Case Information
*1 Before P OSNER S YKES H AMILTON Circuit Judges . H AMILTON Judge
. Appellant Tyree Neal was sen tenced prison after pleading guilty federal crimes He released prison sent back another eight een months after violating several super vised When completed new impris onment he asked rescind spe *2 cial condition of supervised release authorizing warrantless searches person and residence. That condition, Neal argued, is inappropriate for offenders. district court denied the rescind the condition, prompting this appeal regarding the search condition. But on appeal Neal also challenges first time the all the standard supervised that were initially again
A threshold question whether district court is author ‐ ized revisit arguably unlawful condition if that challenged on di ‐ rect not. We conclude U.S.C. permits request relief con dition substantive grounds, such as substantively unlawful it longer serves purposes release. Section does not authorize such late challenges based asserted procedural errors time original sen tencing, such claim failed provide suf ficient explanation there sufficient evidence support then unchallenged condi tion. On merits, however, uphold search condi tion. decline address appellate standard He waived claim by raising it court. I. Factual Procedural History pled guilty conspiracy charge substan
tive counts involving powder crack cocaine. June sentenced him total months prison followed three years super *3 ‐ vised He did sentence. Neal re leased from prison December
A month later, January Neal’s probation officer petitioned district court add special condition su pervised release requiring Neal submit mental ‐ health treatment. After hearing district court imposed and modified another prohibiting Neal possessing controlled substances unlawfully also requiring periodic drug testing. Neal appealed drug testing condition. affirmed based on Neal’s history abuse. Neal 2011). December probation officer again asked district court modify Neal’s supervised re lease. The probation officer proposed curfew, requiring Neal home 9:00 p.m. 5:00 a.m. six months. The probation officer sought special requiring Neal submit warrantless searches “per son, residence, real property, place business, computer or electronic communication or data storage device or media, vehicle, other property” if there reasonable suspicion finding contraband evidence violation release condition. Before court acted request, however, probation officer peti tioned revocation based numerous violations, including lying officer possessing cocaine marijuana.
During revocation hearing March admitted violations. revoked imposed eighteen more months prison, plus new three year follow. orally eight special conditions, *4 including search officer had requested. court’s written judgment listed thirteen “standard conditions supervised release” were not mentioned during hearing. These same standard conditions, only minor differences, Neal’s sentencing in
Neal filed notice appeal, but his lawyer sought leave withdraw on ground an frivolous. Anders California U.S. (1967). No concern was raised any counsel’s submission or Neal’s response opposition filed Rule 51(b). February granted counsel’s motion withdraw dismissed Neal’s appeal. Neal F. App’x 2014).
Neal released prison again June began his second release. Two weeks later he filed pro se modify super vised asked counsel appointed. That mo tion did not identify statute rule authorizing relief. It sought special set aside “inappropriate” but did single out par ticular condition. appointed counsel, who did file amended motion.
At hearing motion, his lawyer explained Neal contesting only four eight special release. After hearing, dropped challenges all requiring him submit warrantless searches person property based reasonable suspicion contraband violations super vised limit our discussion condition. *5 ‐ probation officer testified that search condition was necessary because Neal had failed three drug tests and had a history deceiving officers using drugs while on Neal argued a condi tion authorizing warrantless searches can be only on persons convicted sex offenses against minors, not those convicted drug offenses. Neal also argued, citing Siegel 2014), district judge had erred revocation hearing imposing search without making specific finding necessity. court concluded search
was necessary because Neal previously used drugs while yet was balking at even drug treatment. court noted search is “not wide open, ‘I can come your house time day night’” provision. Instead, explained, search must conducted reasonable time reasonable manner based reasonable suspicion finding contraband some other evidence violation. Neal filed notice appeal assigned new counsel.
II. Analysis
On Neal continues insist special condi tion authorizing warrantless searches appropriate only those convicted sex offenses against minors, crimes. argues, citing Thompson 2015), “full remand required” cause, when present im posed did justify re imposing thirteen standard conditions. Before we can turn these questions, must consider what circumstances *6 6 14 3473 may use a post judgment motion contest a chal lenged direct but not.
A. Availability Motion Under 18 U.S.C. § 3583(e)(2) Conditions are part a defendant’s sentence, Thompson , 777 F.3d 373, avenues available alter a sentence limited. Apart a direct appeal, options might include a prompt mo tion correct clear error, Fed. R. Crim. P. 35(a) (fourteen day limit); for reduction reward sub stantial assistance, Fed. R. Crim. P. 35(b); petition sen tence reduction under retroactive amendment Sen tencing Guidelines, 18 U.S.C. § 3582(c)(2); an application vacate illegal conviction sentence, 28 U.S.C. § See Suggs v. United States , 705 F.3d 279, 281 (7th Cir. 2013); United States v. Redd , F.3d 649, 650–51 (7th Cir. 2011); Romandine v. United States , F.3d 731, 734–35 (7th Cir. 2000); United States v. Vilar F.3d 543, (2d Cir. 2011); Blackwell 947–48 (10th 1996). addition, as general proposition, may modify time U.S.C. 3583(e)(2). Ramer 2015); Evans 2013). At oral argument identified 3583(e)(2) as authority “Motion Modify Con ditions Supervised Release.” agree proper, path conclusion simple as “at time” text might suggest.
Section provides:
Modification of conditions or revocation. — may, after considering the factors set forth section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) — (2) extend term of if less than the maximum authorized term previ ‐ ously imposed, and may modify, reduce, or en ‐ large the conditions of release, time prior to the expiration or termination of the term of release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating modification of pro ‐ bation and provisions applicable ini tial setting terms and post supervision … . references 3583(e) portions 3553(a) incor porate, for purposes decisions modify su pervised release, nearly all original sentencing goals, excepting only need for reflect serious ness offense, promote respect law, provide just punishment, directive consider “kinds sentences available.”
There may many reasons modify clarify release, even long after supervision imposed. Evans 732–33 (modification permitted out violation even changed circumstances; modification permitted respond changes supervisee’s circum stances new ideas methods rehabilitation); Lilly 2000); Fed. *8 8 14 3473
Other circuits, too, recognize § 3583(e)(2) can used alter release promote effective supervision. This is true even if change is prompted not changed circumstances by court’s ‐ ficer’s recognition shortcoming in original arguably could have foreseen when term first imposed. See United States v. Bainbridge , 746 F.3d 943, 946–50 (9th Cir. 2014); States v. Lonjose , F.3d 1292, 1296, 1302–03 (10th Cir. 2011); Unit ‐ ed States v. Begay , F.3d 1168, 1170–73 (10th Cir. 2011); Davies F.3d 2004); Unit ed Lowenstein 1997).
We not yet decided whether scenarios allowing modification include delayed contention errone ously first place. However, we recently adopted fair ly broad approach “at time” language § 3583(e)(2), holding it allows challenge lawfulness even while pending. Ramer (dis trict could act parties’ joint un der 3583(e)(2) correct unlawful relating col lecting restitution). aware three circuits with precedential opinions
addressing scope language not consistent with our approach, though do necessarily disagree results those cases. Lussier (2d 1997), Second held whose conviction were al ready final anew restitution original sentence. *9 in Lussier had not challenged restitution term direct appeal even under U.S.C. § 2255. Because one release to make restitution pay ments, however, he argued that he use § 3583(e)(2) years later bring, in effect, a collateral challenge that restitution order. The Second Circuit rejected that effort. agree core reasoning Lussier that § 3583(e)(2) should used manner, which evade detailed statutory scheme for orderly timely appellate review sentences, including restitution orders.
The Lussier opinion used broader language, howev er, seeming extend its reasoning argument any is illegal respect: “The plain language subsection 3583(e)(2) indicates il proper ground modification under this provision.” The Lussier court reasoned illegality basis challenge direct under U.S.C. § 3742(a) under U.S.C. § while directs consider goals sentencing 3553(a) makes reference illegal ity.
The Fifth Ninth Circuits followed this broader language reasoning Lussier . Hatten 1999), tried had delegated probation officer decisions restitution payment schedule. government agreed correct error. did so, adopting court’s order same schedule officer chosen. On appeal, Fifth held *10 the district court lacked jurisdiction make the correction, following the broad language in Lussier challenges legality supervised conditions. Gross 2002), the Ninth Circuit followed the broad language Lussier and Hatten . The Gross still appeal ing his original sentence for bankruptcy fraud when he tried the court modify his limited his business prop erty dealings. The Ninth Circuit held modification could based on finding illegal, it remanded matter court consider whether statutory factors changed circumstances call modification conditions. But see Miller & n.1 2000) (reading both Lussier Hatten narrowly, limited chal lenges based on original sentence).
Also consistent with these decisions, Second Myers (2d 2005), considered on direct defendant’s constitutional release. The re jected government’s argument issue should deferred on theory sentencing revisit challenged time 3583(e)(2). constitutional issue (restrictions on contact his own son) raised timely proper way direct appeal. Second Cir cuit found reason defer decision issue until completed prison began *11 parties have addressed these decisions, nor have we found a precedential appellate opinion disagreeing with the broader language them. We no disagreement with the results Lussier or Myers . In each case the appeals reached a result aimed ensuring orderly pro ‐ cessing appeals. In Lussier the defendant tried to to bring late collateral challenge to res ‐ titution component original itself. Myers brought timely challenge to on direct appeal, Second under standably saw need to defer decision. (We are less con fident results Hadden Gross they are al so factually distinguishable our case.) persuaded, however, by broader language interpreting implicitly barring challenges to legality current When confronted with serious challenge currently binding condition—one enforced sending back prison—we believe would need much more explicit statutory direction than find text 3583(e) refuse consider issue. alternative view require person supervi sion who sought an ambiguous arguably il legal restraint liberty violate risk return prison. Consistent this concern, ad visory committee notes Rule 32.1 explain person (and now release) should able obtain clarification modification ambiguous condi tion without first having violate it. Fed. R. Crim. P. 32.1,
We conclude § 3583(e)(2) better interpreted al ‐ low bring substantive challenges cur ‐ rent supervised release. This view is, we believe, more consistent with aims re lease and with language and evident purpose 3583(e)(2), which, again, allows modification “at time.”
This approach consistent and follows our earlier decisions in closely related circumstances. Silvious F.3d 370–71 (7th 2008), de fendant argued direct appeal some su pervised were overbroad. Because he raised issues in court, we reviewed only plain error. We held there plain error precisely because challenged “readily modifiable request” and Federal Rule Criminal Procedure 32.1. explained: “Encouraging this simple expedient remedy erroneously condi tions, rather than perpetuating expensive time consuming appeals resentencings, promotes integrity public reputation criminal proceedings.”
Similarly, Tejeda 2007), we held direct appeals court’s erroneous delegations authority ficer determine details treatment testing programs did amount plain error requiring immediate correction because provided means correcting error once defend ants actually began their And McKissic 2005), held direct overly broad *13 13 14 ‐ 3473 release plain error requiring immediate correction because obtain correction later, when supervised release began, 3583(e)(2). point supervised release rehabilitate persons discharged prison assist their law abiding re ‐ turn society. See United States v. Johnson , 529 U.S. 53, 59 (2000); United States v. Kappes , 782 F.3d 828, (7th Cir. 2015); United States v. Aldeen , 792 F.3d 247, 252 (2d Cir. 2015); United States v. Sullivan , 504 F.3d 969, 972 (9th Cir. 2007); Armendariz , F.3d 361 2006). Conditions should facilitate an offend er’s transition back ordinary life rather than stand “’a significant barrier into full reentry into society.’” Goodwin F.3d 2013), quot ing Perazza Mercado F.3d (1st 2009). Protection public further crimes by an important goal U.S.C. 3583(e), referring 3553(a)(2)(C).
To these ends, law gives courts flexibility discretion formulate beneficial plan re lease. But “a judgeship does come equipped crys tal ball,” so predictions appropriate su pervised imperfect. Kappes, at 838.
Section accommodates these uncertainties allowing changes offender’s time. Evans at 732–33; Davies It gives parties judges mecha nism ensure they impose remain rele vant beneficial. Conditions may need altered fit changes society (a good example recent years has practical necessity some access internet, which *14 14 14 ‐ 3473 earlier considered luxury) or to account “’new ideas methods rehabilitation.’” Davies , 380 F.3d at quoting Fed. R. Crim. P. 32.1, Advisory Committee note Rule 32.1(b) (1979); see Evans F.3d at 732–33; Begay , F.3d at n.2.
Modification might also be warranted address issues arising with real world applications particular conditions. Lilly (explaining 3583(e)(2) authorizes defendant seek “clarification term or su pervised release so defendant may have an oppor tunity comply with court’s order without first having violate it”); see Mickelsen 2006) (affirming release con dition requiring officer’s permission contact with children years old; seek relief arbitrary denial permission contact with grandchildren). do see reason treat arguably facially invalid or even unconstitu tional differently are ambiguous or outdated. A should “simulate life after program’s end.” Perazza Mercado That goal be defeated subjecting offenders con ditions unconstitutional or otherwise fa cially invalid. An offender saddled fatally vague overbroad may more likely fail. very nature some invalid makes compliance diffi cult uncertain, misstep risks unjustified return prison.
It might argued it necessary read “at time” literally since already has *15 available a direct appeal sometimes § contest the of of release. And certain ly do not mean suggest § 3583(e)(2) can be used for collateral terms of the underlying sentence, which the Second rejected Lussier . But the detailed of distant term of typical ly far from the mind of defendant at sentencing. Thompson at 373; Bryant 2014); Siegel at Most fundamental, it difficult for the judge, the probation office, counsel, the predict reliably which condi tions will best fit defendant’s situation years hence. “at time” term § 3583(e)(2) provides all actors with means tailor situation. appropriate balance should bar using argue facially valid must be rescinded simply because misstep manner it long ago. Examples include arguments not adequately explained or linked offense conviction, or evidence or other information presented at original sentencing did provide sufficient support. To stay consistent statutory scheme for sentences, avoid appeals waived or forfeited issues, where it likely difficult government office prepare fair “do over” original sentencing, those sorts procedural shortcomings must raised first opportunity all. That should leave only substantive challenges raise real concerns offender’s society’s prospects benefitting Under this interpretation 3583(e)(2), calling into *16 16 14 3473 question substantive several special then governing within scope statute.
B. Special Condition Authorizing Warrantless Searches turn merits search condition, can be brief. cites no authority from Title United States Code, Sentencing Guidelines, suggesting special con dition permitting warrantless searches can be applied only sex offenders, drug offenders. fact, while Sentencing Commission recommends persons convicted sex offenses against minors always subject special condition permitting warrantless search es, U.S.S.G. 5D1.3(d)(7), Commission has said same “may otherwise appropriate partic ular cases.” 5D1.3(d).
Special authorizing warrantless searches imposed frequently prosecutions other crimes, includ ing crimes, most often without objection. See, e.g., United States v. Monteiro , F.3d 465, 469–70 (7th Cir. 2001) (access device fraud); United States v. Betts F.3d 872, (9th Cir. 2007) (conspiracy defraud States); United Kingsley 2001) (possession firearm felon); Germosen (2d 1998) (conspiracy commit wire fraud); Sharp 1991) (drug conspiracy). There legal obstacle search this case.
As noted, cannot argue years after su *17 17 pervised without adequate supporting evidence explanation, through some other procedural error. To extent Neal has raised any substantive chal lenge already addressed, search is reason able. Neal objected participating drug treatment, yet he used drugs while violation prohibiting unlawful possession con trolled substances. district court sought discourage further use. Given Neal’s background, search con dition reasonably related goal.
C. Thirteen Standard Conditions Supervised Release All remains Neal’s disagreement stand ard conditions his release, many which we criticized Thompson later decisions. conclude Neal waived claim about standard conditions saying nothing about them court. True, his pro se submission open ended, government notes, appointed lawyer explicitly narrowed dispute search other special conditions longer contested. By doing so, intentionally relin quished claim standard conditions super vised release. See United States v. Olano U.S. 725, (1993); Jacques (7th 2003); Staples 2000). When defense has identified specific evaluate, we do expect hunt other problematic release. Dunkel 1991).
Accordingly, AFFIRM denial modify R. Crim. P. 32.1, Advisory Committee notes (1979).
Advisory Committee notes (1979).