906 F.3d 645
7th Cir.2018Background
- Solomon Smith pleaded guilty to filing fraudulent federal tax returns for 2008–2009, receiving a large IRS refund for 2008.
- The Probation Office’s PSR proposed discretionary supervised-release conditions, including (1) refrain from “any or excessive use of alcohol (defined as BAC > 0.08%)” and (2) permit probation-officer visits at any reasonable time and location (home, work, etc.).
- At sentencing the court invited objections; Smith’s counsel expressly stated the proposed conditions were "reasonable," and the court said it would impose them.
- The district court’s written judgment adopted the two conditions but omitted the parenthetical BAC > 0.08% definition, leaving “excessive use” undefined.
- On appeal Smith challenged both conditions as not tailored to him and as vague (for the alcohol ban); he also argued the visitation condition improperly allowed broad officer discretion.
- The Seventh Circuit found counsel’s on-the-record agreement waived challenge to the visitation condition but held the alcohol restriction was ambiguous/vague in the written judgment and corrected the judgment to reinstate the PSR’s 0.08% BAC definition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether visitation condition (probation visits at any reasonable time/location) was unlawful | Smith: condition not tailored; overly intrusive and not justified by offense or history | Govt/District: condition was reasonable and relevant; counsel agreed at sentencing | Waiver: counsel’s on-record approval constituted waiver; challenge to visitation condition forfeited and rejected |
| Whether alcohol restriction banning “excessive use” is unconstitutionally vague | Smith: omission of BAC definition in written judgment renders the term vague and arbitrary | Govt/District: PSR defined excessive as BAC > 0.08%; court intended to adopt PSR definition | Ambiguity/vagueness found in written judgment; appellate court corrected judgment to incorporate BAC > 0.08% rather than remanding |
| Whether conflict between PSR, oral pronouncement, and written judgment requires resentencing | Smith: needs clarification/resolution; vagueness warrants remand or vacatur | Govt: district court intended to adopt PSR; correction on appeal appropriate | Court may correct judgment when intent is clear; here corrected judgment to reflect PSR definition rather than ordering resentencing |
| Whether district court erred procedurally in incorporating PSR conditions by reference | Smith: incorporation without explicit adoption left defendant without clear notice | Govt: incorporation by reference is permissible if defendant had opportunity to review | Court: incorporation is allowed but cannot create conflict with written judgment; defendant must have opportunity to review; here correction resolves the conflict |
Key Cases Cited
- United States v. Kappes, 782 F.3d 828 (7th Cir.) (alcohol conditions must be tailored and defined)
- United States v. Thompson, 777 F.3d 368 (7th Cir.) (ban on “excessive use” of alcohol is void for vagueness without definition)
- United States v. Siegel, 753 F.3d 705 (7th Cir.) (same: undefined “excessive use” impermissibly vague)
- United States v. Bloch, 825 F.3d 862 (7th Cir.) (procedures for incorporating PSR conditions by reference; written judgment cannot conflict)
- United States v. Bickart, 825 F.3d 832 (7th Cir.) (upholding visitation condition where constrained to "reasonable time" and locations)
- United States v. Olano, 507 U.S. 725 (U.S.) (distinguishing waiver and forfeiture in appellate review)