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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13-1641 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROY BAKER, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 1:12-cr-10035-MMM-JAG-1 — Michael M. Mihm, Judge. ____________________ ARGUED NOVEMBER 12, 2013 — DECIDED JUNE 17, 2014 ____________________ Before ROVNER and SYKES, Circuit Judges, and DURKIN, District Judge. ∗ DURKIN, District Judge. Individuals convicted of sex of- fenses are required under federal and state law to register as ∗ Of the United States District Court for the Northern District of Illinois, sitting by designation. 2 No. 13-1641 a sex offender with the local law enforcement agency where they reside. Roy Baker has repeatedly chosen to ignore this requirement since the first time he sexually assaulted a woman in 1982. This habit caught up to him for the third time in May 2012 when he pled guilty to a single count of failing to register as a sex offender, in violation of
18 U.S.C. § 2250(a). The district judge sentenced Baker to 77 months’ imprisonment, followed by a life term of supervised release. The judge also imposed eight special conditions of super- vised release. Baker now challenges the length of his super- vised release term and four of those special conditions. The government agrees that the supervised release term and some special conditions should be vacated. For the following reasons, Baker’s sentence is affirmed in part and vacated in part. BACKGROUND I. Baker’s Underlying Conduct Baker was convicted of criminal sexual assault in Chica- go, Illinois, in January 1982 and July 1983, and sentenced to concurrent 8-year prison terms. He was released on parole in 1986, and within three months of that release, kidnapped, threatened, and sexually assaulted two other women. For those state offenses, Baker received concurrent 28-year pris- on sentences. Baker was released from prison on parole in 2000 but lat- er taken back into custody in 2002 to serve a 2-year prison term for a state aggravated fleeing offense. Upon his subse- quent parole release in March 2003, Baker was told to regis- ter as a sex offender. He did not, and was convicted in March 2004 in an Illinois state court for failing to register as No. 13-1641 3 a sex offender. He received a 30-month term of probation, though he later violated his probation and went to jail for 6 months. Baker completed his probation sentence in 2007. In April 2007, Baker sought employment with a restau- rant in the food court of an Illinois shopping mall. He claimed that he had no prior felony convictions—a lie he lat- er acknowledged was necessary in order to secure employ- ment. Baker continued to work at the restaurant until he was fired in December 2007 as a result of conduct involving two underage girls. On December 6 or 7, 2007, Baker invited two 14-year old girls to join him in the back area of the restau- rant. He proceeded to ask the girls sexual questions and if they would engage in explicit sexual activity with him. Frightened, the girls left the area but not before Baker gave one of them his phone number. The next day, one of the girls—who were together at the time—called Baker and pre- tended to be the other girl. Baker repeated his desire to en- gage in sexual relations with the girl, but the conversation went no further. That was the last time Baker ever spoke with the girls. Nevertheless, one of the girl’s mothers became aware of the incident and contacted police. The police inves- tigated the complaint, which led to the discovery of Baker’s extensive criminal history and prompted Baker’s employer to fire him. For reasons unknown, the state’s attorney’s office handling the matter declined to prosecute the case. Baker was involved in various state criminal matters over the next four years, including a domestic violence incident for which no charges were filed, an arrest for violating bail bond, and an arrest for driving with a suspended license and illegally transporting alcohol. Then, in February 2011, Baker 4 No. 13-1641 committed a second state sex offender registration violation by failing to report his employment at a new restaurant. Baker was incarcerated and later released on bond in March 2011. A condition of Baker’s release required him to partici- pate in a substance-abuse treatment program, for which he checked into a residential program. Baker was discharged from that program unsuccessfully after failing to attend drug treatment and testing positive for alcohol. Baker pled guilty to the state failure to register charge in November 2011, and had his sentencing date scheduled for February 3, 2012. Another condition of Baker’s March 2011 release was to refrain from visiting social networking or dating websites. Baker ignored this and used the alias “Rob Baker” to create a profile on a dating website that included his photo and other personal identifying information. Doing this allowed Baker to begin an online relationship in November 2011 with a woman who lived in Michigan. The pair eventually became close, and Baker moved to Michigan to live with the woman and her children, ages 8 and 12. Baker informed the woman of his sex offender status, and she showed him the local Michigan police station where Baker needed to register. Again, Baker not only made the conscious decision to not register, but he also lied and told the woman that he had. He also did not clear his departure from Illinois with the proper Illinois authorities. Baker’s February 3, 2012 sentencing date on the second failure to register charge came and went without a word from Baker. A warrant for his arrest was issued on February 8, 2012, after Illinois authorities discovered Baker was two months late in reporting for sex offender registration and No. 13-1641 5 had failed to update his new address. Shortly thereafter, on February 22, a police officer stopped Baker in Michigan for speeding. The officer discovered the arrest warrant and im- mediately took Baker into custody, where Baker was pro- cessed and later transported back to Illinois. On March 21, 2012, a federal grand jury in Peoria, Illinois, returned a one-count indictment charging Baker with violat- ing the Sex Offender Registration and Notification Act (“SORNA”) by traveling interstate and failing to register or update his registration as a sex offender. See
18 U.S.C. § 2250(a). Baker pled guilty to the charge on May 31, 2012, without the benefit of a plea agreement. II. Sentencing The U.S. Probation Office prepared a presentence inves- tigation report (“PSR”) for the district court. The total of- fense level was a 13 with a criminal history category of VI, making the guidelines range 33 to 41 months’ imprisonment, see U.S.S.G. § 5C1.1(f), with a 10-year statutory maximum. The PSR noted that this might under-represent Baker’s crim- inal history because the 1982 and 1983 sexual assault convic- tions were too old to be counted, and Baker was never charged for the incident at the mall restaurant. The PSR also noted that the applicable supervised release term was 5 years to life, citing
18 U.S.C. § 3583(k). Lastly, the Probation Office sent the parties a letter describing eight special condi- tions that it would recommend as part of Baker’s supervised release. The government filed a sentencing memorandum and advocated for the statutory maximum term of imprison- ment, noting the restaurant incident, Baker’s false employ- 6 No. 13-1641 ment applications, and the fact Baker erroneously told the woman he met online that he had completed his sex offender registration in Michigan. Baker opposed the government’s request for an upward departure and a life term of super- vised release, as well as objected to six of the proposed spe- cial conditions of release, including a ban on alcohol; partic- ipation in an internet monitoring program; a ban on contact with minors, including his own minor children; 1 and a pro- vision requiring him to participate in a sex offender treat- ment program. Baker’s sentencing hearing occurred over the course of two days in January 2013. On day one, the government pre- sented the testimony of four witnesses in aggravation. They included the district manager of Baker’s employer at the time of the restaurant incident, the two young girls Baker solicited for sexual relations at the restaurant, and the police detective who investigated the incident. On day two, the dis- trict court began by addressing Baker’s objections to the PSR. Regarding the term of supervised release, the sentencing judge stated, “So, it is my belief that the range available to me is 5 years to life.” The judge next addressed Baker’s ob- jections to the conditions of supervised release, overruling all of them but modifying the internet-monitoring condition to say that the software should only block access to “adult rape-related websites and child pornography websites.” The district judge then proceeded to announce Baker’s sentence. Adopting the factual findings and guidelines cal- 1 The PSR listed Baker as having three minor children: an 8-year old, a 20-month old, and a 6-month old. No. 13-1641 7 culation contained in the PSR, the judge announced an up- ward departure from the guidelines range and imposed a 77-month prison term, to be followed by a life term of su- pervised release. Each of the eight special conditions of re- lease was also imposed. The written judgment listed the four conditions at issue on appeal (i.e., conditions 1, 3, 4, and 8) as follows: 1. You shall refrain from any use of alcohol and shall not purchase, possess, use, distribute, or adminis- ter any controlled substance or mood altering sub- stance or any paraphernalia related to any con- trolled substance or mood altering substance, ex- cept as prescribed by a physician. You shall, at the direction of the probation officer, participate in a program for substance abuse treatment including not more than six tests per month to determine whether you have used controlled substances and or alcohol. You shall pay for these services as di- rected by the probation office. *** 3. You shall participate with the U.S. Probation Of- fice’s Computer and Internet Monitoring Program (CIMP) during your term of supervision. The monitoring program will start as soon as possible after your supervision term begins. You shall sign the rules of the Computer Internet and Monitoring Program and comply with the conditions of this program. During this time: A. You shall install filtering software on any com- puter you possess or use which will monitor/block 8 No. 13-1641 access to adult rape[-]related websites and child pornography websites. You shall allow the proba- tion officer unannounced access to any computer you possess or use to verify that the filtering soft- ware is functional. You shall pay for the cost of the filtering software as directed by the probation of- ficer. *** 4. You shall have no contact with any person under the age of 18, except in the presence of a responsi- ble adult who is aware of the nature of your back- ground and current offense, and who has been approved by the probation officer. This limitation applies to the defendant’s children but is not in- tended to interfere with any ruling by a state court that has jurisdiction over the children. *** 8. You shall participate in a sex offender treatment program as deemed necessary by the probation of- fice. You shall pay for such services as directed by the U.S. Probation Office. … . The judge orally declared that Baker should pay for the drug abuse treatment, the filtering software, and the sex-offender treatment “as directed,” although he did not specify by whom, as it did in the written order which specified the “probation office,” the “probation officer” and the “U.S. Probation Office.” Furthermore, when discussing condition 1 at the sentencing hearing, the judge did not say anything about a ban on “mood altering substance[s]” even though the phrase appears in the written order. No. 13-1641 9 DISCUSSION Baker’s appeal is two-fold. He first challenges the super- vised release term, contending that the life term must be va- cated because it was based on an improper guidelines range, and in any event, the district judge did not adequately ex- plain why it was necessary. His second challenge is to four of the special conditions the judge imposed. He contends the district judge abused his discretion in imposing the four challenged conditions, as well as erred in having terms in the written order that differ from the terms announced at sentencing. I. Supervised Release Term A procedural error during sentencing may form the basis for reversal. “To avoid procedural error, sentencing judges must correctly calculate the guidelines range, evaluate the factors in
18 U.S.C. § 3553(a), and rely on properly support- ed facts.” United States v. Chapman,
694 F.3d 908, 913 (7th Cir. 2012). We review de novo whether a guidelines range was properly calculated. United States v. Sandoval,
747 F.3d 464, 467 (7th Cir. 2014). We also review de novo whether a judge adequately explained his chosen sentence so as to permit appellate review. United States v. Poulin,
745 F.3d 796, 800 (7th Cir. 2014). Both sides acknowledge that the guidelines range in the PSR, which the district judge adopted, was incorrect. As ex- plained in United States v. Goodwin,
717 F.3d 511, 520 (7th Cir. 2013), a failure to register is not a “sex offense” for purposes of U.S.S.G. § 5D1.2(b)(2), so the “range” for Baker’s super- vised release term should have been the statutory term of 5 10 No. 13-1641 years—no more, no less. It should not have been “5 years to life”; that was a procedural error. See Goodwin, 717 F.3d at 520. In some cases, such an error may be harmless when the sentencing judge otherwise provides an explanation that would adequately support the chosen supervised release term, correct guidelines range or not. See United States v. Gul- ley,
722 F.3d 901, 910 (7th Cir. 2013) (“The issue before us is … whether we are convinced the judge would have imposed the same sentence but for the procedural error.”). However, when a judge imposes an above-guidelines range sentence but does not precisely explain why the departure was rea- sonable and necessary in light of the
18 U.S.C. §3553(a) fac- tors, we cannot presume the error was harmless. See United States v. Tovar-Pina,
713 F.3d 1143, 1148 (7th Cir. 2013). The sentencing judge here did not elaborate on why he thought an above-guidelines supervised release term was necessary. He simply stated, “Following your release from custody, you shall serve a lifetime term of supervised release.” This explanation is insufficient to support the life term. See Poulin, 745 F.3d at 802 (explaining that the supervised release term should be vacated because the judge “did not provide any reasons for why he felt a life term … was appropriate”). The explanation is also insufficient for us to be certain the proce- dural error here was harmless. We therefore vacate Baker’s supervised release term and remand for resentencing using the correct guidelines term of 5 years. On remand, the judge will also have the opportunity to more fully explain his cho- sen supervised release term, which of course can be more or less than 5 years with appropriate explanation. No. 13-1641 11 II. Special Conditions of Release Baker challenges special condition 1—the ban on any al- cohol and mood altering substances; condition 3—the com- puter and internet monitoring requirement; condition 4—the prohibition on unsupervised contact with children, includ- ing his own; and condition 8—the sex-offender treatment program requirement. He also challenges the payment pro- vision in conditions 1, 3, and 8. When a sentencing judge modifies the original conditions of supervised release and in turn imposes new discretionary conditions on a defendant, the special conditions “must (1) be reasonably related to the factors identified in § 3553(a), including the nature and circumstances of the offense and the history and characteristics of the defendant; (2) involve no greater deprivation of liberty than is reasonably neces- sary for the purposes set forth in § 3553(a); and (3) [be] con- sistent with the policy statements issued by the Sentencing Commission.” United States v. Evans,
727 F.3d 730, 733 (7th Cir. 2013) (internal quotation marks omitted) (alteration in Evans). The judge has broad discretion when imposing spe- cial conditions, so we only review the judge’s decision for an abuse of discretion when the defendant objects to a given condition. United States v. Neal,
662 F.3d 936, 938 (7th Cir. 2011). If a defendant fails to object in the district court, how- ever, we review the challenge on appeal solely for plain er- ror. United States v. Wolfe,
701 F.3d 1206, 1211 (7th Cir. 2012). A. Ban on Any Alcohol & Mood Altering Substances Baker first points out that the oral pronouncement of special condition 1 did not include the phrase “or mood al- 12 No. 13-1641 tering substance.” The government admits in its response that “mood altering substance” seemingly refers to some- thing that is not “alcohol” or a “controlled substance,” which were the only provisions of condition 1 discussed at the sen- tencing hearing. This would also include various innocuous foods, vitamins, and beverages, all of which may be “mood altering.” Accordingly, the phrase is inconsistent with the terms of the condition that the judge orally pronounced at the sentencing, and in such a situation, the sentence pro- nounced from the bench controls. See United States v. Albu- ray,
415 F.3d 782, 788 (7th Cir. 2005) (“The rule in such situa- tions is clear: ‘If an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls.’” (quoting United States v. Bonanno,
146 F.3d 502, 511 (7th Cir. 1998)). The extraneous language in the written order (i.e., “or mood altering substance”) must be removed from special condition 1. The crux of Baker’s argument regarding special condition 1, however, is the ban on any alcohol. Indeed, Baker acknowledges that a ban on excessive use of alcohol would be appropriate. He simply does not believe that the record sup- ports a conclusion that he is addicted to alcohol or complete- ly dependent upon its use, such that an absolute prohibition is appropriate. See United States v. Simons,
614 F.3d 475, 480– 81 (8th Cir. 2010) (explaining that the court has vacated a special condition involving a complete ban on alcohol “where the defendant’s history or crime of conviction did not support [it]”). The government agrees with that assess- ment, conceding that Baker has abused alcohol in the past but that there is no evidence that Baker’s alcohol use has contributed to his repeated criminal conduct or that Baker is dependent on alcohol. In light of that concession, we need No. 13-1641 13 not provide a full analysis explaining why a complete ban is inappropriate here. Cf. United States v. Schave,
186 F.3d 839, 842–43 (7th Cir. 1999) (holding that the district court did not abuse its discretion in imposing a special condition that banned all alcohol use). We do note though that some limita- tion on Baker’s use of alcohol is proper because Baker has been cited for illegal transportation of alcohol on two occa- sions, Baker told the presentence investigator that he con- sumed a six-pack of beer or more twice per week, and Baker’s breath tested positive for alcohol on two days in Au- gust 2011 while he was participating in a substance-abuse treatment program while on pre-trial release. These instanc- es demonstrate that Baker has abused alcohol in the past, so a condition barring him from consuming “certain” amounts of alcohol in the future involves no greater deprivation of liberty than is reasonably necessary. The question remains as to what amount of alcohol Baker should abstain from consuming. Both parties previously agreed that a condition simply prohibiting “excessive” use of alcohol, rather than “any” use, would be sufficient. That was before we decided United States v. Siegel, ___ F.3d ___,
2014 WL 2210762(7th Cir. May 29, 2014). In Siegel, we vacat- ed conditions of supervised release requiring the defendant to refrain from “excessive use of alcohol” and from purchas- ing any “mood altering substance (excluding coffee, tea, and soda)” because they were unduly vague.
Id. at *9. Our con- clusion requiring “mood altering substance” to be deleted from condition 1 removes the question of the phrase’s legit- imacy from our consideration here. But as to the issue of whether the prohibition of “excessive” use of alcohol, with- out more, is appropriate, we do not believe so—even if the parties agreed to it. As we noted in Siegel, there are different 14 No. 13-1641 definitions of what constitutes excessive use of alcohol. See
id. at 10. Whether excessive constitutes the violation of any local, state, or federal law as a result of alcohol use; encom- passes any use that “adversely affects” one’s employment, relationships, or ability to comply with the conditions of su- pervision; or involves something specific to a particular in- dividual in a given day (e.g., a male defendant consuming more than four drinks in a sitting), that is not for us to de- cide at this point. Nevertheless, a condition prohibiting a de- fendant from “excessive” use of alcohol, without any further guidance or direction, will not pass muster. On remand, the judge should specify what constitutes excessive use of alco- hol as to Baker. Finally, although not addressed by either party, we high- light the fact that condition 1 requires Baker to undergo “not more than six tests per month to determine whether [he has] used controlled substances and/or alcohol.” As was the case with defendant Norfleet in Siegel, Baker is allowed to con- sume alcohol. So, the exact purpose of these tests, at least as to Baker’s use of alcohol, is unknown. See
id. at *10(“Pre- sumably the purpose of the tests is to see how much [the de- fendant has] consumed, but the statement of conditions of supervised release doesn’t say that.”). Whatever the answer is, we believe this involves questions best left to the sentenc- ing judge and the Probation Office—e.g., whether a test for alcohol is necessary to determine whether Baker has con- sumed a prohibited amount of alcohol, regardless of how the amount is defined; or how frequently any such test should occur. We vacate condition 1 and remand for further considera- tion of the issues discussed, noting that a restriction on No. 13-1641 15 Baker’s use of alcohol is proper if reasonably tailored and defined. B. Computer & Internet Monitoring Special condition 3 requires Baker to “participate with the U.S. Probation Office’s Computer and Internet Monitor- ing Program” and “install filtering software on any comput- er [he] posseses or use[s] which will monitor/block access to adult rape[-]related sites and child pornography.” The gov- ernment concedes that the filtering software provision should be vacated. Baker nevertheless challenges the entire- ty of condition 3 on the ground that there is not a sufficient nexus between Baker’s use of a computer and corresponding internet surfing, and the commission of a crime. Indeed, Baker was only convicted of a single count of failing to regis- ter as a sex offender, in violation of
18 U.S.C. § 2250(a). This is a conviction that in no way requires, or is facilitated through, the use of a computer. The government disagrees, focusing on the fact that Baker used a dating website to es- tablish an online—and later, in-person—relationship with a woman living in another state. It contends that Baker’s move from Illinois was what precipitated Baker’s failure to register conviction and that this would not have occurred but for Baker’s use of the computer. It further contends that Baker’s use of an alias on the dating website demonstrates Baker had an ulterior motive when accessing the internet. With that backdrop, the government believes the Probation Office should be allowed to monitor Baker’s computer usage. The government’s argument is weak, as even the sentenc- ing judge noted that the evidence supporting that condition was “barely enough.” Baker has to register as a sex offender wherever he goes. To agree with the government’s conten- 16 No. 13-1641 tion, we would have to assume for a moment that Baker could not have established a relationship with the woman through more traditional means. Only then would it be pos- sible to say Baker’s use of the internet was what led to his move, assuming the move was essentially the cause of the violation. Here, it was Baker’s intent to live with the out-of- state woman he was communicating with that ultimately led to the move. This could have occurred through any number of ways that did not involve a computer. Moreover, whatever the reason for Baker’s move from Il- linois to Michigan, the move would not necessarily have led to a conviction for failing to register. It wasn’t simply the move that caused Baker to be in violation of the law. Rather, it was Baker’s conscious, intentional decision to flout his le- gal obligation to report for registration and update his ad- dress. If Baker had found employment through a website such as Linkedin or CareerBuilder, moved to Michigan or any other state, and failed to register there, Baker could have been convicted of the exact same offense at issue here. In that situation, it would be illogical to link Baker’s use of the computer to find a job with a subsequent conviction for fail- ing to register. The same is true here. Nothing about Baker’s use of his computer or the internet was illegal. And the gov- ernment has not tied Baker’s quest on the internet to find a dating partner to Baker’s prior affinity towards inappropri- ate sexual conduct or to any attempt to evade his registration obligations. The government even concedes in its brief that Baker accessed the website for a lawful purpose. Furthermore, one may not infer any improper motive from the simple fact Baker utilized a dating website. Their use is neither uncommon nor untoward. Baker may have No. 13-1641 17 used a pseudonym or alias on the website (“Rob Baker” in- stead of “Roy Baker”), which the government says lends support to a possible improper purpose. But a person might initially use a pseudonym on a dating website for any num- ber of reasons, including initial privacy or the desire to hide one’s identity from acquaintances who also might be on the website. That is arguably no different than applying for a job anonymously or even through a recruiter. Baker told the woman that he was a sex offender (granted, he may have minimized the offense), and as previously stated, there is no evidence linking Baker’s use of the alias on the website with an intent to avoid his registration requirements. Thus, the fact Baker used a pseudonym on the website cannot be the sole rationale for the computer monitoring requirement. Without more, the imposition of condition 3 was an abuse of discretion. C. Unsupervised Contact with Children Special condition 4 bars Baker from having unsupervised contact with children, including his own, unless a state court judge enters an order allowing otherwise. It essentially en- compasses two groups: Baker’s minor children and minors in general. The issue of no-contact conditions has been dis- cussed at length by this Court, in addition to other circuits across the country. See, e.g., Goodwin, 717 F.3d at 523–24 (va- cating a no-contact condition because the district court did not provide an explanation as to why it was reasonably re- lated to the defendant’s offense and background); United States v. Zobel,
696 F.3d 558, 564–65, 574–75 (6th Cir. 2012) (upholding a no-contact condition where the defendant knowingly coerced and enticed minors through online chat- ting and text messages to engage in sexual activity); Simons, 18 No. 13-1641
614 F.3d at481–82 (upholding a condition that allowed the defendant to have contact with minors, including his own children, if he obtained his probation officer’s consent); Unit- ed States v. Rodriguez,
558 F.3d 408, 417–18 (5th Cir. 2009) (af- firming a special condition involving a complete ban on un- supervised contact with minors, including the defendant’s two minor children). The government concedes that the ban on supervised contact with Baker’s own children should be vacated, noting that there is no evidence that Baker has abused or attempted to abuse his own children, or that he is a danger to his own family. Cf. United States v. Lonjose,
663 F.3d 1292, 1302–03 (10th Cir. 2011) (recognizing “a funda- mental right of familial association” and vacating a condi- tion prohibiting the defendant from having contact with his minor son and other minor relatives unless he received ad- vance permission from his probation officer). We therefore vacate special condition 4. On remand, the judge should also consider the scope of the condition and Baker’s argument that an exception should be included “for commercial busi- ness and in cases of incidental or unintentional conduct” with minors in general. D. Sex-Offender Treatment Program Baker contends that condition 8, which requires him to complete a sex-offender treatment program, is not reasona- bly related to the nature and circumstances of his offense, as required by
18 U.S.C. § 3583(d)(1). In support, he again di- rects us to Goodwin. In Goodwin, this Court sua sponte vacated a condition requiring the defendant to undergo sex offender treatment because the defendant’s offense (failure to register as a sex offender) did not have “any connection” to “the purposes that sex offender treatment and mental health No. 13-1641 19 counseling typically serve.” 717 F.3d at 525–26. The obvious difference between Goodwin and this case, however, is the restaurant incident with the two minor girls. Even Baker acknowledges this is a “plausible distinction,” which is not to be taken lightly. We are confronted with the question of whether the pur- poses of sex offender treatment have “any connection” to Baker’s failure to register offense. Individuals who have been convicted of sex offenses are required to register as sex offenders for a number of reasons not limited to protecting the safety of others. See
42 U.S.C. § 16901(explaining that the purpose of SORNA is “to protect the public from sex offend- ers and offenders against children, and [to] respon[d] to the vicious attacks by violent predators”). Sex offender treat- ment may not be warranted in many cases where the base offense is a failure to register, but recent conduct demon- strating a propensity to commit sex offenses would seem to always provide a justification for the condition. See United States v. Evans,
727 F.3d 730, 733–34 (7th Cir. 2013) (“Even if there is no substantive connection between the crime of pun- ishment and the defendant’s sexual misconduct, the sexual misconduct may be so recent or prominent in the defendant’s behavior that a sentencing court aiming to protect the public and rehabilitate the defendant would be entitled to address it.”) (emphasis added); see also United States v. Morales-Cruz,
712 F.3d 71, 74 (1st Cir. 2013) (“[S]ex offender treatment may be imposed in a case in which the underlying crime in not a sex offense.”); United States v. Hahn,
551 F.3d 977, 984 (10th Cir. 2008) (“[N]othing in [
18 U.S.C. § 3583(d)] limits the spe- cial condition of sex-offender treatment to defendants under prosecution for sex crimes.”) (alteration in Hahn). The inci- dent in late 2007 may have occurred roughly four years be- 20 No. 13-1641 fore the failure to register conduct and five years before Baker was sentenced, but to say that it is “outdated,” as Baker contends, is not accurate. Baker has spent most of his life incarcerated, and he engaged in the 2007 conduct not long after he was released from prison. This fact significantly increases the temporal connection between the time of the conduct and the time of Baker’s base offense here. Baker attempts to further distinguish Evans on the ground that his 2007 conduct did not result in an arrest. That is not dispositive. The facts regarding Baker’s conduct are disturbing. Baker reached out to minor girls, engaged in ex- plicit sexual conversations with them, took them to an area of isolation, and solicited sexual activity with them at a later date. This is a prominent example of the defendant’s behav- ioral history. See Evans, 727 F.3d at 734. That no arrest or prosecution followed Baker’s actions does not indicate the events did not occur as the girls testified at the sentencing hearing. The judge implicitly found their testimony to be credible by relying on it when making his sentencing deter- minations. The judge also was not merely relying on a bare- bones, unsubstantiated police report. Accordingly, that Baker was not arrested or prosecuted for his 2007 conduct did not prohibit the sentencing judge from considering the testimony as evidence of Baker’s history and characteristics, which are important considerations when imposing a special condition. See
18 U.S.C. § 3661(“No limitation shall be placed on the information concerning the background, char- acter, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”); United States v. Jones,
635 F.3d 909, 917 (7th Cir. 2011) (“In arriving at an appropriate sentence, ‘a judge may appropriately con- No. 13-1641 21 duct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.’” (quoting United States v. Tucker,
404 U.S. 443, 446 (1972))); see also Neal,
662 F.3d at938–939 (“The district judge properly considered [the defendant’s] history and character, noting that he smoked marijuana on a daily basis in the past, had used illegal substances in 1999 and 2000 before he was arrested, and had used cocaine prior to his incarceration.”). Nor does it take this case beyond the purview of our reasoning in Evans. We find that the tem- poral connection between the 2007 incident and the failure to register offense (which the sentencing judge thought was “recent enough”), coupled with the gravity of Baker’s con- duct, created a sufficient nexus between Baker’s conduct and the § 3553(a) factors for the sentencing judge to impose the sex-offender treatment condition. See Evans, 727 F.3d at 735. Baker’s alternative argument is that the sex-offender treatment condition involves a greater deprivation of liberty than necessary because the judge did not limit how long Baker is required to undergo treatment. This argument is grounded in the fact that the judge imposed a life term of supervised release; so conceivably, Baker could be required to attend sex-offender treatment for the rest of his life. In- deed, as we have explained, certain conditions of release “may require strong justification when extended for a life- time.” United States v. Quinn,
698 F.3d 651, 652–53 (7th Cir. 2012) (“The judge also should consider the possibility of set- ting sunset dates for some of the more onerous terms, so [the defendant] can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should [the defendant] relapse.”). But the basic premise of Baker’s 22 No. 13-1641 argument has been addressed; we have already held that Baker’s term of supervised release must be vacated because it was based on an improper guidelines range. On remand, the sentencing judge will be able to address the length of Baker’s supervised release, which in turn affects the length of the sex-offender treatment requirement. Baker’s argument on this point is moot. E. Payment Provision of Conditions 1, 3 & 8 Conditions 1, 3, and 8 of the written judgment require Baker to pay for the costs or services of the particular condi- tion “as directed” by “the probation office,” “the probation officer,” and “the U.S. Probation Office,” respectively. 2 The conditions do not specify what will happen if Baker bears the burden of paying and is unable to do so. Siegel,
2014 WL 2210762, at *8 (“Nothing is said about what happens if he can’t pay the entire cost. Will his supervised release be re- voked because he won’t be complying with the conditions in question in their entirety? Or will the government pay for them? It must mean the latter … .”). This is problematic be- cause conditions of supervised release must make clear what conduct is prohibited, see United States v. Preacely,
702 F.3d 2Any argument that the payment conditions should be vacated because the written judgment, explicitly stating the entity or official who can di- rect Baker to pay, is inconsistent with the oral pronouncement, which only says “as directed” without specifying by whom, is unavailing. The specifications in the written judgment clarify the oral pronouncement; they are not inconsistent with an unambiguous provision. See United States v. Bonanno,
146 F.3d 502, 511–12 (7th Cir. 1998); see also United States v. Zepeda,
329 Fed. Appx. 647, 649 (7th Cir. 2009) (stating that “an oral pronouncement of sentence, if unambiguous, controls over a con- flicting written one”). No. 13-1641 23 373, 376 (7th Cir. 2012), as well as the scope of the provi- sions. See Siegel,
2014 WL 2210762, at *11 (vacating a special condition because the sentencing did not make clear that the behavior therapy program it required the defendant to com- plete would not necessarily have to continue for the entire supervised release term); see also United States v. Monteiro,
270 F.3d 465, 473 (7th Cir. 2001) (vacating a “vague and overbroad” special condition so the sentencing judge could “craft more precisely” its terms). A defendant may not be recommitted to prison “for mere inability to pay,” Siegel,
2014 WL 2210762, at *11, and the conditions should account for the possibility of Baker failing to satisfy any payment re- quirement imposed. This deficiency is an error that the judge must address on remand. 3 It is unnecessary for us to address Baker’s alternative arguments. CONCLUSION We VACATE Baker’s supervised release term, special conditions 1 and 4, and the payment provision in conditions 1, 3, and 8; and REMAND for resentencing consistent with this opinion. We AFFIRM Baker’s prison term and all of the other terms in the special conditions imposed. 3 The government contends our review of the condition is confined to plain error because Baker did not specifically object to the part of the conditions requiring him to pay. See United States v. Fluker,
698 F.3d 988, 1003 (7th Cir. 2012). The deficiency we have identified is a reversible er- ror, regardless of which standard of review is applied. See Goodwin, 717 F.3d at 522–23 (declining to resolve the issue of whether plain-error re- view or review for abuse of discretion applied because the special condi- tions were required to be vacated under either standard).
Document Info
Docket Number: 13-1641
Citation Numbers: 755 F.3d 515, 2014 U.S. App. LEXIS 11320, 2014 WL 2736016
Judges: Rovner, Sykes, Durkin
Filed Date: 6/17/2014
Precedential Status: Precedential
Modified Date: 11/5/2024