United States v. Brennan Thomas ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2612
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Brennan Thomas, also known as *
“Snaps,” *
*
Appellant. *
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Submitted: October 19, 1999
Filed: December 30, 1999
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Before WOLLMAN, Chief Judge, HEANEY and LOKEN, Circuit Judges.
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WOLLMAN, Chief Judge.
Having entered a plea of guilty to one count of intentionally aiding and abetting
the distribution of approximately seventy grams of cocaine base (crack), Brennan W.
Thomas appeals from one of the conditions of the supervised release portion of his
sentence imposed by the district court.1 We affirm.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
I.
The presentence report (PSR) indicates that Thomas has a substantial criminal
record and a history of criminal street gang involvement. He had been a member of a
criminal gang known as the Gangster Disciples and later either started or joined another
gang, known as XXVI.
The district court imposed a prison sentence of 121 months and a term of
supervised release of five years. Thomas appeals from the condition of his supervised
release that requires that:
The defendant shall not associate with any member, prospect, or associate
member of the XXVI gang, the Gangster Disciples gang, or any other
gang. If the defendant is found to be in the company of such individuals
while wearing the clothing, colors, or insignia of the XXVI gang, the
Gangster Disciples gang or any other gang, the Court will presume that
this association was for the purpose of participating in gang activities.
At the sentencing hearing, Thomas objected to this provision as being overly broad.
He expressed concern that he did not know precisely what conduct would cause his
release to be revoked, a particular problem for him because of the composition of his
home neighborhood, which evidently includes a significant number of gang members
and thus increases the likelihood of inadvertent interaction with such persons. The
court replied that the issue would be taken up at a later time, presumably when the
conditions have taken effect upon Thomas’s release from prison. On appeal, Thomas
contends that the condition is vague and fundamentally unfair and thus violates the Due
Process Clause.
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II.
It is a well-established, self-imposed judicial policy that a court will decline to
determine a constitutional question if the issue is “so premature that the court would
have to speculate as to the presence of a real injury.” Meadows of West Memphis v.
City of West Memphis, 800 F.2d 212, 214 (8th Cir. 1986); cf. Missouri ex rel.
Missouri Highway & Transp. Comm’n v. Cuffley, 112 F.3d 1332, 1337 (8th Cir. 1997)
(“When . . . considering free speech issues of fundamental and far-reaching import, it
is particularly inappropriate to attempt to decide a case on an amorphous and ill-defined
factual record.”) (internal quotations omitted). The precise line between ripe actions
and premature actions is not an easy one to draw, see Cuffley, 112 F.3d at 1338, but
we believe that because Thomas has not shown a current, substantial controversy
relating to the challenged provision, his due process vagueness claim is premature.
Thomas will not be subject to the condition for nearly a decade, during which time any
number of events may occur that would make the condition irrelevant. Until such time
as the condition’s enforcement is imminent, the dispute is only abstract. Thus, we
decline to address Thomas’s constitutional challenges to the condition.
We note that Thomas may petition for modification of his supervised release
conditions before his supervised release begins. See 18 U.S.C.§ 3583(e) (Supp. 1999);
United States v. Gray, 175 F.3d 617, 618 (8th Cir. 1999). Thomas also is assured of
both a prompt probable cause hearing and a more extensive revocation hearing if
proceedings are begun to revoke his release, see Fed. R. Crim. P. 32.1; cf. Morrissey
v. Brewer, 408 U.S. 471, 482-83 (1972) (parole revocation implicates due process),
and the opportunity for appellate review at that time. See, e.g., United States v.
Reynolds, 49 F.3d 423, 424 (8th Cir. 1995); United States v. Zentgraf, 20 F.3d 906,
908-09 (8th Cir. 1994).
The sentence is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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