Case Information
*1 Before W OOD Chief Judge , P OSNER R OVNER , Cir cuit Judges .
P OSNER Circuit Judge
. pleaded guilty receiving child pornography sentenced years plus fine restitution years super vised He filed notice appeal, lawyer, federal public defender, asserting appeal frivo lous—in event should dismissed ado— filed Anders brief asking us leave withdraw *2 the defendant’s lawyer and advising us the ant does wish to challenge his guilty plea. See Anders California U.S. (1967). are troubled one thing, but an important
thing, the handling the so far—how defense coun sel and the judge dealt with conditions supervised release. At the sentencing hearing defense counsel advised the judge the did wish challenge guilty plea the proposed conditions All those conditions had been proposed the pro bation service its presentence report, nowhere mentioned the Anders brief. The judge recite the conditions the sentencing hearing; and although the said he had read the proposed discussed them with lawyer before sentencing hear ing, judge didn’t ask him whether he was waiving (or none) possible them. Before sentencing hearing lawyer had objected single condition, forbidding use possess electronic devices able take photographs record videos; service had responded objection deleting report.
At sentencing hearing asked he’d “had enough time review [the presentence report] discuss with counsel,” said he had. Telling “you right me read each one [the sug gested presentence report] go over them with you,” asked him he willing waive reading. chimed hadn’t had op portunity discuss waiver client, asked *3 judge give them “just … a moment” confer about the matter. The judge obliged, after must have been a brief conference the courtroom (remember the judge had given them “just a moment” confer) the ‐ signed the waiver, which stated had no ob ‐ jection the conditions of judge’s reading of them. cannot confident without additional guidance from either lawyer defendant was capable of knowingly waiving challenge any, let alone all, of conditions of A recurrent problem regarding waivers conditions of su ‐ pervised because conditions don’t take ef ‐ fect until released from prison criminals often high discount rate (meaning they give little weight events future than immediate fu ture), sentenced long term (10 years Hill’s case) quite likely register no interest conditions prompting by lawyer; this under scores importance guidance from care ful inquiry judge.
That importance was magnified this prob lematic nature several (apart mandatory conditions, which course responsible, see U.S.C. § 3583(d)). One prob lematic “the shall knowing ly possess firearm, ammunition, destructive device. possess dangerous weapon unless approved Court.” Does mean approval can permitted pos sess “destructive device,” such live ammunition, *4 is weapon, just as water is a cup? Could judge allow to own gun, course is “a dangerous weapon”?
Another condition states that “the report to probation officer manner and frequency directed Court [the] probation officer.” Requiring report to his probation officer unexceptionable, Thompson (7th Cir. 2015), shouldn’t “manner” “frequency” be defined, at least be qualified “reasonable”? And while Poulin 2016), called “a classic administrative requirement that can explanation after ex plained why necessary,” present explain why what sub stantive need distinct from ad ministrative she imposing, saying “a five year term will allow probation get ant with mental health, sex offender treatment, treatment needs at assist him his employ ment needs reintegration back into society, reduce recidivism, protect public crimes, afford specific deterrence. Certainly, will know within five years Mr. Hill true word going turn life around become productive member society.” Thus effect she left everything probation service.
As requires “fol low instructions probation officer,” shouldn’t there hint least those instructions might be? Can officer instruct do yoga, attend church, shave off beard? It’s true can *5 15 ‐ 3090 5 always ask modify or eliminate condition release, but how likely is he do so, at risk irritating judge? Shouldn’t “instructions” qualified “reasonable”?
Another condition requires “notify probation officer at least ten days pri to, or within seventy ‐ two hours after, any change in resi dence employment.” But know when he must notify probation officer at least ten days prior change when may wait until after change? Maybe idea if fired from job notice days in notify his probation officer; employer notifies him he’s being fired at least days in advance termination date must notify probation officer immediately. Who knows what meant.
A further problem condition absence any indication types change in employment must reported. answered question in United States v. Armour , F.3d 859, (7th Cir. 2015), noting approvingly “the [had] required [the defendant] ‘no tify Probation … time you leave job accept job.’” In contrast, Kappes, 2015), said, quoting Thompson supra requiring notify officer “change employ ment” too vague, because fails indicate “whether change employment just means changing employers includes changing one position another same employer same workplace.” same vagueness attends change employment present *6 case. failure Hill’s lawyer note this defect seems inexcusable, as would be unrealistic suppose Hill himself noticed it.
Another condition this case, criticized for vagueness our recent decision Henry , 2016), requires “permit probation officer visit … at home elsewhere permit confiscation any contraband observed plain view probation officer” (emphasis added). are troubled by vagueness “or elsewhere.” Again this problem neither remarked by defendant’s nor likely identified problematic by himself.
Another questionable requires defendant, “while any financial penalties outstanding, [to] apply monies received income tax refunds, lottery win nings, judgments, and/or anticipated unex pected financial gains outstanding ordered fi nancial obligation.” What unemployable, one more these financial gains source income? Shouldn’t elementary needs balanced against government’s revenue needs (less certainly) against claims restitution victims crimes? Since financial gain could refer income, this potentially conflicts payment schedule set court, requires Hill pay either $50 per month percent net monthly income, whichever greater.
Still another questionable condition, one criti cized Kappes supra re quires “work regularly lawful occupa tion unless excused officer schooling, *7 ‐ training, acceptable reasons.” The assumption must be that can find regular work. But what if he’s unemployable? Is that “acceptable reason” work ‐ ing?
Hopelessly vague is further condition, again crit icized in Kappes id . that “shall notify third parties risks that may be occasioned defend ant’s criminal record personal history characteristics.” Does this mean he happens standing next to six year old girl soda fountain he has warn her he been convicted receipt child pornography? Does he have explain her what child pornography ? vagueness so many super vised imposed this case important because more vague is, harder it determine restrictions actually imposes them so onerous should object.
There more criticize have said enough dicate should received more careful scrutiny fense counsel judge—unless there was deed knowing waiver defendant. cannot tell, because confirm had conditions, because record does reveal how long huddled courtroom before ant agreed sign waiver. Probably huddle was brief, since noted earlier said she giving them “just moment” decide there waiver.
But out of an abundance of caution we decided remand the case for a determination of the length of the huddle and, relatedly, whether the all the conditions of supervised release. It might seem that should go further, and remand the for revision of the conditions of supervised for a full resentencing. There potential substitutability ‐ tween prison the conditions. Both types punishment restrict the freedom. And therefore things being equal (which often they are not, however), the more restrictive conditions the less the need very long prison sentence, while longer prison sentence less need very strict conditions. E.g., Downs (7th Cir. 2015). But remand such scope would premature, given possibility just discussed made knowing waiver ob ‐ jections Should limited remand ordering reveal make knowing waiver challenges con ‐ ditions recommended presen tence report judge, defendant, advice counsel, will still need decide correct ing unsound questionable we’ve iden tified carry too great risk corrections would lead increase length ant’s sentence. Of course might decide stead reduce it, just means there both up side downside risk, entitled opportunity decide take chance up side risk will materialize. Bryant 2014).
So, conclude, limited remand we’re ordering results determination knowingly waived all challenges release, will grant Anders motion will end case. If instead determination waive all challenges conditions, case will again come before us will need decide (and through counsel advise us decision) challenge conditions, since successful challenge, fol lowed remand resentencing, will leave free impose longer, well as alternative short er, sentence. For now, however, need remand determination know ingly district court. continue represent on remand, ordered file status report within days court’s ruling on remand.
C ASE R EMANDED WITH D IRECTIONS