robbery. Feterick also told the probation of‐
ficer that in 2013 he sometimes got “a little buzz” by doubling
the dose of Percocet a physician had prescribed after a dog
bite. He told the probation officer, though, that he didn’t see a
need for drug treatment.
The probation officer proposed overlapping conditions of
supervised release requiring that Feterick, first, submit to
drug testing up to 104 times annually and, second, “partici‐
pate, at the direction of a probation officer, in a substance
abuse treatment program, which may include urine testing up
to a maximum of 104 tests per year.” Feterick’s lawyer op‐
posed both conditions as unnecessary. The testing condition,
No. 16‐3579 3
counsel said, is not justified by Feterick’s prior drug use and
will “trap” him into a violation by forcing him to choose be‐
tween working or showing up for drug tests. In challenging
the treatment condition, counsel principally argued that the
evidence of ongoing drug use is minimal and the evidence of
abuse, nonexistent. The government countered that both pro‐
posed conditions are necessary because of Feterick’s past drug
use and will “promote deterrence” while also protecting the
public.
The district court rejected Feterick’s objections. Starting
with the testing condition, the court concluded:
He’s not a raging heroin addict. That I can
see … . But he’s abused prescription drugs in
the past. I know that he kept his girlfriend’s
drugs and paraphernalia in his hotel room. He’s
used marijuana occasionally from 1997 to 2004,
and after his mother’s death heʹs recreationally
used cocaine. This kind of history is enough for
me to require him to undergo testing.
The court added that testing will detect unlawful drug use
and help Feterick “stay out of prison.” And responding to
Feterick’s challenge to the drug‐treatment condition, the dis‐
trict court answered, “As I said, there’s enough in his history
to think this is warranted.”
II. DISCUSSION
Feterick argues that the district court committed two pro‐
cedural errors when imposing the drug‐treatment condition.
That condition, he adds, is substantively flawed because of
the degree of discretion given to the probation officer.
4 No. 16‐3579
Feterick’s first assertion of procedural error can be rejected
easily. In his view, the district court did not adequately ex‐
plain the possible need for drug treatment because the court,
rather than addressing that question independently, “simply
incorporated” its rationale for imposing the distinct testing
condition. But as the government correctly responds, the
court was free to refer back to its explanation for requiring
drug testing (which Feterick does not challenge). And that ex‐
planation makes evident the court’s belief that treatment may
become necessary because of Feterick’s history of drug use,
see 18 U.S.C. § 3553(a)(1), and to assure his post‐incarceration
rehabilitation, see id. § 3553(a)(2)(D).
Feterick’s second assertion of procedural error is more sig‐
nificant. He argues that the district court based the drug‐treat‐
ment condition on an erroneous finding that he had used co‐
caine in the months before the robberies. The judge said, “He’s
used marijuana occasionally from 1997 to 2004, and after his
mother’s death heʹs recreationally used cocaine.” That’s incor‐
rect; what the evidence shows is that Feterick used marijuana,
not cocaine, after his mother’s death, and he posits that the
district court likely confused his “more recent marijuana use
with cocaine abuse.” This mistake matters, Feterick insists, be‐
cause marijuana use—compared to cocaine—is more preva‐
lent and punished less harshly.
The government refuses to concede that the district court
made a mistake. Instead, the government asserts that the
“fairest reading” of the cocaine comment is that the judge
“identified” when Feterick had used marijuana and under‐
stood from the probation officer’s account of his prior drug
use that Feterick did not use cocaine recently. The government
No. 16‐3579 5
also points out that our review is for plain error because de‐
fense counsel never objected to the court’s statement about re‐
cent cocaine use.
We agree with Feterick that the judge misstated his history
of cocaine use and relied on that misunderstanding to justify
the drug‐treatment condition. Despite information in the
presentence report about Feterick’s history with drugs, the
judge’s only mention of cocaine was in his misstatement about
the timing of Feterick’s cocaine use. Even if drug treatment
might be warranted by Feterick’s history of marijuana use and
his short‐term abuse of Percocet, we aren’t confident that the
judge would have imposed the treatment condition if aware
that Feterick’s cocaine use was quite remote in time (20 years
before the bank robberies).
This procedural error compels us to vacate the drug‐treat‐
ment condition. Feterick would prefer that we stop there and
simply excise this condition from the judgment without di‐
recting further proceedings, but that is not an option in this
case. Sentencing errors, if not harmless, are remedied by re‐
turning the case to the district judge for reconsideration un‐
tainted by the error. See United States v. Poulin, 809 F.3d 924,
931 (7th Cir. 2016); United States v. Kappes, 782 F.3d 828, 86667
(7th Cir. 2015). The question, then, is whether we should order
a full resentencing or simply allow the judge to reassess the
need for the drug‐treatment condition.
We conclude that the latter option is enough in this case.
A remand for full resentencing is necessary if the sentencing
court’s error possibly affected other components of the de‐
fendant’s sentence, in particular the prison term.
See United States v. Dickson, 849 F.3d 686, 691 (7th Cir. 2017);
United States v. Anglin, 846 F.3d 954, 967 (7th Cir.), petition for
6 No. 16‐3579
cert. filed (May 31, 2017) (No. 16‐9411). Feterick challenges
only the drug‐treatment condition, and the judge misspoke
only when explaining his choice to impose that condition (and
one other that Feterick does not challenge). Nothing in the rec‐
ord suggests that the length of Feterick’s prison term (or any
other aspect of his sentence) was affected by the judge’s mis‐
understanding concerning the recency of Feterick’s cocaine
use. Thus a resentencing limited to reconsideration of the
drug‐treatment condition will suffice.
Because on resentencing the district judge could conclude
that drug treatment will not be necessary after all, we need
not consider Feterick’s additional contention that the drug‐
treatment condition as written gives too much discretion to
the probation officer. On remand, Feterick can address that
question to the district court in the first instance.
III. CONCLUSION
We VACATE the condition of supervised release allowing
for drug treatment and REMAND for resentencing limited to
reconsideration of that single condition free of any misappre‐
hension about Feterick’s prior drug use. No other aspect of
Feterick’s sentence will be affected. In all other respects the
judgment is AFFIRMED.