United States v. Germaine Bryant , 754 F.3d 443 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3845
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERMAINE R. BRYANT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4-13-CR-40042-JPG-1 — J. Phil Gilbert, Judge.
____________________
SUBMITTED MAY 21, 2014 — DECIDED JUNE 12, 2014
____________________
Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to a
federal drug offense and was sentenced to 144 months in
prison (a below-guidelines sentence—his guidelines range
was 188 to 235 months). His lawyer has filed an Anders brief
to which the defendant has not responded, though invited to
do so. The brief persuasively demonstrates the absence of
any nonfrivolous ground for challenging the 144-month sen-
2 No. 13-3845
tence. (There is no indication that the defendant wants to
withdraw his guilty plea.)
The brief states that the defendant “may wish to raise the
issue of ineffective assistance of counsel” at sentencing, but
immediately adds that since the author of the brief was also
the defendant’s lawyer at sentencing “the issue of ineffec-
tiveness is not appropriate for direct appeal.” True. A claim
of ineffective assistance need not, and usually as a matter of
prudence should not, be raised in a direct appeal, where ev-
idence bearing on the claim cannot be presented and the
claim is therefore likely to fail even if meritorious. Massaro v.
United States, 538 U.S. 500, 504–05 (2003); United States v.
Wallace, 2014 WL 1978408, at *4 (7th Cir. May 16, 2014); Unit-
ed States v. Fareri, 712 F.3d 593, 595 (D.C. Cir. 2013).
We are surprised that apart from the sentence itself—
both the written version, which lists the conditions of super-
vised release imposed on the defendant, and the judge’s oral
sentencing statement, which mentions a few of them—the
only reference in the trial or appellate record to supervised
release is an occasionally repeated statement that the term of
supervised release is three years. The presentence report
contains no recommendations concerning the conditions.
Although the probation officer who prepares the report also
prepares a separate document entitled “Sentencing Recom-
mendation,” which includes recommended conditions of
supervised release, the district court is authorized to conceal
the recommendations from the defendant and his lawyer,
Fed. R. Crim. P. 32(e)(3). The U.S. District Court for the
Southern District of Illinois has directed its judges to do so,
S.D. Ill. Local Rule Cr32.1(b), and it was done in this case.
(The reason for such secrecy, as noted in United States v. Pe-
No. 13-3845 3
terson, 711 F.3d 770, 776 and n. 2 (7th Cir. 2013), is “to allow
probation officers the opportunity to provide a candid as-
sessment of the defendant to the court and to protect the ef-
fectiveness of the probation officer in the supervisory con-
text,” though in some districts—the Northern District of Illi-
nois, for example—the probation office is structured to as-
sign a different probation officer to supervise the defendant
when he’s released from the officer who prepared the sen-
tencing recommendation.) Factual information in the proba-
tion officer’s recommendation must be disclosed to the de-
fendant, however. See Fed. R. Crim. P. 32(i)(1)(B); also 1974
Advisory Committee Notes to Fed. R. Crim. P. 32; United
States v. Godat, 688 F.3d 399, 401 (8th Cir. 2012); United States
v. Baldrich, 471 F.3d 1110, 1113–15 (9th Cir. 2006).
But not knowing the recommendation itself may make it
difficult for the defendant to mount an effective challenge to
it. Although some conditions of supervised release are man-
datory, see 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a), and oth-
ers, though not mandatory, are “standard,” §§ 5D1.3(b)–(c),
still others—which like the standard conditions are found in
the sentencing guidelines rather than in the Sentencing Re-
form Act, and are called “special conditions” of supervised
release, §§ 5D1.3(d)–(e), recommended for particular offens-
es—are not exhaustive. 18 U.S.C. § 3583(d); U.S.S.G.
§ 5D1.3(b); United States v. Angle, 598 F.3d 352, 360–61 (7th
Cir. 2010); United States v. Daddato, 996 F.2d 903, 904 (7th Cir.
1993); United States v. Sicher, 239 F.3d 289, 292–93 (3d Cir.
2000). Sentencing judges can impose special conditions of
their own devising, provided the conditions comply with
overall federal sentencing policy as stated in 18 U.S.C.
§ 3553(a), especially subsection (a)(2).
4 No. 13-3845
As emphasized in United States v. Siegel, 2014 WL
2210762, at *1–2, 5–7 (7th Cir. May 29, 2014), a district judge
is required to give a reason, consistent with the sentencing
factors in section 3553(a), for every discretionary part of the
sentence that the judge is imposing, including any non-
mandatory conditions of supervised release. The judge in
this case gave no reasons for imposing the 13 (of the 15 pos-
sible) standard conditions that he imposed on the defendant.
He did give reasons for imposing 4 of the 7 special condi-
tions. The written sentence lists 8 “special conditions,” but
one was actually a mandatory condition—that the defendant
was to “cooperate in the collection of DNA as directed by
the probation officer.” 18 U.S.C. § 3583(d); U.S.S.G.
§ 5D1.3(a)(8). (The judge had, however, correctly called it a
mandatory condition at the sentencing hearing.) Since it was
mandatory, no reason needed to be given for its imposition.
Another of the 7, as we’ll see, was not a condition of super-
vised release at all.
The special conditions that the judge gave reasons for
(we italicize the reasons for clarity) were first, that “due to
your substance abuse history, you shall participate as directed
and approved by the probation officer in treatment for nar-
cotic addiction, drug dependence, or alcohol dependence,
which includes urinalysis and/or other drug detection
measures, and which may require residence and/or partici-
pation in a residential treatment facility or residential
reentry center”; second, that “as you are not educationally or
vocationally prepared to enter the workforce, you shall partici-
pate in a program deemed appropriate to improve job read-
iness skills, which may include participation in a GED pro-
gram or workforce development program as directed by the
No. 13-3845 5
probation officer”; third, that “based on prior compliance issues
during supervision, the defendant shall submit her [sic] per-
son, residence, real property, place of business, computer,
electronic communication and data storage device or media,
vehicle, and any other property under her [sic] control to a
search, conducted by the United States Probation Officers …
without a warrant”; and fourth, that “having assessed your
ability to pay, payment of the total criminal monetary penal-
ties shall be paid in equal monthly installments of $10 or 10
percent of your net monthly income, whichever is greater, to
commence 30 days after the judgment’s been entered in this
case.”
The fourth condition, however, was not a condition of
supervised release, because it was to take effect 30 days after
judgment, long before the defendant is scheduled to be re-
leased from prison. For prisoners enrolled in the Inmate Fi-
nancial Responsibility Program, the program determines
how prison wages are applied to prisoner debts, and United
States v. Sawyer, 521 F.3d 792, 795–96 (7th Cir. 2008), holds
that judges can’t order prison wages to be dedicated to resti-
tution. If that is correct (Sawyer acknowledges that most of
the other courts of appeals disagree; see United States v. Cor-
ley, 500 F.3d 210, 225 (3d Cir. 2007), reversed on other
grounds, 556 U.S. 303 (2009); United States v. Gunning, 401
F.3d 1145, 1150 (9th Cir. 2005); United States v. Overholt, 307
F.3d 1231, 1255–56 (10th Cir. 2002); United States v. Davis, 306
F.3d 398, 425–26 (6th Cir. 2002); United States v. McGlothlin,
249 F.3d 783, 784–85 (8th Cir. 2001); United States v. Kinlock,
174 F.3d 297, 300 (2d Cir. 1999); cf. 18 U.S.C. § 3572(d)(1); 18
U.S.C. § 3013(c); AO Form 245B, “Judgment in a Criminal
Case”; Federal Bureau of Prisons, “The Federal Bureau of
Prisons’ Inmate Financial Responsibility Program” (Report
6 No. 13-3845
No. I-2000-023, Sept. 2000), www.justice.gov/oig/reports/
BOP/e0023/index.htm.), why shouldn’t it be equally true of
fines and special assessments? Nor is it likely that a modest
fine and special assessment (together only $200 in this case)
won’t be paid before release. All federal prisoners who are
medically fit are required to work, and the Bureau of Prisons
garnishes their wages to pay off court-imposed fines and
restitution. Federal Bureau of Prisons, “The Federal Bureau
of Prisons’ Inmate Financial Responsibility Program,” Intro-
duction, supra.
The three other special conditions of supervised release
imposed on the defendant, which the judge did not explain,
puzzle us as well. They are, first, that “the defendant shall
provide the probation officer and the Financial Litigation
Unit of the United States Attorney’s Office with access to
any requested financial information. The defendant is ad-
vised that the probation office may share financial Infor-
mation with the Financial Litigation Unit.” Second, “the de-
fendant shall apply all monies received from income tax re-
funds, lottery winnings, judgments, and/or any other antici-
pated or unexpected financial gains to the outstanding court-
ordered financial obligation. The defendant shall immediate-
ly notify the probation officer of the receipt of any indicated
monies.” And third, “the defendant shall notify the United
States Attorney for this District within 30 days of any change
of name, residence, or mailing address until all fines, restitu-
tion, costs and special assessment imposed by this judgment
are fully paid.” The puzzle is that the financial obligations
sum, as we said earlier, to a mere $200, an amount bound to
be paid off before this defendant is released. His prison sen-
tence is 12 years and he is to pay $10 a month “from [his]
prison earnings” toward his fine, payment to begin 30 days
No. 13-3845 7
after entry of judgment. Even if he pays only $5 a month, he
will have paid the entire fine by the end of his first three and
a half years in prison.
There is a further question about the third condition—the
notification of change of name, residence, etc. The condition
is specified in 18 U.S.C. § 3612(b)(1)(F), which however ap-
plies only to “a judgment or order imposing … a fine or res-
titution order of more than $100” (emphasis added). 18 U.S.C.
§ 3612(b)(1). The judge in this case imposed a fine of exactly
$100 (and no restitution). So the condition is inapplicable as
a mandatory statutory condition, though presumably the
judge could impose it as a special condition—yet that would
be pointless, since as we said the fine and assessment will be
paid long before the defendant is released from prison.
The judge explained neither how the standard and spe-
cial conditions that he was imposing comported with the
statutory sentencing factors nor the basis for imposing con-
ditions that are to take effect before the defendant leaves
prison.
There is also no indication that any of the conditions
were shown to the defendant’s lawyer before the judge im-
posed them, or that the lawyer discussed supervised release
with her client. Defendant and lawyer are charged with
knowledge of the sentencing guidelines, which list the
standard conditions along with a number of special ones.
But it is difficult to prepare to respond to every possible
condition of supervised release that the judge may impose
without any advance notice, given that the judge is empow-
ered to impose special conditions that are not listed in the
guidelines, or anywhere else for that matter. We held in
United States v. Scott, 316 F.3d 733, 735–36 (7th Cir. 2003), that
8 No. 13-3845
notice to the defendant is required before the imposition of
special conditions of supervised release that are “out of the
ordinary, and thus unexpected.” There are similar decisions
in other circuits. See United States v. Brown, 402 F.3d 133, 139
(2d Cir. 2005); United States v. Wise, 391 F.3d 1027, 1033 (9th
Cir. 2004); United States v. Barajas, 331 F.3d 1141, 1144–45
(10th Cir. 2003). No notice was given in this case. It’s true
that these decisions precede Irizarry v. United States, 553 U.S.
708 (2008), which holds that no notice is required if the sen-
tencing judge is thinking merely of imposing a sentence that
is a “variance” from the guidelines sentence, which is to say
a decision based on the judge’s application of the sentencing
factors in 18 U.S.C. § 3553(a). The defendant’s lawyer should
be able to determine the direction in which the sentencing
factors are likely to move the sentence. See 553 U.S. at 715–
16. But there is no similar source of guidance for the imposi-
tion of special conditions—no basis for assuming that the
defendant’s lawyer will be able to predict what newfangled
special condition the judge may come up with. The danger
we pointed to in the Scott decision—of conditions of super-
vised release that are “out of the ordinary, and thus unex-
pected”—was not involved in Irizarry.
There are additional problems with the sentencing of the
defendant in this case. One is that while at sentencing the
judge mentioned six special conditions that he was impos-
ing, the written sentence as we know lists eight. And in two
of the conditions the defendant, though a man, is referred to
as “she” or “her”—not a good sign. And finally, when the
written sentence differs from the oral, the oral takes prece-
dence, Fed. R. Crim. P. 35(c); United States v. Cephus, 684 F.3d
703, 709–10 (7th Cir. 2012); United States v. McHugh, 528 F.3d
538, 539 (7th Cir. 2008); United States v. Weathers, 631 F.3d
No. 13-3845 9
560, 561–62 (D.C. Cir. 2011)—and were that rule applied in
this case it would eliminate from the defendant’s sentence
the two special conditions of supervised release that the
judge did not mention orally.
All this said, because the attorney did not raise these is-
sues and the defendant did not respond to the Anders brief
we have no basis for reversing the sentence, as we are given
no indication that he wishes to challenge any of the condi-
tions of supervised release. United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014). He may be indifferent to them, since—
apart from those that, on unexplained authority, are to take
effect before his release—they won’t take effect until his re-
lease date, which according to the Bureau of Prisons will be
no earlier than June 4, 2023. (The selection of this date was
based on the assumption that he will earn the maximum
good-time credits authorized by 18 U.S.C. § 3624(b)(1).) He
may not weight distant future consequences heavily.
The appeal is therefore dismissed and the lawyer’s mo-
tion to withdraw from her representation of the defendant is
granted.