United States v. Solomon Smith, Jr. , 906 F.3d 645 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3575
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SOLOMON SMITH, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 162-1 — Charles P. Kocoras, Judge.
____________________
ARGUED MAY 30, 2018 — DECIDED OCTOBER 16, 2018
____________________
Before WOOD, Chief Judge, and SYKES and HAMILTON, Cir-
cuit Judges.
WOOD, Chief Judge. Solomon Smith pleaded guilty to two
counts of filing fraudulent federal tax returns. His appeal con-
cerns only the supervised release portion of his sentence. He
objects to two discretionary conditions imposed by the judge:
one that forbids “excessive use” of alcohol, and one that
obliges him to submit to visits from his probation officer at
any reasonable time. Those visits may occur at his home,
2 No. 16-3575
workplace, or any reasonable location that the officer desig-
nates. Smith, a teetotaler who stands convicted of tax fraud,
views those conditions as unwarranted by his crime or char-
acter and ill-suited to the purposes of supervised release. He
also asserts that a ban on excessive alcohol use is impermissi-
bly vague.
Although there may be some substance to Smith’s com-
plaints, the procedural history of this case complicates mat-
ters. 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 sup-
port of the condition. As for the alcohol condition, a proce-
dural error by the district court creates a problem, but one that
we can fix on appeal. At Smith’s sentencing hearing, the dis-
trict 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 alco-
hol concentration (BAC) in excess of 0.08%. Perhaps not coin-
cidentally, that is the level used by the State of Illinois for pur-
poses of its driving laws. See 625 ILCS 5/11-501(a)(1). But that
objective benchmark was not mentioned in either the court’s
oral pronouncement of the sentence or its later written judg-
ment. The limitation in the PSR thus fell by the wayside, and
the undefined term “excessive use” that is currently in the
judgment is both vague and, for a non-drinker, unjustified
without some explanation. Nonetheless, we conclude that re-
mand is unnecessary, because we find no other reversible er-
ror in the conditions of supervised release and we can amend
the judgment so that the definition of “excessive use” reflects
No. 16-3575 3
the court’s evident intent to incorporate the BAC of 0.08%. We
affirm the district court’s judgment as corrected.
I
Smith was prosecuted for filing fraudulent tax returns in
violation of 26 U.S.C. §§ 7206(1) and 7206(2); as we noted, he
pleaded guilty to those offenses. His Form 1041 trust tax re-
turns, covering Tax Year 2008 and Tax Year 2009, had claimed
refunds of approximately $380,000 each for payments made
by a non-existent trust. The IRS paid a hefty refund (including
interest) of $386,310.94 in response to the 2008 return, but it
rejected his request for a refund for 2009.
Before Smith’s sentencing hearing, the probation office
prepared a PSR. The report contained proposed conditions of
mandatory supervised release. One of those proposals, la-
beled 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 per-
mit 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 spec-
ified by a probation officer ☒ you shall permit confiscation of
any contraband observed in plain view of the probation of-
ficer.” Smith raised no objections to these proposed condi-
tions (or for that matter any others) in his sentencing memo-
randum. He instead requested a “sentence of probation, sup-
plemented 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
4 No. 16-3575
probation office. The sentencing recommendation included
the same two supervised-release conditions as the PSR. When
the sentencing hearing turned to supervised release, the dis-
trict 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 had no problem with the four proposed mandatory condi-
tions. The district court then enumerated the proposed discre-
tionary conditions and asked, “Is there any reason—this is ad-
dressed to the lawyers and Mr. Smith, any reason—we should
discuss those or whether—is there any objection to the impo-
sition of any of those conditions?” The prosecution responded
that it had “no objection” and thought that each proposed
condition was “relevant.” The court then addressed Smith’s
attorney, David Kadzai.
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 pro-
posed special conditions, which Kadzai agreed were reasona-
ble 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 discretion-
ary conditions found in the PSR and sentencing recommen-
dation:
(7) you shall refrain from ☐ any or ☒ excessive use of
alcohol (defined as ☐ having a blood alcohol concen-
tration greater than 0.08%; or ☐ ) ….
No. 16-3575 5
(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 loca-
tion ☒ other reasonable location specified by a proba-
tion officer ☒ you shall permit confiscation of any con-
traband observed in plain view of the probation officer.
Note that written condition 7 did not check off the parenthe-
tical definition of “excessive use,” unlike the PSR, which did.
Smith’s appeal challenges these two conditions on sub-
stantive grounds. Neither condition, Smith asserts, was tai-
lored 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 with-
out 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) ap-
propriately tailored to the defendant’s offense, personal his-
tory and characteristics; (b) involve no greater deprivation of
liberty than is reasonably necessary to achieve the goals of de-
terrence, 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 18 U.S.C. § 3583(d); United States v. Bloch, 825
F.3d 862, 868–69 (7th Cir. 2016). We have found that re-
strictions on alcohol consumption violate the first two re-
6 No. 16-3575
quirements when the defendant lacks a personal history of al-
cohol abuse and his offense has no apparent connection to in-
toxication. Kappes, 782 F.3d at 849, 852; cf. United States v. Pou-
lin, 809 F.3d 924, 933 (7th Cir. 2016) (permitting an alcohol
condition where the district court had made findings concern-
ing defendant’s alcohol dependency and had “reasonably
concluded that alcohol consumption might lead” to recidi-
vism). Moreover, we repeatedly have held that a condition
banning “excessive use” of alcohol without defining that term
is unlawfully vague. E.g., Kappes, 782 F.3d at 849; United States
v. Thompson, 777 F.3d 368, 376–77 (7th Cir. 2015); United States
v. Siegel, 753 F.3d 705, 715–16 (7th Cir. 2014).
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 pro-
bation officer may impinge on his supervisee’s liberty. United
States v. Henry, 813 F.3d 681, 683 (7th Cir. 2016) (rejecting re-
quirement 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) (permit-
ting “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).
No. 16-3575 7
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 ob-
jection to the visitation condition in his case, and so the judge
had no occasion to hear argument or to reflect on both the le-
gal requirements for visitation conditions or the way they ap-
ply to Smith. This was more than a forfeiture: it was a waiver
of the right to object to that condition. Waiver is the “inten-
tional 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 vis-
itation condition, and Smith’s attorney, with the benefit of
having seen the condition in advance, responded that the con-
dition was “reasonable.” Smith has not argued that either he
or his attorney was confused or that the response did not in-
dicate approval. As a practical matter, it may be that defend-
ants are reluctant to object to conditions out of a fear of elicit-
ing 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 appropri-
ate steps.
III
We now turn to the alcohol restriction. Smith is not ham-
strung by waiver of his objection to this condition because the
version to which his lawyer agreed included the critical defi-
nition of a BAC above 0.08%. But that limitation did not make
8 No. 16-3575
it into Smith’s sentence. Rather than defining “excessive” ei-
ther 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 attor-
ney 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 conditions nor did he have an
opportunity to do so. As a result, Smith did not forfeit, let
alone waive, his right to challenge the written condition as un-
lawfully vague. FED. R. CRIM. P. 51.
Normally, when there is a conflict between an oral sen-
tence 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 con-
ditions 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 condi-
tions 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 pro-
posed conditions before sentencing,” and the subsequent
written judgment cannot conflict with either the written no-
tice 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
No. 16-3575 9
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 guess-
work.
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 dis-
trict court for resentencing only on this point. We have fol-
lowed both approaches. Compare, e.g., Thompson, 777 F.3d at
382 (remanding for resentencing in toto because “reconsider-
ation 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 our-
selves. 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 gen-
eral, 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 re-
lease, lack of clarity, or procedural infirmity. If a condition is
unsuited to the defendant or his offense, it is hard to see how
10 No. 16-3575
it could properly serve as an offset to incarceration. If the dis-
trict 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 recommended conditions from the
PSR, the only sensible conclusion is that the judge meant to
adopt precisely those recommendations. Recommended dis-
cretionary condition 7 indicated that “excessive use” of alco-
hol exists only if BAC goes above 0.08%. As the government
points out, if Smith is indeed a teetotaler, this should not in-
hibit his behavior at all. If the condition proves to be burden-
some, Smith is also entitled to file a motion in the district court
seeking modification of the terms of his release.
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 dis-
trict court.