United States v. James Jones , 633 F. App'x 326 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 7, 2015
Decided December 21, 2015
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1129
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 697-2
JAMES JONES,
Defendant-Appellant. Virginia M. Kendall,
Judge.
ORDER
James Jones pleaded guilty to possession with intent to distribute crack cocaine, 21
U.S.C. § 841(a)(1), and was sentenced to prison and supervised release. His plea
agreement includes a broad appeal waiver. Despite that waiver, Jones filed this appeal
challenging several conditions of supervised release as unconstitutionally vague and
asking for a full resentencing. We dismiss the appeal.
For more than two years, Jones lived at and sold drugs from his nephew’s stash
house. Jones was arrested at the house with his nephew and another drug dealer. Two
loaded guns and 81 grams of crack cocaine were recovered from Jones’s living space.
Jones eventually pleaded guilty to the § 841 charge and, as part of his plea agreement,
No. 15-1129 Page 2
waived his right to appeal “any part of his sentence (or the manner in which that
sentence was determined).”
A probation officer drafted a presentence investigation report that did not include
any proposed conditions of supervised release. Counsel for Jones submitted a sentencing
memorandum but said nothing in that document about supervised release. Neither did
defense counsel say anything about supervised release at the sentencing hearing.
The district court sentenced Jones to 134 months’ imprisonment (substantially below
the guidelines range of 168 to 210 months) plus 3 years’ supervised release. The court
orally pronounced five special conditions of supervised release, including that Jones
“not possess a firearm or destructive device.” The court did not mention any of the
standard conditions, yet the written judgment issued later includes all 13 of those
conditions, 7 of which Jones seeks to challenge in this appeal. The written judgment also
expands the condition prohibiting possession of guns and bombs to include ammunition
and “any other dangerous weapon.”
Appeal waivers are enforceable and may encompass conditions of supervised release
just like any other part of a sentence. See United States v. Chapas, 602 F.3d 865, 868 (7th Cir.
2010); United States v. Sines, 303 F.3d 793, 797–99 (7th Cir. 2002). The recognized
limitations on appeal waivers are narrow and few: Waivers will not be construed to
foreclose an appellate claim that a sentence exceeds a statutory maximum or rests on a
constitutionally impermissible factor like race, or that defense counsel was ineffective in
negotiating the plea agreement containing the waiver. See United States v. Smith, 759 F.3d
702, 706 (7th Cir. 2014); Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012); United
States v. Worden, 646 F.3d 499, 502 (7th Cir. 2011); United States v. Lockwood, 416 F.3d 604,
608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). None of these
limitations applies to Jones.
He instead relies on United States v. Adkins, 743 F.3d 176 (7th Cir. 2014), an opinion
that allowed a defendant to challenge a condition of supervised release as
unconstitutionally vague despite a broad appeal waiver. Id. at 192–93. Jones reads Adkins
as “general” support for the proposition that, “notwithstanding an appeal waiver, the
Fifth Amendment’s Due Process Clause allows for appellate review of any discretionary
condition of supervised release which is so vague that no reasonable person could know
what conduct is permissible or impermissible.” That reading is a stretch. In Adkins,
which we have not applied since to excuse an appeal waiver, we were careful to
“emphasize the narrowness of our holding” and to reinforce our longstanding rejection
of a general exception to appeal waivers for constitutional claims. Id. at 193; see United
States v. Behrman, 235 F.3d 1049, 1051–52 (7th Cir. 2000). In fact, Adkins notes explicitly
No. 15-1129 Page 3
that it’s “generally unproblematic to knowingly waive a constitutional right or to lose a
constitutional right (in a clearly demarcated way and in accord with 18 U.S.C § 3583(d))
via special conditions of supervised release.” Adkins, 743 F.3d at 193.
Jones principally challenges the language prohibiting him from possessing “any
other dangerous weapon” in addition to guns, ammunition, and destructive devices. But
that condition of supervised release and the others that Jones contests are not
comparable to the condition at issue in Adkins. In that case the defendant could “not
view or listen to any pornography or sexually stimulating material or sexually oriented
material or patronize locations where such material is available.” 743 F.3d at 194. That
language, we said, was both impossibly vague (“[H]ow can we tell which images or
voices are sexually stimulating for Adkins?”) and immensely overbroad (“Read literally,
this provision might preclude Adkins from using a computer or entering a
library—irrespective of what he views in either place—because both are ‘locations’
where ‘sexually stimulating material … is available.’ Indeed, he might not be able to ride
the bus, enter a grocery store, watch television, open a magazine or newspaper, read a
classic like Romeo and Juliet, or even go out in public.”). Id. In contrast, the prohibition
against “any other dangerous weapon” is authorized by statute, see 18 U.S.C.
§§ 3563(b)(8), 3583(d), and permissible, see United States v. Armour, 804 F.3d 859, 868–69
(7th Cir. 2015).
The appeal waiver stands, and the appeal is DISMISSED.