United States v. Brave
2011 U.S. App. LEXIS 11594
| 8th Cir. | 2011Background
- Brave pled guilty to aiding and abetting the abuse of a minor; district court imposed 36 months of probation with special conditions.
- At sentencing, the court orally imposed Special Condition 7 restricting Brave from residing with minors, contacting the victim, and similar prohibitions.
- After sentencing, the court issued a written judgment that included a broader version of Special Condition 7 prohibiting contact with Brave's children in any manner without written approval.
- Brave appealed the written condition, arguing it exceeded the oral judgment and unconstitutionally restricted parental rights.
- The government conceded the written condition broadened the oral judgment, so the court vacated the broadened language and remanded to conform the written condition to the oral pronouncement; Brave’s appeal waiver limited review of the rest of Special Condition 7.
- The court indicated that, if review were available on the merits, Brave’s arguments would be rejected; the appeal waiver prevents review except for miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the written Special Condition 7 broaden the oral judgment? | Brave argues the written version is broader. | Government agrees the written version broadens and must conform. | Yes; broadened phrase void; must conform to oral judgment. |
| Is Brave’s appeal subject to her waiver of appeal? | Brave argues waiver does not bar review of this issue. | Government maintains waiver bars review absent miscarriage of justice. | Waiver bars review of this issue. |
| Should the court consider the merits of Brave’s challenge to Special Condition 7 beyond the waiver issue? | Not explicitly stated; seeks merits. | Not necessary due to waiver. | If reached, merits would be rejected; but waiver governs. |
Key Cases Cited
- United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc; judgment determined by oral pronouncement controls)
- United States v. Tramp, 30 F.3d 1035 (8th Cir. 1994) (oral pronouncement governs judgment)
- Johnson v. Mabry, 602 F.2d 167 (8th Cir. 1979) (written judgment cannot broaden oral judgment)
- United States v. Durham, 618 F.3d 921 (8th Cir. 2010) (written condition refined to conform to oral judgment)
- United States v. Love, 593 F.3d 1 (D.C. Cir. 2010) (conforming written condition to oral judgment)