UNITED STATES OF AMERICA, Plaintiff-Appellee, υ. SOLOMON SMITH, JR., Defendant-Appellant.
No. 16-3575
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 30, 2018 — DECIDED OCTOBER 16, 2018
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR 162-1 — Charles P. Kocoras, Judge.
Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.
Although there may be some substance to Smith‘s complaints, the procedural history of this case complicates matters. After taking time to review the visitation condition, Smith‘s attorney told the district court that it was reasonable. In so doing, the attorney waived Smith‘s present objection that the court failed to provide an adequate rationale in support of the condition. As for the alcohol condition, a procedural error by the district court creates a problem, but one that we can fix on appeal. At Smith‘s sentencing hearing, the district court purported to adopt, by reference to the presentence investigative report (PSR), a condition forbidding “excessive use” of alcohol. Importantly, the PSR explicitly defined the term “excessive use” to mean use that produces a blood alcohol concentration (BAC) in excess of 0.08%. Perhaps not coincidentally, that is the level used by the State of Illinois for purposes of its driving laws. See
I
Smith was prosecuted for filing fraudulent tax returns in violation of
Before Smith‘s sentencing hearing, the probation office prepared a PSR. The report contained proposed conditions of mandatory supervised release. One of those proposals, labeled discretionary condition 7, stated, “you shall refrain from ☐ any or ☒ excessive use of alcohol (defined as having a blood alcohol concentration greater than 0.08%); or ☐).” Proposed discretionary condition 16 read, “☒ you shall permit a probation officer to visit you ☒ at any reasonable time or ☐ as specified: ☒ at home ☒ at work ☐ at school ☐ at a community service location ☒ other reasonable location specified by a probation officer ☒ you shall permit confiscation of any contraband observed in plain view of the probation officer.” Smith raised no objections to these proposed conditions (or for that matter any others) in his sentencing memorandum. He instead requested a “sentence of probation, supplemented with special conditions appropriate to his crime,” without ever addressing the PSR.
During sentencing, the district court permitted Smith to review a written sentencing recommendation prepared by the probation office. The sentencing recommendation included the same two supervised-release conditions as the PSR. When the sentencing hearing turned to supervised release, the district court confirmed that Smith‘s attorney and the prosecutor were familiar with the proposed conditions and invited them to raise any objections they might have. Smith‘s attorney said he
THE COURT: All right. Mr. Kadzai, do you have any objection to those?
MR. KADZAI: We feel they are reasonable.
THE COURT: They are reasonable? All right. So, then, I will impose those.
A similar conversation followed with respect to the seven proposed special conditions, which Kadzai agreed were reasonable and could be imposed without further discussion.
The district court later issued a written judgment. The judgment was similar, but not identical to, the two discretionary conditions found in the PSR and sentencing recommendation:
(7) you shall refrain from ☐ any or ☒ excessive use of alcohol (defined as ☐ having a blood alcohol concentration greater than 0.08%; or ☐ ) ....
(16) ☒ you shall permit a probation officer to visit you ☒ at any reasonable time or ☐ as specified: ☒ at home ☒ at work ☐ at school ☐ at a community service location ☒ other reasonable location specified by a probation officer ☒ you shall permit confiscation of any contraband observed in plain view of the probation officer.
Note that written condition 7 did not check off the parenthetical definition of “excessive use,” unlike the PSR, which did.
Smith’s appeal challenges these two conditions on substantive grounds. Neither condition, Smith asserts, was tailored to him or his offense, and neither furthered the purposes of supervised release. In addition, he argued that the failure to define “excessive use” left him exposed to an arbitrary and indefinite restriction on his liberty.
II
Although judges enjoy “’wide discretion’ in determining conditions of supervised release,” that discretion is not without limit. United States v. Adkins, 743 F.3d 176, 193 (7th Cir. 2014) (quoting United States v. Sines, 303 F.3d 793, 800 (7th Cir. 2002)). The judge should impose conditions that are “(a) appropriately tailored to the defendant’s offense, personal history and characteristics; (b) involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation; and (c) sufficiently specific to place the defendant on notice of what is expected.” United States v. Kappes, 782 F.3d 828, 847 (7th Cir. 2015); see also
We have been less consistent in our analysis of visitation conditions. In a number of cases, we have disapproved of such conditions if they failed to qualify when or where a probation officer may impinge on his supervisee’s liberty. United States v. Henry, 813 F.3d 681, 683 (7th Cir. 2016) (rejecting requirement that supervisee submit to visits “at any time at home or elsewhere”); Poulin, 809 F.3d at 934 (same); Kappes, 782 F.3d at 850–51 (same); Thompson, 777 F.3d at 379–80 (same). In other instances, we have permitted conditions that, at least on their face, appear to be remarkably similar. United States v. Bickart, 825 F.3d 832, 837, 842 (7th Cir. 2016) (permitting “probation officer to visit the defendant at any reasonable time at home and at work”); United States v. Armour, 804 F.3d 859, 870 (7th Cir. 2015) (allowing visits between 6:00 a.m. and 11:00 p.m. “at home or any other reasonable location”); see also Henry, 813 F.3d at 683–84 (suggesting that district court curtail probation officer’s discretion by allowing visits only to reasonable locations between specified hours).
Although there are tensions between these lines of cases, this is not the proper occasion in which to dig down and see if we need to overrule one set of cases or if they prove to be compatible upon more careful study. As we noted earlier, Smith affirmatively told the district court that he had no objection to the visitation condition in his case, and so the judge had no occasion to hear argument or to reflect on both the legal requirements for visitation conditions or the way they apply to Smith. This was more than a forfeiture: it was a waiver of the right to object to that condition. Waiver is the “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). That is what Smith did. The district court expressly invited objections to the proposed visitation condition, and Smith’s attorney, with the benefit of having seen the condition in advance, responded that the condition was “reasonable.” Smith has not argued that either he or his attorney was confused or that the response did not indicate approval. As a practical matter, it may be that defendants are reluctant to object to conditions out of a fear of eliciting a longer term of incarceration or supervised release, but we cannot give any weight to such fears. Sentencing as a whole is a fraught matter for defendants, but in order for the system to work, people must raise their objections in a timely manner before the district court, so that it can take appropriate steps.
III
We now turn to the alcohol restriction. Smith is not hamstrung by waiver of his objection to this condition because the version to which his lawyer agreed included the critical definition of a BAC above 0.08%. But that limitation did not make it into Smith’s sentence. Rather than defining “excessive” either by BAC or anything else, the court said only that “the Discretionary Conditions are styled 1, 2, 4, 6, 7, 8, 14, 15, 16, 17, 18 and 22” and solicited objections to them. Smith’s attorney declared the enumerated conditions to be “reasonable,” and the court proceeded to “impose those” conditions. That was, at best, ambiguous. And the ambiguity only worsened when the definition of “excessive use” disappeared in the court’s written judgment, issued after the sentencing hearing. Smith never assented to those
Normally, when there is a conflict between an oral sentence and the written sentence, the oral sentence prevails. E.g., United States v. Johnson, 765 F.3d 702, 710–11 (7th Cir. 2014); United States v. McHugh, 528 F.3d 538, 539 (7th Cir. 2008). But this rule is of no help when there is no oral statement to which we may refer. See United States v. Thomas, 840 F.3d 920, 921 (7th Cir. 2016); Bloch, 825 F.3d at 872. With respect to the conditions of supervised release, that describes this record. In its own words, the district court sought to “short-circuit” the sentencing hearing by incorporating by reference the conditions proposed in the PSR. That was its prerogative, see Bloch, 825 F.3d at 872, but that choice was not risk-free. When the district court opts to incorporate conditions by reference, the defendant must have had an “opportunity to review the proposed conditions before sentencing,” and the subsequent written judgment cannot conflict with either the written notice or the conditions pronounced at the sentencing hearing. Thomas, 840 F.3d at 921; see also Bloch, 825 F.3d at 872. Those limitations ensure that the defendant has ample opportunity to object. Bloch, 825 F.3d at 872. They also prevent uncertainty over what conditions or version of a condition the district court intended to impose; liberty should not turn on guesswork.
Just such an uncertainty is present here. If the court meant to limit the alcohol condition to consumption that led to a higher BAC than 0.08%, it needed to say so. If it did not so limit the term “excessive use,” then, as we have explained, we have both the problem of vagueness and (if excessive means anything more than zero) why this was right for Smith.
Something therefore needs to happen. One option would be to order a plenary resentencing; another would be to vacate the alcohol condition and issue a limited remand to the district court for resentencing only on this point. We have followed both approaches. Compare, e.g., Thompson, 777 F.3d at 382 (remanding for resentencing in toto because “reconsideration of th[e] conditions may conceivably induce ... judges to alter the prison sentence”); and Kappes, 782 F.3d at 866–67 (adopting the Thompson approach); with Bickart, 825 F.3d at 842 (limited remand); Poulin, 809 F.3d at 936; United States v. Purham, 795 F.3d 761, 767–68 (7th Cir. 2015); and Siegel, 753 F.3d at 717. Or we could simply correct the judgment ourselves. In our view, this last approach is the best one for Smith’s case. Nothing in this record even hints that the district court viewed the contested conditions of Smith’s supervised release as a partial substitute for incarceration. Indeed, in general, it is likely to be the case that the substitution effect is not present for conditions of supervised release that must be set aside for failure to advance the purposes of supervised release, lack of clarity, or procedural infirmity. If a condition is unsuited to the defendant or his offense, it is hard to see how it could properly serve as an offset to incarceration. If the district court fails, as here, to impose its intended condition, a limited remand would only serve to clarify what we already know the court intended to do. Since we are confident that we can tell what the district court intended, we can follow that path.
IV
This case is a good candidate for a simple correction. By reading off the numbered
We thus order that the sentence be corrected to include, for purposes of discretionary condition 7 of Smith’s supervised release, the limitation tying excessive alcohol use to a BAC of 0.08%. In all other respects we AFFIRM the judgment of the district court.