United States v. Parrish Kappes , 782 F.3d 828 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1223
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PARRISH KAPPES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:12-cr-20080-MPM-DGB-1 — Michael P. McCuskey, Judge.
____________________
No. 14-2135
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. CRISP, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:13-cr-20050-MPM-DGB-1 — Michael P. McCuskey, Judge.
2 Nos. 14-1223, 14-2135 & 14-2482
____________________
No. 14-2482
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY J. JURGENS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:13-cr-40048-SLD-JEH-1 — Sara Darrow, Judge.
____________________
ARGUED NOVEMBER 14, 2014 — DECIDED APRIL 8, 2015
____________________
Before BAUER, FLAUM, and TINDER, Circuit Judges.
TINDER, Circuit Judge. We resolve three appeals in a single
opinion because the appeals raise similar challenges to con-
ditions of supervised release. Although supervised release
has been a feature of the federal criminal justice system for
nearly thirty years, with over a million federal defendants
having been sentenced to supervised-release terms, during
the past several years we have addressed certain aspects of
supervised release for the first time. 1 Some defendants,
1 See, e.g., United States v. Sewell, --- F.3d ----, No. 14-1384, 2015 WL
1087750 (7th Cir. Mar. 13, 2015); United States v. Thompson, 777 F.3d 368Nos. 14-1223, 14-2135 & 14-2482 3
judges, lawyers, and probation officers might characterize
our recent focus on these issues as better late than never,
while others might grumble that we are trying to fix an un-
broken system. In any event, we hope our recent jurispru-
dence results in the imposition of supervised-release condi-
tions that are properly-noticed, supported by adequate find-
ings, and well-tailored to serve the purposes of deterrence,
rehabilitation, and protection of the public.
The first section of this opinion provides an overview of
the system of supervised release, including four general sen-
tencing principles judges should consider. Next, we outline
the history, crimes, and sentencings of the three defendants
at issue. Then, we address the specific supervised-release
challenges raised by each defendant, organized by the four
general sentencing principles. Lastly, we consider Defendant
Crisp’s contention that the sentencing judge failed to consid-
er one of his principal mitigation arguments.
(7th Cir. 2015); United States v. Cary, 775 F.3d 919 (7th Cir. 2015); United
States v. Hinds, 770 F.3d 658 (7th Cir. 2014); United States v. Johnson, 765
F.3d 702 (7th Cir. 2014); United States v. Farmer, 755 F.3d 849 (7th Cir.
2014); United States v. Baker, 755 F.3d 515 (7th Cir. 2014); United States v.
Bryant, 754 F.3d 443 (7th Cir. 2014); United States v. Siegel, 753 F.3d 705(7th Cir. 2014); United States v. Poulin, 745 F.3d 796 (7th Cir. 2014); United
States v. Shannon, 743 F.3d 496 (7th Cir. 2014); United States v. Adkins, 743
F.3d 176 (7th Cir.), cert. denied, 134 S. Ct. 2864 (2014); United States v. Wil-
liams, 739 F.3d 1064 (7th Cir. 2014); United States v. Evans, 727 F.3d 730(7th Cir. 2013); United States v. Goodwin, 717 F.3d 511 (7th Cir.), cert. de-
nied, 134 S. Ct. 334 (2013); United States v. Quinn, 698 F.3d 651 (7th Cir.
2012).
4 Nos. 14-1223, 14-2135 & 14-2482
I. Supervised Release
In 1984, Congress passed the Sentencing Reform Act,
which replaced the federal parole system with the system of
supervised release. See 18 U.S.C. § 3583; see generally S. Rep.
No. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. The
parole system allowed a convicted defendant to be released
prior to the expiration of his prison term on conditions de-
signed to reduce the likelihood of his committing further
crimes. Parole was criticized for creating uncertainty as to
how long a particular defendant would actually spend in
prison—i.e., the judicially-imposed sentence was not consid-
ered the “real sentence” because it was “subject to constant
adjustment by the parole commission”—which was viewed
as undermining public respect for the law and defendants’
morale. S. Rep. No. 98-225, at 56.
Under the replacement system of supervised release,
judges impose conditions at sentencing which take effect af-
ter the completion of the defendant’s prison term, and, in
contrast to parole, do not reduce the length of the custodial
portion of a defendant’s sentence. 2 The purposes of super-
vised release have been variously described as rehabilitation,
deterrence, training and treatment, protection of the public,
2 However, as discussed below, it is probable (and proper) that sentenc-
ing judges impose both custody and supervised release for somewhat
overlapping purposes, and if supervised release was not an option the
same judge might impose a lengthier custodial sentence. In this way, the
imposition of supervised release can be seen as potentially reducing the
custodial sentence.
Nos. 14-1223, 14-2135 & 14-2482 5
and reduction of recidivism. See United States v. Johnson, 529
U.S. 53, 59–60 (2000); United States v. Siegel, 753 F.3d 705, 708
(7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th
Cir. 2013). Supervised release was not intended to be im-
posed for the purposes of punishment or incapacitation,
“since those purposes will have been served to the extent
necessary by the term of imprisonment.” S. Rep. No. 98-225,
at 125; see also Johnson, 529 U.S. at 59 (“Supervised release
fulfills rehabilitative ends, distinct from those served by in-
carceration.”); cf. 18 U.S.C. § 3583(c) (directing a court con-
templating the imposition of supervised release to consider
most sentencing factors set forth in 18 U.S.C. § 3553(a), except
the need for the sentence to provide just punishment for the
offense). The Supreme Court has described supervised re-
lease as “the decompression stage” between prison and full
release. Johnson v. United States, 529 U.S. 694, 709 (2000).
“Prisoners may, of course, vary in the degree of help needed
for successful reintegration. Supervised release departed
from the parole system it replaced by giving district courts
the freedom to provide postrelease supervision for those,
and only those, who needed it. Congress aimed, then, to use
the district courts’ discretionary judgment to allocate super-
vision to those releasees who needed it most.” Id. (citation
omitted).
In some felony cases, including certain cases involving
drug-trafficking, sex offenses and domestic violence, super-
vised release is mandated by statute. See, e.g., 18 U.S.C. §
3583(a), (k); 21 U.S.C. §§ 841(b), 960(b). Between 2005 and
2009, approximately 41 percent of sentenced federal defend-
ants were subject to statutes mandating supervised release.
See U.S. Sentencing Comm’n, Federal Offenders Sentenced to
Supervised Release at 69 n.275 (2010), available at
6 Nos. 14-1223, 14-2135 & 14-2482
http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-publications/2010/20100722_
Supervised_Release.pdf (last visited Mar. 26, 2015, as were all
websites in this opinion). Although the sentencing guidelines
call for supervised release in all remaining cases with a pris-
on sentence of more than one year (with limited exceptions),
see U.S.S.G. § 5D1.1(a)(2), the Supreme Court made the rele-
vant provisions of the guidelines discretionary in 2005. See
United States v. Booker, 543 U.S. 220, 245 (2005); United States
v. Parker, 508 F.3d 434, 442 (7th Cir. 2007). The change from
supervised release being mandatory to discretionary has
made little practical difference: between 2005 and 2009, dis-
trict courts imposed a term of supervised release in 99.1 per-
cent of cases with a prison sentence in excess of one year but
not subject to statutorily-mandated supervised release. U.S.
Sentencing Comm’n, Federal Offenders Sentenced to Super-
vised Release at 7, 52 n.241. So while supervised release may
have been intended “for those, and only those, who needed
it,” Johnson, 529 U.S. at 709, the reality is that virtually all
federal defendants who spend at least a year in custody are
subject to supervised release.
The sentencing procedure generally is as follows. First
the probation officer conducts a presentence investigation
which culminates in the preparation of a presentence report.
See 18 U.S.C. § 3552(a), (b); Fed. R. Crim. P. 32(c), (d). The
presentence report identifies the kinds of sentences availa-
ble, including the terms of supervised release which may be
appropriate. See Fed. R. Crim. P. 32(d)(1)(C). The presen-
tence report is disclosed to the parties at least 35 days before
sentencing, and the parties state in writing any objections 14
days later. See Fed. R. Crim. P. 32(e)(2), (f)(1). At least seven
days before sentencing, the presentence report, including
Nos. 14-1223, 14-2135 & 14-2482 7
any addenda addressing objections, is submitted to the court
and the parties. See Fed. R. Crim. P. 32(g).
At the sentencing hearing, the sentencing judge hears
from the lawyers, the defendant and any victims who are
present, and may receive evidence related to objections. See
Fed. R. Crim. P. 32(i). Ultimately, the judge engages in a two-
part analysis. First, the judge determines the defendant’s
sentencing range under the guidelines. United States v. Ad-
kins, 743 F.3d 176, 189 (7th Cir.), cert. denied, 134 S. Ct. 2864(2014). Second, the judge makes “an individualized assess-
ment of the appropriate sentence based on the § 3553(a) fac-
tors.” Id. (quotation omitted). Any term of supervised release
is considered part of the overall sentence. Id. at 192. In de-
termining whether to include a term of supervised release,
and, if so, in determining the length of the term and the con-
ditions of supervised release, the judge is required to con-
sider the factors set out in 18 U.S.C. §§ 3553(a) and 3583(c)–
(d), which are discussed below.
The sentencing judge’s difficult task is not undertaken on
a completely blank slate, but rather is structured by statutes
and the guidelines, which recommend a range of terms of
supervised release depending upon the category of offense,
see 18 U.S.C. § 3583(b), and list certain mandatory and dis-
cretionary conditions, see id. §§ 3563(a)–(b), 3583(d); U.S.S.G.
§ 5D1.3. Some of the discretionary conditions are called
“standard,” U.S.S.G. § 5D1.3(c), while others are called “spe-
cial,” id. § 5D1.3(d)–(e), and are recommended for particular
offenses. Sentencing judges also are empowered to “impose
conditions of their own devising.” Siegel, 753 F.3d at 707.
After the sentencing judge exercises his or her “wide dis-
cretion in determining conditions of supervised release” at
8 Nos. 14-1223, 14-2135 & 14-2482
sentencing, Adkins, 743 F.3d at 193 (quotation omitted), the
judge typically has no further occasion to consider the de-
fendant’s supervised release until after the defendant has
completed the custodial portion of his sentence, begun serv-
ing supervised release under supervision by a federal proba-
tion officer, and the district court is presented with a motion
for modification, revocation, or termination of supervised
release. See 18 U.S.C. § 3583(e). Although not currently man-
dated by statute or the guidelines, we have suggested that
sentencing judges “[r]equire that on the eve of his release
from prison, the defendant attend a brief hearing before the
sentencing judge (or his successor) in order to be reminded
of the conditions of supervised release.” Siegel, 753 F.3d at
717. This “would also be a proper occasion for the judge to
consider whether to modify one or more of the conditions in
light of any changed circumstances brought about by the de-
fendant’s experiences in prison.” Id. Adopting this sugges-
tion would help mitigate the inherent difficulty in imposing
conditions at sentencing which do not go into effect until the
defendant is released from custody—often many years in the
future. See id. at 708. A defendant may change substantially
during a long prison sentence, and the world outside the
prison walls may change even more. A judgeship does not
come equipped with a crystal ball.
The sentencing judge may terminate supervised release
at any time after one year of supervision, if the judge deter-
mines such action is warranted by the defendant’s conduct
and serves the interests of justice. 18 U.S.C. § 3583(e)(1). For
example, of the 42,984 active supervised release cases that
closed during the 12-month period ending September 30,
2014, 13 percent were terminated early by the court. See
Admin. Office of the U.S. Courts, Post-Conviction Supervi-
Nos. 14-1223, 14-2135 & 14-2482 9
sion, Table E-7A, available at http://www.uscourts.gov/
uscourts/Statistics/JudicialBusiness/2014/appendices/E7ASep
14.pdf. Approximately 68 percent of supervised release cases
closed during the same period were closed “successfully”,
i.e., terminated (whether early or not) without revocation. Id.Approximately 61.3 percent of the supervised release viola-
tions during this period were for “technical violations” (such
as failure of a drug test, failure to report to a supervising
probation officer, or non-payment of financial conditions),
32.3 percent were for “major” violations (i.e., criminal of-
fenses with a sentence of more than 90 days imprisonment),
and 6.4 percent were for “minor” violations (i.e., criminal
offenses with a sentence of 90 days or less of imprisonment).
Id.The three cases here concern legal issues arising at the
original sentencing hearing, when the sentencing judge im-
posed a term of supervised release and selected the condi-
tions and length of the term. We organize our discussion of
the defendants’ challenges around four general principles
sentencing judges should consider when imposing condi-
tions of supervised release: (1) the importance of advance
notice of conditions being considered; (2) the need to justify
the conditions and the length of the term at sentencing by an
adequate statement of reasons, reasonably related to the ap-
plicable § 3553(a) factors; (3) the goal of imposing only spe-
cific, appropriately-tailored conditions—which is to say,
avoiding the imposition of vague or overbroad conditions;
and (4) the requirement to orally pronounce all conditions,
with the written judgment only clarifying the oral pro-
nouncement in a manner that is not inconsistent with an un-
ambiguous oral provision. Prior to turning to the defend-
10 Nos. 14-1223, 14-2135 & 14-2482
ants’ challenges, we outline the history and offenses of the
three defendants at issue.
II. Defendants’ History and Offenses
A. Jeffrey Jurgens
Defendant Jeffrey Jurgens is the product of a deplorable
childhood. He grew up in a rural Illinois house that was
strewn with garbage due to his mother’s hoarding; based
upon the photos admitted at sentencing, his childhood home
more closely resembled a landfill than a house. Jurgens’
mother was a neglectful alcoholic who “always had a beer in
her hand,” and his father, also an alcoholic, abused her until
they divorced when Jurgens was nine. No one taught
Jurgens proper hygiene, and he was teased and bullied at
school because he was dirty and smelled. Despite his up-
bringing, Jurgens graduated from high school in 2003 and
from DeVry University in 2005 with an associate’s degree.
He continued to live with his mother until she died in 2007.
At the time of his mother’s death, Jurgens was 23. He
moved into his own apartment and got a job with a tech
company as a help-desk technician. He held that job for
nearly six years until his arrest and detention in this case in
2013. During that time, he suffered severe social anxiety, left
his apartment only for work and groceries, and allowed gar-
bage to accumulate in his apartment because he feared en-
countering other people when he took out the trash. He had
occasional social contact with co-workers, but he has never
dated or had an intimate relationship.
Beginning in about 2007, Jurgens developed an interest in
pre-pubescent and adolescent girls and in child pornogra-
phy. For the next five years, he used file-sharing software to
Nos. 14-1223, 14-2135 & 14-2482 11
find child pornography and downloaded files to his com-
puter hard drives. On February 17, 2012, a Moline, Illinois,
police detective executed a search warrant at Jurgens’
apartment and seized three computer hard drives containing
69 videos of child pornography. After waiving his Miranda
rights, Jurgens told the detective that he had been watching
child pornography for about five years and knew it was ille-
gal. Jurgens said he did not pursue or have any contact with
minors. He said, “I can’t do anything when they are not
here.”
On September 25, 2013, a grand jury charged Jurgens
with one count of receipt and distribution of child pornog-
raphy in violation of 18 U.S.C. § 2252A(a)(2)(A), and one
count of possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). On October 24, 2013, Jurgens plead-
ed guilty to both counts without a written plea agreement.
On January 15, 2014, a probation officer filed an initial
presentence report, which was later revised on March 13,
2014, to reflect Jurgens’ objections. The report stated that the
statute required a minimum sentence of five years’ impris-
onment and a supervised-release term of five years to life on
each count. The report indicated that the advisory guidelines
range was 151 to 188 months of imprisonment and the
guidelines recommended a life term of supervised release.
The report stated, “[i]n addition to standard conditions of
supervised release … found at U.S.S.G. § 5D1.3, the Court
may impose the following special conditions,” and listed
seven “special conditions.” An addendum to the report indi-
cated that Jurgens objected to five of the proposed special
conditions.
12 Nos. 14-1223, 14-2135 & 14-2482
At a hearing originally scheduled for sentencing, the dis-
trict court ordered Jurgens to undergo a psychosexual eval-
uation and reset the date for sentencing. A licensed counse-
lor later diagnosed Jurgens with pedophilic disorder and so-
cial anxiety disorder. The counselor recommended the same
conditions of “community supervision” that the presentence
report listed and recommend that Jurgens receive counseling
to address his social anxiety in addition to sex offender
treatment.
At the sentencing hearing on June 26, 2014, Jurgens’ at-
torney objected to the proposed conditions of supervised re-
lease which use “these very broad and vague terms about
‘sexual arousal’ and ‘pornography’ and the like.” Jurgens’
attorney asked that the court fashion the conditions to “al-
low for Mr. Jurgens to have contact with minors who are rel-
atives of his and allow him to have contact with minors that
are incidental to employment.” Jurgens’ attorney then spoke
of the “irrationality” of U.S.S.G. § 2G2.2, 3 which produced a
guidelines range of 151 to 188 months of imprisonment for
Jurgens, and requested a sentence of 60 months of impris-
onment and 10 years of supervised release. The government
attorney requested a sentence of 108 months of imprison-
ment and 20 years of supervised release.
After hearing from Jurgens himself, the district judge ad-
dressed Jurgens’ offense in relation to other offenders, the
harm to the victims, aggravating factors, and Jurgens’ per-
sonal history and characteristics. The district judge then im-
3 See generally United States v. Maulding, 627 F.3d 285, 287–88 (7th Cir.
2010) (collecting cases addressing similar arguments).
Nos. 14-1223, 14-2135 & 14-2482 13
posed a sentence of 72 months of imprisonment and 20 years
of supervised release. The judge imposed 13 standard condi-
tions with no discussion, and six special conditions with dis-
cussion of each. The judge rewrote certain proposed special
conditions to accommodate the objections raised by Jurgens’
counsel, and did not impose the special condition proposed
by probation that Jurgens refrain from using the Internet for
the purpose of sexual arousal.
Jurgens appeals, contending that the district judge pro-
cedurally erred when she imposed 20 years of supervised
release without addressing his request for 10 years or mak-
ing appropriate findings. On appeal, Jurgens also challenges
each of the 19 standard and special conditions of supervised
release on the basis that they were imposed without appro-
priate findings and are impermissibly vague and overbroad.
B. Parrish Kappes
The details of Defendant Parrish Kappes’ childhood are
different from Jurgens’, but the themes are similar. Kappes’
parents separated when he was an infant, and his mother
took him to live in Arizona. In 1972, when Kappes was six
years old, he flew alone to Illinois, where his father and
grandmother lived. He had been physically abused and ne-
glected by his mother, and he “looked rough” when he ar-
rived in Illinois. He was given the choice of living with his
father or grandmother, and he chose the latter, feeling that
his father had earlier abandoned him. He lived with his
grandmother for most of the next 40 years until his arrest
and detention in this case. Kappes had not seen his mother
since he was a child, and he told the probation officer during
a pre-sentence interview that he could not remember his
mother’s name. Although Kappes graduated from high
14 Nos. 14-1223, 14-2135 & 14-2482
school, he finished near the bottom of his class, and he told
the probation officer he was illiterate. Although he main-
tained steady employment from 2006 to 2012, he grew “ac-
customed to being alone” and had difficulty socializing.
On October 15, 2012, law enforcement agents executed a
search warrant at the Tuscola, Illinois, house that Kappes
shared with his then-93-year-old grandmother. The agents
found 2,319 images and 182 videos of child pornography on
Kappes’ computer. Agents also found images taken by
Kappes of a 17-year-old female in a bikini. After waiving his
Miranda rights, Kappes admitted that he had been taking
pictures of this female and others while they played in an
outdoor pool adjacent to his home since the girl was approx-
imately seven or eight years old. In a footlocker, the agents
found over 30 pairs of children’s underwear which Kappes
claimed to have stolen 20 years earlier when he worked as a
furniture deliveryman.
Kappes was charged with three counts of distributing
child pornography and one count of possessing child por-
nography. After hearing two days of evidence, a jury found
Kappes guilty on all counts. The presentence report stated
that the guidelines range was 210 to 240 months of impris-
onment and five years to life of supervised release. The re-
port stated, “[i]n addition to standard conditions of super-
vised release … found at U.S.S.G. § 5D1.3, the Court may
impose the following special conditions,” and listed seven
special conditions which largely mirrored those recom-
mended in Jurgens’ presentence report. An addendum to the
report stated that Kappes’ attorney had no objections to the
report.
Nos. 14-1223, 14-2135 & 14-2482 15
At sentencing, Kappes’ attorney reiterated that Kappes
had no objections to the presentence report. Counsel for the
government requested a sentence of 240 months of impris-
onment and 25 years of supervised release. Government
counsel said she was requesting the statutory maximum be-
cause of, among other reasons, the graphic and violent im-
ages in Kappes’ child pornography collection. Kappes’ coun-
sel commented upon Kappes’ positive employment record
and record of caring for his grandmother. Kappes declined
to speak.
The district judge then discussed the “horrendous” na-
ture and circumstances of the offense, and the “disturbing”
character and history evidence of “taking pictures of neigh-
bors’ children and saving panties for 20 years.” The district
judge imposed a sentence of 240 months of imprisonment
and 25 years of supervised release. The judge imposed 13
standard conditions and the seven special conditions rec-
ommended in the presentence report.
Kappes appeals, contending that the district court erred
by imposing (1) four special conditions which were not ade-
quately supported by specific findings and are impermissi-
bly vague or overbroad, (2) two special conditions which re-
quired Kappes to pay for court-ordered treatment and test-
ing, and (3) three special conditions which appeared in the
written judgment but were not orally pronounced at sen-
tencing.
C. David Crisp, Jr.
Defendant David Crisp, Jr. (“Crisp”) followed in the
footsteps of his father, David Crisp, Sr. At the time Crisp
was charged in this case with possession with intent to dis-
16 Nos. 14-1223, 14-2135 & 14-2482
tribute crack cocaine, his father was serving a sentence in
federal prison for similar crack cocaine trafficking offenses.
Crisp later reported to probation that his father was in-
volved in his life when he was not incarcerated; however,
“he was incarcerated frequently.” Crisp likewise was in-
volved in his children’s lives when not incarcerated; he
claimed to have committed the instant offense because he
wanted to raise his one-year-old daughter and five-year-old
step-son in “relative comfort” and “the minimum wage job
of $8.25 an hour was just not cutting it.” Like his father be-
fore him, Crisp—35 years old at the time of his last arrest—
had amassed a substantial criminal history consisting of 32
arrests and 24 convictions (including four drug felonies)
during the previous 18 years.
Crisp pleaded guilty without a written plea agreement.
The presentence report stated that the guidelines range was
262 to 327 months of imprisonment and eight years of su-
pervised release. The report stated, “[i]n addition to stand-
ard conditions of supervised release … found at U.S.S.G. §
5D1.3, the Court may impose the following special condi-
tions,” and listed four special conditions. An addendum to
the report stated that Crisp’s attorney had no objections to
the report.
On May 15, 2014, Crisp was sentenced in the same court-
room where his father was sentenced in 2011. At the outset
of sentencing, defense counsel reiterated that she had no ob-
jections to the presentence report. Government counsel then
recommended a sentence of 286 months of imprisonment
and 10 years of supervised release. Defense counsel argued
that, despite Crisp’s failure to enter into a plea agreement,
“the Court can still consider the timeliness of [Crisp’s] coop-
Nos. 14-1223, 14-2135 & 14-2482 17
eration, the fact that he did render a proffer that was lengthy
… and he did accept responsibility in a very, very quick
manner.” Defense counsel asked the district judge “to depart
from the bottom of the guideline range to the maximum
amount that the Court feels is appropriate.”
After hearing from Crisp, the district judge discussed
Crisp’s criminal history and said that his career offender sta-
tus pursuant to the guidelines was appropriate. The judge
said that Crisp had “rehabilitative potential” based upon
Crisp’s allocution at sentencing and his “exceptional ac-
ceptance of responsibility.” The judge imposed a sentence of
240 months of imprisonment and eight years of supervised
release. The judge imposed 13 standard conditions and the
four special conditions recommended in the presentence re-
port.
Crisp appeals, contending that the district court erred by
(1) imposing three conditions of supervised release which
were not adequately supported by specific findings and are
impermissibly vague or overbroad; and (2) failing to com-
ment upon Crisp’s cooperation with law enforcement as a
substantial mitigating factor.
III. Advance Notice of the Conditions
The first general principle sentencing judges should con-
sider when imposing conditions of supervised release is that
it is important to give advance notice of the conditions being
considered. In most instances, this principle fits into the cat-
egory of recommended “best practice” rather than mandato-
ry requirement. Advance notice is only required of super-
vised release conditions that are not listed in a statute or the
guidelines. United States v. Thompson, 777 F.3d 368, 377 (7th
18 Nos. 14-1223, 14-2135 & 14-2482
Cir. 2015) (collecting cases). This is because “[d]efendant and
lawyer are charged with knowledge of the sentencing guide-
lines, which list the standard conditions along with a num-
ber of special ones.” United States v. Bryant, 754 F.3d 443, 446
(7th Cir. 2014).
Despite this charged knowledge, we have suggested that
sentencing judges require the probation office to include any
recommended conditions of supervised release—and the
reasons for the recommendations—in the presentence report
that is disclosed to the parties prior to the sentencing hear-
ing. See Thompson, 777 F.3d at 377; Siegel, 753 F.3d at 716–17.
We also have suggested, as a matter of “best practices,” that
sentencing judges: (a) send a list of the conditions that the
judge is contemplating (including the reasons) to the parties
prior to the sentencing hearing; and/or (b) explain at the sen-
tencing hearing what conditions the judge is inclined to im-
pose and why, then ask the parties whether they object to
any of them or have a reasonable need for more time to de-
cide whether to object, and adjourn the hearing if necessary.
Thompson, 777 F.3d at 377. An exception to these “best prac-
tice” suggestions would be conditions of supervised release
which are “administrative requirements applicable whenev-
er a term of supervised release is imposed,” such as “requir-
ing the defendant to report to his probation officer, answer
the officer’s questions, follow his instructions, and not leave
the judicial district without permission.” Thompson, 777 F.3d
at 378. “Once the judge has explained why supervised re-
lease is necessary, he should be permitted to impose the nec-
essary incidents of supervision without explanation.” Id.
The goal of providing the parties with advance notice of
the conditions at issue is to allow the parties to present an
Nos. 14-1223, 14-2135 & 14-2482 19
informed response. Cf. Irizarry v. United States, 553 U.S. 708,
715 (2008) (“Sound practice dictates that judges in all cases
should make sure that the information provided to the par-
ties in advance of the [sentencing] hearing, and in the hear-
ing itself, has given them an adequate opportunity to con-
front and debate the relevant issues.”); United States v. Scott,
316 F.3d 733, 735 (7th Cir. 2003) (“Knowledge that a condi-
tion of this kind was in prospect would have enabled the
parties to discuss such options intelligently.”). To the extent
not required by rule or the sentencing judge, we recommend
that defense counsel and government counsel make recom-
mendations and/or objections regarding the proposed condi-
tions of supervised release in advance of the sentencing
hearing. Cf. Fed. R. Crim. P. 32(f)(1) (requiring parties to
state in writing any objections to the presentence report
within 14 days of receipt).
Jurgens’ sentencing offers an example of the utility of ad-
vance notice by probation and timely objections by the de-
fendant. Jurgens objected to four of the special conditions
proposed in the presentence report, and the sentencing
judge responded by changing the language in three of the
objected-to conditions and declining to impose the fourth
one entirely. It is our hope that the combination of advance
notice, timely objections, and appropriate judicial response
to the objections will result in conditions better tailored to
fulfill the purposes of supervised release, less confusion and
uncertainty, and perhaps—Jurgens’ case notwithstanding—
fewer appeals.
The issue of advance notice of the proposed conditions is
potentially relevant to our standard of review. See United
States v. Farmer, 755 F.3d 849, 853 (7th Cir. 2014) (“[I]t seems
20 Nos. 14-1223, 14-2135 & 14-2482
problematic to conclude that the defendant waives objec-
tions to special conditions if he does not properly confront
conditions presented for the first time at the sentencing hear-
ing.”). “We recently recognized some tension in our cases as
to the proper standard of review” when a defendant fails to
“object” (or, more accurately, take “exception”) after the sen-
tencing judge imposes a condition to which the defendant
had no notice, because, for example, the probation officer
did not recommend it. United States v. Shannon, 743 F.3d 496,
499 (7th Cir. 2014) (collecting cases). In general, our rule has
been that the imposition of contested conditions are re-
viewed for an abuse of discretion, while uncontested condi-
tions are reviewed for plain error. United States v. Ross, 475
F.3d 871, 873 (7th Cir. 2007); cf. United States v. Baker, 755
F.3d 515, 522 (7th Cir. 2014) (allegations of procedural error,
such as whether a judge adequately explained his chosen
sentence, are reviewed de novo). Under either standard of re-
view, we must be mindful of the fact that “[t]he sentencing
judge is in a superior position to find facts and judge their
import under § 3553(a) in the individual case,” and “district
courts have an institutional advantage over appellate courts
in making these sorts of determinations, especially as they
see so many more Guidelines cases than appellate courts
do.” Gall v. United States, 552 U.S. 38, 51–52 (2007) (quota-
tions and alterations omitted).
The government contends that Jurgens, Kappes and
Crisp received notice of the conditions they now challenge
because all challenged conditions were recommended in the
respective presentence reports. Accordingly, the government
contends that plain error review is appropriate in each case
because Kappes and Crisp did not object to the presentence
report and each of Jurgens’ objections were accommodated
Nos. 14-1223, 14-2135 & 14-2482 21
by the conditions ultimately imposed by the sentencing
judge. Kappes concedes that plain error review applies to his
vagueness and overbreadth challenges. Jurgens argues that
abuse of discretion review is appropriate to his challenges of
the standard conditions because the presentence report
merely incorporated the standard conditions by reference,
rather than listing each standard condition in the report it-
self. Crisp offers no opinion on the standard of review, argu-
ing that the errors are reversible regardless of the standard
of review.
We find that, with respect to the challenges we consider
here, the outcome is the same regardless of the standard of
review. See United States v. Hinds, 770 F.3d 658, 665 (7th Cir.
2014) (same); Farmer, 755 F.3d at 854 (same); Shannon, 743
F.3d at 500 (same). Despite this finding, we caution future
defendants against withholding objections under the belief
that we will continue to treat the abuse-of-discretion and
plain-error standards of review as functionally interchange-
able in this context. Under plain-error review, unlike abuse-
of-discretion review, we are permitted but not required to
order correction of an error. 4 United States v. Olano, 507 U.S.
725, 735 (1993) (“[Federal Rule of Criminal Procedure] 52(b)
[governing plain error] is permissive, not mandatory. If the
forfeited error is plain and affects substantial rights, the
court of appeals has authority to order correction, but is not
4 An argument could be made that a sentencing judge may adopt any
unobjected-to conditions in the presentence report without the need to
make findings. Cf. Fed. R. Crim. P. 32(i)(3)(A) (a sentencing judge may
accept any undisputed portion of the presentence report). Because the
issue has not been raised by the parties, we do not consider it here.
22 Nos. 14-1223, 14-2135 & 14-2482
required to do so.” (quotation omitted)). A sentencing hear-
ing is not meant to be a dress rehearsal.
IV. Statement of Reasons and Appropriate Tailoring
The second principle—justifying the conditions by an ad-
equate statement of reasons—and the third—imposing ap-
propriately-tailored conditions—are interrelated. According-
ly, after outlining the parameters of each principle, we dis-
cuss the defendants’ challenges to specific conditions in con-
nection with both rules.
A. Statement of Reasons
The second general principle regarding the imposition of
conditions of supervised release that we address is that a
sentencing court must justify the conditions and the length
of the term at sentencing by an adequate statement of rea-
sons, reasonably related to the applicable § 3553(a) factors.
See Bryant, 754 F.3d at 445. This “allow[s] for meaningful ap-
pellate review”; it “promote[s] the perception of fair sentenc-
ing”; and it is a vital element in maintaining the “uniform
and constant” principle in the federal judicial tradition that
“the sentencing judge … consider[s] every convicted person
as an individual and every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue.” Gall, 552 U.S. at 50,
52 (quotation omitted).
The applicable factors are set out in 18 U.S.C. §§ 3553(a)
and 3583(c)–(d). Section 3583(d) places the factors into three
groups. First, the conditions of supervised release “must be
reasonably related to (1) the defendant’s offense, history and
characteristics; (2) the need for adequate deterrence; (3) the
need to protect the public from further crimes of the defend-
Nos. 14-1223, 14-2135 & 14-2482 23
ant; and (4) the need to provide the defendant with treat-
ment.” United States v. Angle, 598 F.3d 352, 360–61 (7th Cir.
2010); see 18 U.S.C. § 3583(d)(1). Next, the conditions “cannot
involve a greater deprivation of liberty than is reasonably
necessary to achieve the goal of deterrence, incapacitation,
and rehabilitation.” United States v. Goodwin, 717 F.3d 511,
522 (7th Cir.), cert. denied, 134 S. Ct. 334 (2013); see 18 U.S.C.
§ 3583(d)(2). Finally, the conditions must be consistent with
any pertinent statement that the United States Sentencing
Commission issues. 5 18 U.S.C. § 3583(d)(3); cf. Siegel, 753
F.3d at 708 (noting that, logically, this factor is not applicable
to conditions already listed in the guidelines). Unfortunate-
ly, applying this “vague and general” list of unweighted fac-
tors to a specific case is unwieldy in practice, “and cannot
yield an objective result.” Siegel, 753 F.3d at 707.
The judge need not address every factor “in checklist
fashion, explicitly articulating its conclusions regarding each
one.” Shannon, 518 F.3d at 496; see United States v. Starko, 735
F.3d 989, 992 (7th Cir. 2013) (“Courts do not have to engage
in a discourse of every single § 3553(a) factor; however, it is
also the case that a rote statement that the judge considered
all relevant factors will not always suffice.” (quotation omit-
ted)). “[T]he court may simply give an adequate statement of
5 The statute requires that each discretionary condition be “consistent
with any pertinent policy statements” by the Sentencing Commission. 18
U.S.C. § 3583(d)(3). The defendants in these cases appear to argue that a
sentencing judge is required to identify a particular policy statement is-
sued by the Sentencing Commission prior to imposing any discretionary
condition of supervised release. We do not agree. However, if a chal-
lenged condition is inconsistent with a pertinent policy statement, then
the condition would violate § 3583(d)(3).
24 Nos. 14-1223, 14-2135 & 14-2482
reasons, consistent with § 3553(a), for thinking the sentence
it selects is appropriate.” Shannon, 518 F.3d at 496. “[T]he
more onerous the term [of supervised release], the greater
the justification required—and … a term can become oner-
ous because of its duration as well as its content.” United
States v. Quinn, 698 F.3d 651, 652 (7th Cir. 2012); cf. Gall, 552
U.S. at 50 (“We find it uncontroversial that a major depar-
ture [from the guidelines range] should be supported by a
more significant justification than a minor one.”). “Special”
conditions often require more justification than “standard”
conditions—but not always—and a condition’s label in the
guidelines is ultimately irrelevant. All discretionary condi-
tions, whether standard, special or of the judge’s own inven-
tion, require findings. See Bryant, 754 F.3d at 445. We empha-
size that the judge need not give a speech about each condi-
tion, but conversely, we believe sentencing judges rarely, if
ever, should list a multitude of conditions without discus-
sion. This rule, however, is subject to a harmless error analy-
sis. See Siegel, 753 F.3d at 713.
The fact that a sentencing judge may reduce or modify
terms of supervised release at any time, see 18 U.S.C.
§ 3583(e)(2), may lead the judge to resolve uncertainties at
the time of sentencing in favor of a long but reducible peri-
od. “[S]till this is a subject that requires an explicit decision
by the judge after considering the defendant’s arguments.”
Quinn, 698 F.3d at 652. We also have advised sentencing
judges to “consider the possibility of setting sunset dates for
some of the more onerous terms, so that [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] re-
lapse.” Id. at 652–53. In Quinn, we vacated a term of super-
Nos. 14-1223, 14-2135 & 14-2482 25
vised release and remanded for resentencing when the judge
rejected the defendant’s request for a 10-year term of super-
vised release and instead imposed a lifetime term without
discussion of the length of defendant’s supervision, the
terms that he would be required to follow, or much of the
defendant’s evidence that he presented a lower-than-normal
risk of recidivism. See id. at 652.
Jurgens contends that the sentencing judge erred in im-
posing a 20-year term of supervised release without discus-
sion of his request for a 10-year term. Jurgens points to the
statement in Quinn that it is not sufficient to simply choose a
supervised release term within the guidelines range; “a
judge still must consider a defendant’s serious arguments
for a sentence below the Sentencing Commission’s recom-
mendations.” Id. Jurgens contends that we should vacate the
20-year term and “remand with instructions that the district
court consider the § 3583(c) factors when addressing Mr.
Jurgens’s requested 10 year term of supervised release.”
The Sentencing Commission recommends the statutory
maximum term of supervised release for every sex offense,
see U.S.S.G. § 5D1.2(b)(2), and any sentence within the guide-
lines range is “entitled to a presumption of substantive rea-
sonableness.” Quinn, 698 F.3d at 652 (citing, inter alia, Rita v.
United States, 551 U.S. 338 (2007)). The 20-year supervised-
release term Jurgens received is below the statutory maxi-
mum of life and thus below the term recommended by the
Sentencing Commission. However, even in this situation,
while the sentencing judge “need not discuss each section
3553(a) factor at sentencing and need not respond to every
pithy argument that a defendant raises,” a defendant is enti-
26 Nos. 14-1223, 14-2135 & 14-2482
tled to a discussion of his “principal” arguments. United
States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009).
Prior to sentencing, Jurgens submitted a 21-page “com-
mentary on sentencing factors.” This document contains ex-
tensive discussion of factors favoring leniency in the term of
imprisonment, culminating with a request for a custodial
sentence of 60 months. The document contains a brief dis-
cussion of supervised release, focused exclusively on his ob-
jections to four terms of supervised release recommended in
the presentence report. The document contains no recom-
mendation as to—or even mention of—the length of the term
of Jurgens’ supervised release. Jurgens’ objections in the ad-
dendum to the presentence report likewise contain nary a
mention of the length of supervised release. In his remarks at
the sentencing hearing, Jurgens’ counsel spoke expansively
on Jurgens’ history and need for sex-offender treatment, the
irrationality of the guidelines imprisonment-range, and the
lack of evidence of “hands-on sex offenses.” At the conclu-
sion of his remarks, after asking for 60 months in custody,
Jurgens’ counsel devoted a single sentence to the length of
the term of supervised release: “We ask for a ten-year period
of supervised release with appropriate conditions therein.”
In this context, we do not consider Jurgens’ request for a
10-year term to be one of his “principal” arguments, requir-
ing discussion by the sentencing judge. Villegas-Miranda, 579
F.3d at 801. We find that the judge did not err in focusing her
discussion on the topics focused upon by Jurgens’ counsel.
Of course, a sentencing judge must always adequately ex-
plain his or her choice as to the length of custody and super-
vised release, consistent with the relevant § 3553(a) factors.
See Farmer, 755 F.3d at 852. In this case, we find that was
Nos. 14-1223, 14-2135 & 14-2482 27
done, particularly given that the length of custody and su-
pervised release were both significantly below the guide-
lines range. Cf. Quinn, 698 F.3d at 652 (more onerous terms
require greater justification, and “a term can become oner-
ous because of its duration as well as its content”). The judge
chose to discuss her reasons for imposing the sentence as a
whole, and we find this to be a reasonable choice in this case.
The judge discussed Jurgens’ troubled personal history and
characteristics and also discussed her “concern” that, after
he was caught but prior to incarceration, he continued to
watch “simulated depictions” of child pornography. Moreo-
ver, even if the judge erred by not adequately explaining her
decision to follow the six-year custodial sentence (near the
low end of the statutory range) with 20 years of supervised
release (meaning Jurgens will complete his supervised re-
lease when he is approximately 54 years old), we find this
error to be harmless in this case. “[A] district court may find
it proper to impose a longer term of supervised release to
follow a relatively shorter term of imprisonment,” United
States v. Albertson, 645 F.3d 191, 198 (3d Cir. 2011), and that is
what the sentencing judge did in this case.
Jurgens also argues that the sentencing judge erred by
failing to provide an adequate statement of reasons for each
of the 19 standard and special conditions of supervised re-
lease the judge imposed. We address those arguments below
in conjunction with our discussion of the individual condi-
tions.
B. Specific, Appropriately Tailored Conditions
The third sentencing principle we address is that sentenc-
ing judges should impose conditions of supervised release
which are (a) appropriately tailored to the defendant’s of-
28 Nos. 14-1223, 14-2135 & 14-2482
fense, personal history and characteristics; (b) involve no
greater deprivation of liberty than is reasonably necessary to
achieve the goals of deterrence, protection of the public, and
rehabilitation; and (c) sufficiently specific to place the de-
fendant on notice of what is expected. See Adkins, 743 F.3d at
196 (discussing “the importance of notice and reasonably
narrow tailoring,” in crafting conditions of supervised re-
lease); Goodwin, 717 F.3d at 525 (“[E]ach special condition
imposed must be tailored to Goodwin and his needs and in-
volve no greater deprivation of liberty than is reasonably
necessary to achieve the goals of deterrence, protection of
the public, and rehabilitation.” (citation omitted)); United
States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999) (“A condi-
tion of supervised release is unconstitutionally vague if it
would not afford a person of reasonable intelligence with
sufficient notice as to the conduct prohibited.”). This rule
functions as a limit to a sentencing judge’s “wide discretion
in determining conditions of supervised release.” Adkins, 743
F.3d at 193 (quotation omitted).
We have recognized “the difficulty of drafting special
conditions.” Id. at 196. We have suggested that sentencing
judges define the crucial terms in a condition in a way that
“provides clear notice to [the defendant] (preferably through
objective rather than subjective terms),” and/or “includes a
mens rea requirement (such as intentional conduct).” Id. We
have further suggested that the judge “[m]ake sure that each
condition imposed is simply worded, bearing in mind that,
with rare exceptions, neither the defendant nor the proba-
tion officer is a lawyer and that when released from prison
the defendant will not have a lawyer to consult.” Siegel, 753
F.3d at 717.
Nos. 14-1223, 14-2135 & 14-2482 29
1. Standard Conditions
As we have said, the fact that certain non-administrative
conditions are labeled “standard” does not render them im-
mune from the requirements that they be adequately sup-
ported and not vague or overbroad. See Thompson, 777 F.3d
at 376–78.
In Jurgens’ case, the sentencing judge imposed 13 stand-
ard conditions without giving reasons. Jurgens challenges
each standard condition as having been improperly imposed
without notice and without findings, and further challenges
most of them as being vague, overbroad, and/or an excessive
deprivation of his liberties. Jurgens first contends that the
standard conditions were omitted from the presentence re-
port, which deprived him of notice and an opportunity to
object. Jurgens’ presentence report referred to the “standard
conditions of supervised release … found at U.S.S.G. §
5D1.3.” While it would be better practice for probation offic-
ers to detail each condition being proposed, along with rea-
sons why they would be applicable in a particular defend-
ant’s case, we cannot say that Jurgens was deprived of notice
that each of the standard conditions listed in U.S.S.G. §
5D1.3 would be considered by the sentencing judge.
Jurgens finds more solid ground for his contention that
the judge imposed 13 standard conditions without making
findings consistent with the § 3553(a) factors. With respect to
the substantive standard conditions, Jurgens is correct that
the sentencing judge imposed them without explanation as
to why they were appropriate in Jurgens’ case and involved
no greater deprivation of liberty than is reasonably neces-
sary to achieve the permissible goals of supervised release.
See Goodwin, 717 F.3d at 523–24. However, we nonetheless
30 Nos. 14-1223, 14-2135 & 14-2482
must look at the conditions to determine whether the failure
to give reasons was harmless. See Siegel, 753 F.3d at 713. As
we did in Thompson and Siegel, we highlight the ambiguities
and/or overbreadth in many of the standard conditions, and
suggest modifications for improving them.
The condition forbidding the defendant from “associ-
at[ing] with any persons engaged in criminal activity” and
“associat[ing] with any person convicted of a felony, unless
granted permission to do so by the probation officer,” is “fa-
tally vague” because it appears to impose strict liability and
does not define “associate.” Thompson, 777 F.3d at 376–77. A
suggested modification would be to forbid the defendant “to
meet, communicate, or otherwise interact with a person
whom he knows to be engaged, or planning to be engaged,
in criminal activity.” Id. at 377.
The condition that the defendant “refrain from excessive
use of alcohol,” is vague because “excessive use” is not de-
fined. Id. at 376. A suggested definition for “excessive” alco-
hol use for men is “binge drinking or heavy drinking,” with
“heavy drinking” being defined as “consuming 15 drinks or
more per week.” Siegel, 753 F.3d at 715 (quotation omitted).
While the government points to no evidence contradicting
Jurgens’ claim he was a teetotaler, the government nonethe-
less contends the condition banning excessive alcohol use is
appropriate because Jurgens is the child of alcoholics. The
sentencing judge did not say this, and given the lack of any
apparent connection between alcohol use and Jurgens’ of-
fense, we think the imposition of this condition without find-
ings was not harmless.
The condition that “the defendant shall support his or
her dependents and meet other family responsibilities” is
Nos. 14-1223, 14-2135 & 14-2482 31
inappropriate in Jurgens’ case because he has no depend-
ents, see Thompson, 777 F.3d at 376, and it is not apparent
what “other family responsibilities” means, given that it ap-
pears to mean something different than “support[ing]”
Jurgens’ as-yet nonexistent dependents. To the extent the
condition requires only financial support, as argued by the
government, the condition should make that explicit and
should include a limitation which takes into account the de-
fendant’s ability to pay. Cf. Siegel, 753 F.3d at 714 (“Revoking
a defendant’s supervised release and recommitting him to
prison for mere inability to pay would constitute imprison-
ment for debt.”).
The condition that “the defendant shall notify third par-
ties of risks that may be occasioned by the defendant’s crim-
inal record or personal history or characteristics” contains
numerous ambiguities. “There is no indication of what is
meant by ‘personal history’ and ‘characteristics’ or what
‘risks’ must be disclosed to which ‘third parties.’” Thompson,
777 F.3d at 379. Presumably, the meaning of these terms
would change from defendant to defendant, which makes
definitions particularly important with this condition.
The condition that the defendant is to notify his proba-
tion officer of any “change in ... employment” fails to indi-
cate “whether change in employment just means changing
employers or also includes changing from one position to
another for the same employer at the same workplace.” Id.
Likewise, the condition requiring the defendant to work
“regularly at a lawful occupation” fails to define “regularly.”
The condition prohibiting the defendant from “fre-
quent[ing] places where controlled substances are illegally
sold, used, distributed, or administered,” contains no “indi-
32 Nos. 14-1223, 14-2135 & 14-2482
cation of how many trips constitute ‘frequent[ing]’ such
places.” Id. More importantly, the condition, read literally,
improperly imposes strict liability because “there is no re-
quirement that [the defendant] know or have reason to
know or even just suspect that such activities are taking
place.” Id. Likewise, the condition that “the defendant shall
not leave the judicial district without … permission” would
be improved by explicitly adding a scienter requirement,
particularly in a case where it is foreseeable that a defendant
will reside near the boundary of two judicial districts within
the same state.
The condition that “the defendant shall answer truthfully
all inquiries by the probation officer” “essentially asks for a
waiver of the right not to be forced to incriminate oneself,
because the condition would require the defendant to an-
swer ‘yes’ if he were asked whether he had committed an-
other crime and he had.” Id. at 379–80. In the context of pro-
bation, the Supreme Court has held that a state probation
requirement that the probationer “be truthful with the pro-
bation officer ‘in all matters,’” was insufficient to require Mi-
randa warnings because such a condition does not penalize
the right to remain silent. Minnesota v. Murphy, 465 U.S. 420,
422, 434 (1984). The Court said that the “the State could not
constitutionally carry out a threat to revoke probation for the
legitimate exercise of the Fifth Amendment privilege,” but
the “probation condition [at issue] proscribed only false
statements; it said nothing about [the defendant’s] freedom
to decline to answer particular questions and certainly con-
tained no suggestion that his probation was conditional on
his waiving his Fifth Amendment privilege with respect to
further criminal prosecution.” Id. at 437, 438. We have inter-
preted Murphy as drawing a line between “a merely plausi-
Nos. 14-1223, 14-2135 & 14-2482 33
ble fear that invoking one’s Fifth Amendment privilege will
get one into trouble with the probation authorities,” and
“the police tell[ing] the probationer that unless he talks his
probation will be revoked.” United States v. Cranley, 350 F.3d
617, 622 (7th Cir. 2003). The former does not require Miranda
warnings, while the latter does. Id. Because we are remand-
ing for resentencing for other reasons, we decline to decide
on which side of the Murphy line this condition falls. On re-
mand, Jurgens may request that the standard condition that
“the defendant shall answer truthfully all inquiries by the
probation officer” should include language indicating that
the condition does not prevent the defendant from invoking
his Fifth Amendment privilege against self-incrimination.
We do not, however, hold here that such language is re-
quired.
Jurgens contends that his Fifth Amendment rights also
are implicated by the separate standard condition requiring
him to “notify the probation officer within seventy-two
hours of being arrested or questioned by a law enforcement
officer.” We do not see how the mere fact of an arrest or law
enforcement contact is itself incriminating, and Jurgens
points us to no authority so holding. And unlike the previ-
ous condition, which required “all inquiries” to be answered,
there is nothing in this condition which requires the defend-
ant to answer any follow-up questions by the probation of-
ficer which may tend to elicit incriminating answers. With
respect to the lack of findings to support this condition, we
think it is harmless in this instance. Clearly, this condition
assists the probation officer in monitoring the defendant’s
conduct and compliance with the other conditions of release,
most notably, the mandatory condition that the defendant
commit no other criminal offenses.
34 Nos. 14-1223, 14-2135 & 14-2482
Jurgens challenges the standard condition that “the de-
fendant shall permit a probation officer to visit him or her at
any time at home or elsewhere and shall permit confiscation
of any contraband observed in plain view of the probation
officer” as infringing on his Fourth Amendment right to be
free from warrantless nighttime searches. This condition is
not as broad as the conditions we vacated in Farmer, 755 F.3d
at 854–55, and Goodwin, 717 F.3d at 523, 6 and thus does not
implicate the defendant’s Fourth Amendment rights to the
same extent. However, the visitation standard condition is
nonetheless broadly worded, and “would allow the proba-
tion officer to ‘visit’ the defendant at 3:00 a.m. every morn-
ing and look around for contraband, and also allow him to
follow the defendant everywhere, looking for contraband.”
Thompson, 777 F.3d at 380. The sentencing judge made no ef-
fort to explain why this condition—especially in its current,
broadly worded form—is connected to Jurgen’s offense, his-
tory, and personal characteristics, or how it is reasonably
necessary to furthering the deterrence, public protection,
and rehabilitation goals referred to in 18 U.S.C. § 3583(d)(2).
Given that Jurgens’ offense exclusively involved images on a
computer—which presumably would not be left in plain
view when Jurgens heard a knock on the door—and there is
no indication Jurgens has ever possessed any other form of
“contraband,” there is no readily apparent justification for
this condition to be imposed upon Jurgens. Accordingly, we
cannot find that the lack of explanation was harmless. See
Thompson, 777 F.3d at 380 (“Regardless of any possible con-
6 A modified version of that broader search condition was imposed upon
Jurgens as a “special condition,” and is discussed infra.
Nos. 14-1223, 14-2135 & 14-2482 35
stitutional concern, [this condition is] too broad in the ab-
sence of any effort by the district court to explain why [it is]
needed.”); cf. Goodwin, 717 F.3d at 523 (“Although we stop
short of stating that such [search] restrictions could never be
appropriate in these circumstances, our skepticism leads us
to conclude that the district court must provide some justifi-
cation for these particular conditions.”).
Jurgens contends that the condition prohibiting him from
entering “into any agreement to act as an informer or a spe-
cial agent of a law enforcement agency without the permis-
sion of the court” prevents him “from pursuing a key ave-
nue for reducing his criminal exposure in the event he com-
mits a new crime.” But this argument presumes the court
unreasonably denies him permission, which seems to be an
unlikely enough event that the imposition of this condition
does not constitute an abuse of discretion, much less plain
error. Moreover, the lack of findings to support this condi-
tion is harmless because, although there are occasions “when
the law enforcement benefits to the community justify per-
mitting the offender to engage in this high-risk activity,”
“[a]cting as a confidential informant is generally inconsistent
with the rehabilitative and re-integrative goals of supervi-
sion.” Admin. Office of the U.S. Courts, Guide to Judiciary
Policy, Vol. 8, pt. E, § 460.60.20 (2011), available at
https://wvn.fd.org//pdf/Part_E%20109.pdf.
We have focused upon Jurgens’ challenges to the stand-
ard conditions imposed upon him because Jurgens challeng-
es each of the standard conditions on appeal. The same 13
standard conditions imposed upon Jurgens were imposed
upon Kappes and Crisp, with the exception that Crisp was
prohibited from “any” use of alcohol instead of “excessive”
36 Nos. 14-1223, 14-2135 & 14-2482
use. The ban on “excessive” use of alcohol is the only stand-
ard condition challenged on appeal by Kappes, and it must
be vacated for the same reasons this condition was vacated
as to Jurgens. Because we are ordering a resentencing for
Kappes, our comments above regarding the other 12 stand-
ard conditions should be considered by Kappes’ sentencing
judge as well.
On appeal, Crisp challenges the standard conditions
banning “any” use of alcohol and requiring him to “sup-
port” his dependents and “meet other family responsibili-
ties.” Unlike Jurgens and Kappes, there is evidence that
Crisp consumed alcohol: he reported to the probation officer
that he drank alcohol three to four times a week, but not to
intoxication. The sentencing judge imposed the alcohol ban
with no explanation for how it connected to Crisp’s offense
or history. Perhaps a rationale could be offered adequate to
support a total or—more likely—an “excessive” alcohol ban,
but that rationale is not sufficiently apparent that we may
declare harmless the failure to make any findings in support
of the condition as written. See Baker, 755 F.3d at 524 (vacat-
ing a complete ban on alcohol despite defendant’s statement
that he consumed a six-pack of beer or more twice per week,
because “there is no evidence that Baker’s alcohol use has
contributed to his repeated criminal conduct or that Baker is
dependent on alcohol”).
The failure to give reasons for imposing the condition re-
quiring Crisp to “support” his dependents and “meet other
family responsibilities” was harmless given the central role
Crisp’s family played in the presentence report and the
comments made by the defense and the judge at sentencing.
However, our other comments made above regarding this
Nos. 14-1223, 14-2135 & 14-2482 37
condition apply with equal force to Crisp. The meaning of
the phrase, “other family responsibilities,” is not apparent,
given that it appears to mean something different than
“support[ing]” Crisp’s dependents. To the extent the condi-
tion requires only financial support, the condition should
make that explicit and should include a limitation which
takes into account the defendant’s ability to pay. As with
Kappes, because we are ordering a resentencing for Crisp,
our comments above regarding the other 11 standard condi-
tions which were not challenged by Crisp should be consid-
ered by Crisp’s sentencing judge.
We are not the first court to be presented with at least
some of these objections to the standard conditions. “A
number of decisions in other circuits brush aside objections
to the breadth and ambiguity of the many conditions of su-
pervised release imposed by district judges.” Thompson, 777
F.3d at 380 (collecting cases). Other courts have interpreted
an overbroad or ambiguous condition narrowly, for exam-
ple, by reading a scienter requirement into a condition that is
silent on the issue. See United States v. Phillips, 704 F.3d 754,
767–68 (9th Cir. 2012) (construing the standard condition
prohibiting the defendant from “frequent[ing] places where
controlled substances are illegally sold” as “prohibit[ing]
Phillips from knowingly going to a specific place where drugs
are illegally used or sold, but ... not prohibit[ing] him from ...
going to a given neighborhood simply because a person is
selling drugs somewhere within that neighborhood”); United
States v. Green, 618 F.3d 120, 123 (2d Cir. 2010) (same, regard-
ing a condition prohibiting association with street gangs).
Likewise, we have imposed “an appropriate limiting con-
struction” to a condition of supervised release prohibiting a
defendant from “associat[ing] … with any member or organ-
38 Nos. 14-1223, 14-2135 & 14-2482
ization which espouses violence or the supremacy of the
white race,” despite “the absence of an explicit scienter re-
quirement in the restriction.” Schave, 186 F.3d at 843. Similar-
ly, we have previously decided that the erroneous imposi-
tion of two overbroad conditions does not amount to plain
error requiring our intervention because “conditions of su-
pervised release are readily modifiable at the defendant’s
request.” United States v. Silvious, 512 F.3d 364, 371 (7th Cir.
2008); accord United States v. McKissic, 428 F.3d 719, 726 (7th
Cir. 2005) (same, regarding the imposition of a condition
without notice to the defendant).
However, as in Adkins, “this is not a case where we can
tweak the relevant condition[s] easily.” 743 F.3d at 195 (quo-
tation omitted).We have identified numerous conditions
with troublesome provisions, and “we would need to define
multiple key terms or provide multiple limiting construc-
tions.” Id. at 196. “[B]ecause the district court will retain ju-
risdiction over this case for many years, including the power
to amend the conditions of supervised release at any time, it
is in a superior position to write a new condition, if it so
chooses.” Id. (citing 18 U.S.C. § 3583(e)(2)). As for declining
to remand in favor of requiring the defendant to request
modification at a later time, once a defendant is serving su-
pervised release, he typically finds himself without the right
to counsel and may lack the legal sophistication to recognize
the potential infirmities in the conditions he has been or-
dered to obey. Also, in an effort to avoid the ire of the proba-
tion officer and judge who hold his liberty in their hands, the
unrepresented defendant on supervised release may opt to
forgo his right to request modification, and either attempt to
abide by an overbroad condition or ignore the condition and
hope it is not discovered. Accordingly, in this instance, we
Nos. 14-1223, 14-2135 & 14-2482 39
find “[i]t is preferable for the district court to specify limita-
tions in a condition of supervised release in the condition
itself” at the time of sentencing, rather than leaving it to ei-
ther the appellate court to introduce limitations or the de-
fendant on supervised release to make a motion for modifi-
cation. Thompson, 777 F.3d at 380.
2. Special Conditions
a. Bans on Mood-Altering Substances,
Pornography, and Internet
Both Kappes and Crisp are subject to special conditions
banning the purchase, possession or use of any “mood alter-
ing substance.” This phrase is not defined nor is its meaning
self-evident. Siegel, 753 F.3d at 713 (“It could include coffee,
cigarettes, sugar, and chocolate, among many others; yet
these substances are not causal factors of recidivist behav-
ior.”). A better definition for “mood altering substances,”
although not the only one, would be “psychoactive sub-
stances that impair physical or mental functioning, including
street, synthetic, or designer drugs.” Id. (quotation marks
omitted). We also have suggested simply prohibiting “illegal
mood-altering substances.” United States v. Cary, 775 F.3d
919, 924 (7th Cir. 2015). In Kappes’ case, the sentencing judge
offered no reasons for imposing the condition, and the rec-
ord offers no indication Kappes has ever used psychoactive
substances, so we cannot say that the lack of findings as to
this condition was harmless. Therefore, Kappes’ special con-
dition number one is vacated. The same condition also con-
tains limitations on the use of alcohol (a total ban for Crisp
and a ban on “excessive” use for Kappes), and our com-
ments made above related to the standard condition limiting
the use of alcohol apply with equal force to this duplicative
40 Nos. 14-1223, 14-2135 & 14-2482
special condition. The special condition also permits testing
for use of alcohol, but to the extent the defendant is allowed
to consume non-excessive amounts of alcohol, the sentenc-
ing judge should indicate the purpose of this testing if this
condition is reimposed in some form. See Baker, 755 F.3d at
525; Siegel, 753 F.3d at 716.
Kappes is subject to special condition numbers four and
seven, banning him from receiving or viewing “any materi-
al, legal or illegal, that contains pornography,” and forbid-
ding him from “us[ing] the Internet … for the purpose of
sexual arousal.” “Adult pornography, unlike child pornog-
raphy, enjoys First Amendment protection, and so we must
be especially cautious when considering a ban on possessing
adult pornography.” Shannon, 743 F.3d at 500. We have
found that special conditions such as Kappes’ special condi-
tion numbers four and seven do not survive a vagueness or
overbreadth challenge, irrespective of whether plain-error
review or abuse-of-discretion review applied. See id.; Adkins,
743 F.3d at 194; Goodwin, 717 F.3d at 525. We again so find
here.
In Jurgens’ case, the presentence report recommended
the identical pornography and Internet-usage conditions
imposed upon Kappes, but the sentencing judge declined to
impose the Internet-usage condition and modified the por-
nography condition to prohibit Jurgens from receiving or
viewing “any material, legal or illegal, that contains illegal
pornography as that is defined in the U.S. Code.” Despite
the sentencing judge’s modifications, Jurgens complains that
the reference to “legal” material is “plainly a scrivener’s er-
ror,” and the condition is “redundant given that the manda-
tory condition banning the commission of federal or state
Nos. 14-1223, 14-2135 & 14-2482 41
offenses prohibits the [same] conduct.” Jurgens is correct,
but any error is harmless. Moreover, given Jurgens’ offense,
the sentencing judge may have wished to emphasize that
Jurgens is prohibited from possessing illegal pornography. If
so, the sentencing judge may make that clear on remand.
b. Treatment Programs and Computer
Monitoring
Jurgens is required by special condition numbers one,
two, and five to participate in “psychiatric services and/or a
program of mental health counseling and treatment,” “sex
offender treatment,” and probation’s “Computer and Inter-
net Monitoring Program.” Jurgens contends on appeal that
these special conditions are greater than necessary depriva-
tions of his liberty and were not supported by adequate find-
ings.
With respect to the conditions requiring mental-health
counseling and treatment and sex-offender treatment,
Jurgens did not object to these special conditions despite
their appearance in the presentence report. Jurgens himself
told the sentencing judge: “I want to use this as an oppor-
tunity to turn my life around by making use of any and all
education, counseling and guidance that is made available to
me.” 7 Prior to sentencing, the judge ordered a psychosexual
evaluation of Jurgens. Jurgens was diagnosed with an anxie-
ty disorder and a pedophilic disorder. Jurgens’ attorney em-
phasized Jurgens’ “abusive childhood situation,” requested
7 Jurgens came close to waiving this challenge. See Cary, 775 F.3d at 927
(“We will not second-guess conditions of supervised release imposed
consistent with an offender’s request in the district court.”).
42 Nos. 14-1223, 14-2135 & 14-2482
a “ten-year period of supervised release with appropriate
conditions,” and asked for Jurgens to be housed in a prison
where “he gets the benefit of sex offender … treatment.” The
sentencing judge then commented upon Jurgens’ wretched
childhood wherein Jurgens “never learned to value
[him]self” and attributed Jurgens’ anxiety disorder to his
childhood. The judge commented on her concern that, after
being caught with child pornography but prior to his arrest
and incarceration, Jurgens collected anime, which is “just
animated, simulated depictions of the same kinds of things
that … you understood you could no longer look at.” The
judge found that the length of time Jurgens viewed the vide-
os depicting child pornography and the nature of the images
were aggravating factors. The judge ordered the mental-
health treatment and sex-offender treatment conditions “be-
cause of the information contained about your mental health
in the [presentence report] and also in the psychosexual
evaluation regarding concerns about pedophilia, [and] also
concerns about your high level of social anxiety and avoid-
ance issues.” We find that these findings are sufficient pur-
suant to § 3583(d) to survive plain-error or abuse-of-
discretion review of both conditions. 8 See Evans, 727 F.3d at
733–35; Ross, 475 F.3d at 875.
8 We have encouraged judges to “consider the possibility of setting sun-
set dates for some of the more onerous terms.” Quinn, 698 F.3d at 652.
Although we find no plain error in the imposition of the treatment con-
ditions for the full term of Jurgens’ supervised release, on remand the
sentencing judge may consider imposing sunset dates on the treatment
conditions. If treatment continues to be warranted beyond the sunset
dates, the term may be extended. See Thompson, 777 F.3d at 375.
Nos. 14-1223, 14-2135 & 14-2482 43
On appeal, Jurgens takes particular exception to the con-
dition that he “will submit to physiological testing, includ-
ing polygraph testing, which may be part of a sex offender
treatment program as directed by the U.S. Probation Of-
fice.” 9 Jurgens contends that physiological testing includes
plethysmograph testing, 10 which he contends is a greater
than necessary deprivation of his liberty interests. Plethys-
mograph testing is physically intrusive and controversial,
but it “has been recognized by some psychologists and re-
searchers as a useful technique in the treatment of sexual of-
fenders,” United States v. Weber, 451 F.3d 552, 565 (9th Cir.
2006), and “courts have upheld conditions requiring offend-
ers to undergo [plethysmograph] testing under various legal
challenges.” United States v. Rhodes, 552 F.3d 624, 626 (7th
Cir. 2009). To the extent this condition might require Jurgens
to submit to plethysmograph testing—which is not men-
tioned in the condition—it involves too many contingencies
to make the issue ripe for review at this time. See id. at 628–
29 (holding that the defendant’s challenge to a similar condi-
tion was not ripe for review because it is “based on a num-
ber of contingencies,” including that the treatment program
9 The condition as a whole reads: “You shall participate in a sex offender
treatment program as deemed necessary by the U.S. Probation Office.
You shall pay for such services, if financially able, as directed by the U.S.
Probation Office. You will submit to physiological testing, including pol-
ygraph testing, which may be part of a sex offender treatment program
as directed by the U.S. Probation Office. You shall pay for such services,
if financially able, as directed by the U.S. Probation Office.”
10 Plethysmograph testing involves placing a device on a man’s penis in
order to measure his sexual response to various visual and auditory
stimuli. See United States v. Weber, 451 F.3d 552, 561–62 (9th Cir. 2006).
44 Nos. 14-1223, 14-2135 & 14-2482
may only require “polygragh testing alone, which is not un-
usual,” and/or “the development of science or the law may
render the [plethysmograph] testing irrelevant or even ille-
gal, or maybe the movement will be in a different direction
altogether”). If Jurgens ultimately is ordered to undergo ple-
thysmograph testing as part of a sex offender treatment pro-
gram on supervised release, he may petition the district
court to modify the condition if he then objects to it. See id. at
629.
As for polygraph testing, which is mentioned in the con-
dition (although as a contingency), Jurgens contends this
possibility infringes on his Fifth Amendment right to be free
from self-incrimination. Our earlier discussion related to
Jurgens’ prior Fifth Amendment challenge applies with
equal force here. A defendant on supervised release retains
the privilege to invoke his Fifth Amendment rights. On re-
mand, Jurgens may request that the sentencing judge in-
clude language indicating that this condition does not pre-
vent him from invoking the privilege against self-
incrimination, although we do not hold that such language
is required. Jurgens also contends that the condition gives
“the probation office 20 years of unlimited ability to test”
Jurgens with a polygraph. However, we read this condition
as delegating to probation the selection of the treatment pro-
vider; only the treatment provider is authorized to select the
type(s) and amount of testing. We encourage the sentencing
judge on remand to consider rewording the condition to
make this point clear. Cf. Siegel, 753 F.3d at 713 (addressing
issues with, and ambiguities in, a similarly worded condi-
tion).
Nos. 14-1223, 14-2135 & 14-2482 45
Jurgens also challenges the condition requiring him to
participate in probation’s “Computer and Internet Monitor-
ing Program.” A similar condition was proposed in the
presentence report. See U.S.S.G. § 5D1.3(d)(7). The proposed
condition required Jurgens to install, “on any computer” he
used, filtering software that would “monitor/block access to
sexually oriented websites.” Jurgens objected because he
planned to use computers on his job and the term “sexually
oriented” was vague and overbroad. The sentencing judge
accommodated Jurgens’ objections by replacing the term
“sexually oriented websites” with “websites that contain il-
legal child, or illegal pornography,” and adding a clarifica-
tion that the condition applies only to “personal computers”
and not to any computer Jurgens needs to access through his
employment. 11 The judge explained at sentencing that the
11 The condition reads in full:
You shall participate with the U.S. Probation Office’s
Computer and Internet Monitoring Program during
your term of supervision. This shall apply to any per-
sonal computers that you have, not to any computers
that you need to access through your employment. The
monitoring program will start as soon as possible after
your supervision term begins. You shall sign the rules of
the Computer and Internet Monitoring Program and
comply with the conditions of this program. During this
time, you shall install filtering software on any computer
you possess or use which will monitor and block access
to any websites that contain illegal child, or illegal por-
nography. You shall allow the U.S. Probation Officer
and Office unannounced access to any computer you
possess or use, other than that you use through your
employment, to verify that the filtering software is func-
46 Nos. 14-1223, 14-2135 & 14-2482
condition was necessary to help ensure compliance with the
other conditions of supervised release.
Jurgens contends that the judge’s findings were inade-
quate to support this condition. We disagree. Jurgens’ use of
a computer facilitated his offense, and the sentencing judge
reasonably found that the monitoring program will “ensure
compliance” with the other conditions, most notably the
condition prohibiting Jurgens from receiving, transmitting,
or viewing illegal pornography. The deterrent effect of filter-
ing software—and unannounced checks to determine the
software remains functional—is apparent. “[W]e try to take
careful note of context and the practical realities of a sentenc-
ing hearing. District judges need not belabor the obvious.
The judge need not be explicit where ‘anyone acquainted
with the facts would have known without being told why
the judge had not accepted the argument’ ….” United States
v. Gary, 613 F.3d 706, 709 (7th Cir. 2010) (quoting United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).
Moreover, we endorse the sentencing judge’s efforts to re-
spond to the objections Jurgens made at sentencing. We find
that the modified condition was adequately supported by
the sentencing judge.
Jurgens also argues that this condition violates his Fourth
Amendment rights because it permits the probation officer
unlimited, unannounced access to Jurgens’ personal com-
puter(s) “to verify that the [child pornography] filtering
software is functional.” Jurgens characterizes this condition
tional. You shall pay of [sic] the cost of this software, if
financially able.
Nos. 14-1223, 14-2135 & 14-2482 47
as allowing “warrantless, suspicionless, nighttime searches
of Mr. Jurgens’ home to occur for the next 20 years.” While
the possibility that a probation officer may knock on
Jurgens’ door at 3:00 a.m. seeking to verify that the filtering
software is functional is troubling, cf. Thompson, 777 F.3d at
380, this condition is narrower than the home-visit condition
discussed earlier. 12 Indeed, if Jurgens’ personal computer is
a laptop computer, presumably he may comply with this
condition by bringing the computer to the probation officer
at Jurgens’ door or elsewhere, and the officer would not
need to enter Jurgens’ residence. We find that this condition
does not violate Jurgens’ Fourth Amendment rights.
This issue highlights the dissonance between defense
counsel’s and government counsel’s respective views of
probation officers. Defense counsel appears to view the typi-
cal probation officer as Inspector Javert, 13 obsessively en-
12 Likewise, this condition is significantly narrower than the condition at
issue in the primary case relied upon by Jurgens in his reply, United
States v. Malenya, 736 F.3d 554 (D.C. Cir. 2013). In Malenya, the court va-
cated a condition which provided that the defendant “shall not possess
or use a computer or have access to any on-line service without the prior
approval of the United States Probation Office ... and [shall] allow instal-
lation of a computer and Internet-monitoring program.” Id. at 560. The
court vacated this condition because “the record contains no evidence …
that Malenya indulged in adult or child pornography” and “[a] ban on
computer and internet usage, qualified only by the possibility of proba-
tion office approval, is obviously a significant deprivation of liberty.” Id.
at 560–61. Not only is the computer monitoring condition in this case
significantly less restrictive than the condition at issue in Malenya, but
the monitoring condition in this case is closely tailored to Jurgens’ of-
fense, unlike in Malenya.
13 See Victor Hugo, Les Misérables (1862).
48 Nos. 14-1223, 14-2135 & 14-2482
gaged in a misguided and destructive pursuit of defendants.
Government counsel appears to view the typical probation
officer as Mr. Chips, 14 a kindly educator (or rehabilitator)
who disciplines only when absolutely necessary. This disso-
nance finds its root in a probation officer’s dual function: “to
guide the [defendant] into constructive development” and to
prevent “behavior that is deemed dangerous to the restora-
tion of the individual into normal society.” Morrissey v.
Brewer, 408 U.S. 471, 478 (1972). While the balance a particu-
lar probation officer strikes between supervision and en-
forcement may vary, we think it remains true that the ongo-
ing supervisory relationship of a probation officer to a de-
fendant “is not, or at least not entirely, adversarial.” Griffin v.
Wisconsin, 483 U.S. 868, 879 (1987). It is inherent in this sys-
tem that conditions allow probation officers a degree of dis-
cretion in performing their difficult job. Of course, we cannot
allow conditions to be worded in such a way as to endow
probation officers with “essentially unlimited discretion.”
Thompson, 777 F.3d at 382. But at some point, we must “fairly
presume [the defendant]’s probation officer will apply the
conditions in a reasonable manner.” United States v. Smith,
606 F.3d 1270, 1283 (10th Cir. 2010). And if a particular pro-
bation officer exercises his or her discretion in an unreason-
able manner, this exercise will be subject to review by the
district court.
Finally, Jurgens argues that the provision in each treat-
ment/monitoring condition requiring him to pay “if finan-
cially able” should “have stated that Mr. Jurgens’ inability to
14 See James Hilton, Goodbye Mr. Chips (1934).
Nos. 14-1223, 14-2135 & 14-2482 49
pay could not be a basis for revocation.” We think it is ap-
parent from each condition that Jurgens’ supervised release
may not be revoked for not paying the costs of treatment or
monitoring if he is not financially able to pay. Cf. Baker, 755
F.3d at 529 (“A defendant may not be recommitted to prison
‘for mere inability to pay’….” (quoting Siegel, 753 F.3d at
714)). Indeed, we recently referred to the use of the phrase,
“if financially able,” as a “best practice for district courts to
follow” in crafting conditions of supervised release. Cary,
775 F.3d at 928–29.
At Kappes’ sentencing, the judge imposed special condi-
tions requiring Kappes to participate in sex-offender treat-
ment and probation’s Computer and Internet Monitoring
Program, and requiring him to pay for the treatment and fil-
tering software “if financially able.” Kappes challenges the
pay-if-able language in the treatment condition, contending
that there is no statutory authority for a court to require a
defendant to pay for treatment programs. 15 Kappes over-
looks 18 U.S.C. § 3672, which authorizes a court to order re-
payment by the recipient of treatment “services, training, or
guidance,” and 18 U.S.C. § 3583(d), which authorizes a court
to impose “any other condition it considers appropriate.” See
Cary, 775 F.3d at 928 (holding that a district court is empow-
ered to impose payment conditions pursuant to § 3672 and §
3585(d)). To the extent the sentencing judge failed to make
adequate findings to support the payment portion of the
15 Kappes also challenges the pay-if-able language in special condition
one, which prohibits him from excessive use of alcohol and use of mood-
altering substances and requires him to undergo substance-abuse treat-
ment. We have already vacated this condition.
50 Nos. 14-1223, 14-2135 & 14-2482
challenged condition, we find this error to be harmless. It is
self-evident that the pay-if-able language will incentivize de-
fendants to succeed with their rehabilitative efforts, see Unit-
ed States v. Williams, 739 F.3d 1064, 1066–67 (7th Cir. 2014),
and “reimburse [the Administrative Office of the U.S. Courts
for] the appropriations obligated and disbursed in payment
for such services, training, or guidance.” 18 U.S.C. § 3672.
Finally, although not challenged by Kappes, we encourage
Kappes’ sentencing judge on remand to consider modifying
the language of the computer-monitoring condition in the
same manner as was done by the sentencing judge in
Jurgens’ case—i.e., in the absence of additional findings on
remand, the filtering software should only block websites
containing illegal pornography (e.g., child pornography),
rather than all “sexually oriented websites.” Cf. Cary, 775
F.3d at 926–27 (indicating that any internet ban “must be de-
fined to some degree of precision”).
c. No-Contact Condition
Both Kappes and Jurgens challenge a special condition
prohibiting contact with minors. In Quinn, we singled out a
term of supervised release prohibiting unapproved contact
with minors—including the defendant’s minor child, whom
defendant had never been accused of abusing—and stated
that “[p]utting the parent-child relationship under govern-
mental supervision for long periods … requires strong justi-
fication.” 698 F.3d at 652. After Quinn, we have vacated simi-
lar no-contact conditions due to a lack of adequate findings.
See Baker, 755 F.3d at 526–27; United States v. Poulin, 745 F.3d
796, 802 (7th Cir. 2014); Goodwin, 717 F.3d at 524.
In Kappes’ case, the judge adopted in toto the condition
recommended in the presentence report banning Kappes
Nos. 14-1223, 14-2135 & 14-2482 51
from contact with all minors except in the presence of an
adult approved by probation, in the course of normal com-
mercial business, or other cases of unintentional and inci-
dental contact. During the sentencing hearing, the judge re-
cited this condition without discussion. Were we to view this
portion of the transcript in isolation, the judge’s findings
would be inadequate to sustain such a condition, despite the
fact that—unlike the defendant in Quinn—Kappes has no
children and has not identified any extended family member
with minor children. However, we review the judge’s com-
ments at the entire sentencing hearing. Prior to listing the
conditions, the judge discussed the “much more disturbing
information here than just a desire to see young children
have sex with adults.” The judge said that “a lengthy period
of supervised release” is necessary because Kappes, while
working as a furniture deliveryman, stole “over 30 female
panties, many of which apparently belonged to children,”
and kept the collection for 20 years. The judge told Kappes
that the length of time he kept the collection was “concern-
ing,” and “[m]ore disturbing” was Kappes’ surreptitious
photographing of children playing in a neighboring outdoor
pool for approximately ten years. The judge concluded that
the conditions of supervised release were necessary because
of “worry about any future crimes or possible acting out,
stealing panties, pictures of young girls next door.” We think
the sentencing judge’s explanation is sufficient to justify im-
posing upon Kappes an appropriately tailored no-contact con-
dition.
However, the no-contact condition actually imposed up-
on Kappes is somewhat overbroad. The condition prohibits
non-incidental “contact” with males as well as females un-
der 18, despite the fact that we are not aware of any evidence
52 Nos. 14-1223, 14-2135 & 14-2482
that Kappes is bisexual. See Thompson, 777 F.3d at 376 (“A[n]
… error was a condition of supervised release that Thomp-
son not have ‘any contact with persons under the age of
18….’ This can’t have been meant literally, since understood
literally it would include males under 18 as well as females,
though there is no suggestion that Thompson is bisexual.”).
Kappes contends that, “[a]lthough he has no children, if he
did (or if an extended family member does), his fundamental
right to familial association would be violated by a limitation
on contact with minors.” Given that Kappes was sentenced
to a 20-year term of imprisonment at the age of 47, we think
that any violation of his rights by this condition is too con-
tingent to be ripe for review at this time. See Rhodes, 552 F.3d
at 628–29. After Kappes is released from custody, if he or a
family member has minor children, he may petition the dis-
trict court to modify this condition. See id. at 629; see also 18
U.S.C. § 3583(e)(2).
In Jurgens’ case, the presentence report recommended a
special condition identical to the one imposed in Kappes’
case. Prior to sentencing, the judge ordered a psychosexual
evaluation, and the evaluator diagnosed Jurgens with pedo-
philia and recommended imposition of the same no-contact
provision. Jurgens objected that this proposed condition in-
fringed on his constitutional right to familial association be-
cause Jurgens has a nephew who is a minor. At sentencing,
the judge accommodated this objection by revising the rec-
ommended condition to prohibit contact with “non-related”
minors except in the presence of an adult approved by pro-
bation, in the course of normal commercial business, or other
cases of unintentional and incidental contact. The judge said
that the no-contact condition was “especially necessary in
[Jurgens’] case because the target age of most of your child
Nos. 14-1223, 14-2135 & 14-2482 53
pornography was … seven- to eight-year-olds and, further
… [Jurgens] made a statement that he ‘can’t do anything [to
minors] when they are not here.’” The judge said that
Jurgens’ statement was “troublesome enough, given the na-
ture of this offense, that I think it’s an appropriate condition
to impose in this case.” Although this is perhaps the mini-
mum of what might be sufficient to justify a no-contact pro-
vision in a possession-only child-pornography case, we
think the judge’s explanation is sufficient.
Despite the judge’s modification of the condition in re-
sponse to Jurgens’ objection, the no-contact provision actual-
ly imposed in Jurgens’ case is overbroad. The condition pro-
hibits non-incidental “contact” with males as well as females
under 18, despite the lack of evidence that Jurgens is bisexu-
al. See Thompson, 777 F.3d at 376. Likewise, the judge’s
statements at sentencing suggest that Jurgens is attracted to
seven- and eight-year-olds, making a restriction on contact
with 17-year-olds seem unsupported by the judge’s findings.
Because this case must be remanded for other reasons, the
sentencing judge should address the overbreadth of this
condition on remand.
d. Search Condition
The final special condition imposed upon Jurgens re-
quires him to “submit to the search of [his] person, automo-
bile, and property under [his] control” when “there is rea-
sonable suspicion to believe that [he is] in violation of a con-
dition of supervised release,” subjects his computers and re-
lated devices to “periodic unannounced examinations,” and
allows “retrieval and copying of all data ... to ensure compli-
ance with this condition, and/or removal of such equipment
for the purpose of conducting a more thorough examina-
54 Nos. 14-1223, 14-2135 & 14-2482
tion.” 16 Jurgens concedes that because he failed to object to
this condition—which was proposed in the presentence re-
port—it now is subject to plain error review. Jurgens none-
theless contends that the condition must be vacated because
the sentencing judge failed to support it with adequate find-
ings, the condition infringes on his Fourth Amendment right
to keep his property free from unreasonable searches and
seizures, and the condition is an excessive deprivation of his
Fifth Amendment right to property.
The sentencing judge stated that this condition was being
imposed “to ensure compliance with these conditions.”
Combined with the judge’s other comments at sentencing
which we have summarized above, we think this is sufficient
to support this condition. And even if the judge did not say
enough, this would not be the type of error which affects
Jurgens’ substantial rights, see Olano, 507 U.S. at 735, because
the consistency of this condition with the sentencing factors
and the other conditions “is plain, given the nature of [the
16 The condition states in full:
If there is reasonable suspicion to believe that you are in
violation of a condition of supervised release, you shall
submit to the search of your person, automobile, and
property under your control by the U.S. Probation Of-
fice. You shall also allow the U.S. Probation Office to
conduct periodic unannounced examinations of your
computer equipment, Internet capable devices, similar
electronic devices, related computer peripherals, which
may include retrieval and copying of all data from your
device to ensure compliance with this condition, and/or
removal of such equipment for the purpose of conduct-
ing a more thorough inspection.
Nos. 14-1223, 14-2135 & 14-2482 55
defendant’s] crime,” see Siegel, 753 F.3d at 713. This condition
clearly relates to the goals of rehabilitation, deterrence and
protection of the public, and is reasonably related to the na-
ture and circumstances of Jurgens’ computer-facilitated of-
fense. Compare Goodwin, 717 F.3d at 523 (vacating a similar
condition because there was no “indication in the record that
Goodwin has ever used a computer to commit any crime”).
We next turn to Jurgens’ challenge to the merits of the
condition, which authorizes searches when “there is reason-
able suspicion to believe that [Jurgens is] in violation of a
condition of supervised release.” Jurgens highlights the
standard condition requiring him to follow his probation of-
ficer’s instructions, and says when that standard condition is
combined with the search condition, “the mind runneth over
when imagining how many ways an unheeded instruction
provides a springboard for searching Mr. Jurgens’s person,
automobile and property.” Jurgens posits that, “[i]f he com-
mits a traffic infraction,” a Javert-like probation officer may
use the infraction to confiscate Jurgens’ computer pursuant
to this condition, and “[m]aybe the deprivation is just for a
day, but maybe that was the day that Mr. Jurgens was sup-
posed to make a presentation for work and cannot do so be-
cause materials for the presentation are on the computer the
government took.” Jurgens points to no case in which any-
thing remotely similar has happened to a defendant on su-
pervised release, despite the fact that this search condition is
common. We do not find that Jurgens’ hypothetical conjec-
ture is sufficient to establish plain error. Cf. United States v.
Westerfield, 714 F.3d 480, 489 (7th Cir. 2013) (“This hypothet-
ical conjecture is baseless, and certainly does not establish
plain error.”).
56 Nos. 14-1223, 14-2135 & 14-2482
In the context of probation, the Supreme Court has held
that the Fourth Amendment balance of “the degree to which
[a search of a probationer’s residence] intrudes upon an in-
dividual’s privacy and, … the degree to which it is needed
for the promotion of legitimate governmental interests,” re-
quires “no more than reasonable suspicion to conduct a
search of th[e] probationer’s house.” United States v. Knights,
534 U.S. 112, 119, 121 (2001) (quotation omitted); cf. United
States v. Montiero, 270 F.3d 465, 469, 473 (7th Cir. 2001) (up-
holding, pre-Knights, a suspicionless-search supervised-
release condition because the condition was necessary to
“curb the sort of criminal activity in which a defendant had a
history of engaging,” but vacating the condition’s suspicion-
less seizure authorization as vague and overbroad, and re-
manding to the district court “to craft more precisely the sei-
zure authority of the special condition”). Post-Knights, the
First Circuit has upheld a supervised-release condition ma-
terially the same as the computer-search-and-removal condi-
tion challenged by Jurgens. See United States v. Stergios, 659
F.3d 127, 131 n.6, 134 (1st Cir. 2011). The court noted that, “if
the district court could not mandate compliance with the
rules of the treatment program, the required participation
would be ineffectual.” Id. at 134 (quotation and alteration
omitted); but see United States v. Lifshitz, 369 F.3d 173, 193 (2d
Cir. 2004) (vacating, under de novo review, a similar condi-
tion on the basis that “[t]he scope of the computer monitor-
ing condition as it stands may … be overbroad,” and order-
ing “the district court to evaluate the privacy implications of
the proposed computer monitoring techniques as well as
their efficacy as compared with computer filtering”).
Given the legal authority cited above, we cannot find that
the district court plainly erred in imposing the search condi-
Nos. 14-1223, 14-2135 & 14-2482 57
tion upon Jurgens. See Olano, 507 U.S. at 734 (“At a mini-
mum, court of appeals cannot correct [a plain] error … un-
less the error is clear under current law.”). We do note that
both the defense and the government assume that, as stated
in the government’s brief, “[t]he removal provision requires
Mr. Jurgens to release his computer for more thorough in-
spection by his probation officer only if there is reasonable
suspicion that Mr. Jurgens has violated the terms of his re-
lease.” However, the language of the condition is not as clear
as it could be on this point. On remand, the sentencing judge
should consider rewording the condition to clarify that the
“periodic unannounced examinations of [Jurgens’] computer
equipment … which may include … removal of such
equipment for the purpose of conducting a more thorough
inspection” may only be done if the probation officer has
reasonable suspicion to believe that Jurgens is in violation of
a condition of supervised release. See 18 U.S.C. § 3583(d) (au-
thorizing a supervised-release condition requiring a sex of-
fender to submit to search “by any law enforcement or pro-
bation officer with reasonable suspicion concerning a violation
of a condition of supervised release or unlawful conduct by
the person” (emphasis added)); U.S.S.G. § 5D1.3(d)(7)(C)
(recommending the same special condition for sex offend-
ers); cf. Farmer, 755 F.3d at 854 (vacating a search condition
that required “no suspicion, reasonable or otherwise, to trig-
ger a search”). The identical condition was imposed upon
Kappes, and we similarly encourage Kappes’ sentencing
judge to consider rewording the condition.
V. Pronounce All Conditions
The fourth sentencing principle that we address in the
context of imposing conditions of supervised release is the
58 Nos. 14-1223, 14-2135 & 14-2482
need to orally pronounce all conditions from the bench.
“[W]hen there is a conflict between an oral and later written
sentence, the oral judgment pronounced from the bench con-
trols.” United States v. Johnson, 765 F.3d 702, 710–11 (7th Cir.
2014). However, if “[t]he specifications in the written judg-
ment clarify the oral pronouncement” and the written provi-
sions “are not inconsistent with an unambiguous [oral] pro-
vision,” then the differing written provisions will not be va-
cated. Baker, 755 F.3d at 529 n.2. The parameters of this rule
can be seen by comparing examples of how we have applied
it. Compare Johnson, 765 F.3d at 711 (“[T]he district court un-
ambiguously announced several specific conditions of su-
pervised release at Johnson’s sentencing hearing and did not
include any statement as to whether other standard condi-
tions would apply…. [A]ny new conditions imposed in the
later written judgment are inconsistent with the court’s oral
order and must be vacated.”), and United States v. Alburay,
415 F.3d 782, 788 (7th Cir. 2005) (“The written version con-
tradicts the oral version in that the oral version does not or-
der ‘immediate deportation’ in any shape or form.”), with
Baker, 755 F.3d at 529 n.2 (“Any argument that the payment
conditions should be vacated because the written judgment,
explicitly stating the entity or official who can direct Baker to
pay, is inconsistent with the oral pronouncement, which on-
ly says ‘as directed’ without specifying by whom, is unavail-
ing.”), and United States v. Bonanno, 146 F.3d 502, 511–12 (7th
Cir. 1998) (holding that when the district court orally im-
posed “all the standard conditions of supervised release
adopted by this Court” but did not enumerate those condi-
tions until the written order, the written order was merely a
clarification of the vague oral pronouncement and the enu-
merated standard conditions would not be vacated). “We
Nos. 14-1223, 14-2135 & 14-2482 59
review a claim of an inconsistency between the oral and
written judgments de novo, comparing the sentencing tran-
script with the written judgment to determine whether an
error occurred as a matter of law.” Johnson, 765 F.3d at 710.
Kappes contends that the sentencing judge violated this
rule three times, and requests that the allegedly inconsistent
provisions in the written judgment be vacated. First, during
the sentencing hearing, the judge orally stated that Kappes
will have to submit to “psychological testing, including poly-
graph testing, which may be part of a sex offender treatment
program.” The written judgment states that Kappes will
have to submit to “physiological testing, including polygraph
testing, which may be part of a sex offender treatment pro-
gram.” Given that, strictly speaking, polygraph testing is a
physiological, rather than psychological, test, there was an
ambiguity in the judge’s oral sentence. Accordingly, we may
look to the written judgment to help determine the intended
sentence. See Bonanno, 146 F.3d at 511. After looking to the
written judgment, it is clear that the sentencing judge simply
misspoke when he said “psychological testing,” and intend-
ed the condition to impose “physiological testing,” as stated
in the judgment (as well as in the unobjected-to presentence
report). Accordingly, this provision is not vacated for violat-
ing the rule that conditions must be orally pronounced.
Next, the sentencing judge orally required Kappes to “al-
low Probation to conduct periodic, unannounced examina-
tion of your computer, Internet capable devices, electronic
devices, or related computer peripherals; and they may re-
trieve or copy all data from your devices to ensure compli-
ance.” The written judgment adds the requirement that
Kappes allow the “removal of such equipment for the pur-
60 Nos. 14-1223, 14-2135 & 14-2482
pose of conducting a more thorough inspection.” Here, the
oral pronouncement was unambiguous. If “the oral version
is unambiguous, there is no need to look beyond the oral
version for any clarification from the written version. The
written version is thus a nullity, not requiring further dis-
cussion.” Alburay, 415 F.3d at 788 (citation omitted). There-
fore, the inconsistent provision in the written judgment, al-
lowing the removal of Kappes’ computer equipment, is va-
cated. However, this may be a hollow victory for Kappes
since we are remanding for resentencing on other grounds.
If, after hearing from the parties and otherwise complying
with the appropriate sentencing procedures, the judge wish-
es to include the computer-removal provision in special
condition number six, he may do so during resentencing.
Kappes’ third challenge involves the oral omission of the
written judgment’s ban on “paraphernalia related to any
controlled substance or mood altering substance,” which
appears in special condition number one. As we have al-
ready vacated this special condition for other reasons (due to
its ban on “excessive” use of alcohol and possession and use
of any “mood altering substance”), we decline to consider
this additional challenge to the condition.
VI. Mitigation Argument
Apart from his challenges to the conditions of supervised
release, Crisp contends that the sentencing judge erred by
failing to consider or comment upon one of his principal ar-
guments in mitigation, namely, that he cooperated with law
enforcement despite the lack of a government motion for a
reduced sentence. See United States v. Leiskunas, 656 F.3d 732,
737 (7th Cir. 2011) (“A district court may consider a defend-
ant’s cooperation with the government as a basis for a re-
Nos. 14-1223, 14-2135 & 14-2482 61
duced sentence, even if the government has not made a
[U.S.S.G.] § 5K1.1 or [Federal] Rule [of Criminal Procedure]
35 motion.”).
We review de novo whether a judge followed proper pro-
cedures in sentencing, including whether the judge ade-
quately explained his or her chosen sentence. United States v.
Davis, 764 F.3d 690, 694 (7th Cir. 2014). “A sentencing judge
must address a defendant’s principal arguments in mitiga-
tion when those arguments have recognized legal merit.” Id.;
see Cunningham, 429 F.3d at 679. 17 The judge, however, “need
17 “[S]ince 2005 we have decided nearly 200 cases presenting questions
under the Cunningham duty to explain the reasons for rejecting principal
arguments in mitigation.” United States v. Donelli, 747 F.3d 936, 941 (7th
Cir. 2014). In an effort to address this recurring issue, we offered a sug-
gestion to sentencing judges in United States v. Garcia-Segura, 717 F.3d 566(7th Cir.), cert. denied, 134 S. Ct. 667 (2013), which we repeat here:
In order to ensure that defendants feel that they have
had such arguments in mitigation addressed by the
court and to aid appellate review, after imposing sen-
tence but before advising the defendant of his right to
appeal, we encourage sentencing courts to inquire of de-
fense counsel whether they are satisfied that the court
has addressed their main arguments in mitigation. If the
response is in the affirmative, a later challenge for failure
to address a principal mitigation argument under the
reasoning of Cunningham would be considered waived.
If not, the trial court would have the opportunity to clar-
ify whether it determined that the argument was so
weak as not to merit discussion, lacked a factual basis, or
has rejected the argument and provide a reason why. An
affirmative answer, however, would not waive an ar-
gument as to the merits or reasonableness of the court’s
treatment of the issue.
62 Nos. 14-1223, 14-2135 & 14-2482
not address arguments that have no apparent merit, and
need not spend time addressing an argument if ‘anyone ac-
quainted with the facts would have known without being
told why the judge had not accepted the argument.’” United
States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014) (quoting
Cunningham, 429 F.3d at 679). “The explanation need not be
exhaustive, but it must be sufficient to satisfy this court that
the sentencing judge has given meaningful consideration to
the section 3553(a) factors and the parties’ arguments in de-
termining how long the defendant’s sentence should be. This
will entail some discussion of any significant argument the
defendant has made with respect to his characteristics that
might bear on the length of the sentence.” United States v.
Schmitz, 717 F.3d 536, 541 (7th Cir. 2013) (citations omitted).
“The amount of explanation needed in any particular case
depends on the circumstances, and less explanation is typi-
cally needed when a district court sentences within an advi-
sory guidelines range.” United States v. Curby, 595 F.3d 794,
797 (7th Cir. 2010) (quotation and citations omitted).
At sentencing, defense counsel said there was no motion
to deviate from career offender status because “there was a
cooperation agreement that was signed,” and “a proffer was
conducted,” and “there may have been a 5K1.1 motion if Mr.
Crisp had entered into a cooperation plea agreement, which
he elected not to do, to preserve his rights to appeal and the
other things that would have been waived under the coop-
eration plea agreement.” The judge responded: “So what
you’re saying to me is: There may have been an attempt at
Id. at 569 (quotation and citation omitted).
Nos. 14-1223, 14-2135 & 14-2482 63
cooperation, or he may actually have taken the first step to-
wards it. But, in the end, no cooperation agreement was
signed and incorporated into a plea agreement [and] we
ended up with an open plea?” Defense counsel said the
judge was “correct” and explained, “I would say that we
went all the way through the entire procedure up to the
point where he would have entered into a cooperation plea
agreement, a written agreement, which was not actually per-
formed.” The judge then outlined the facts of the case and
commented: “So while there isn’t a cooperation agreement
here, there certainly is an exceptional early acceptance of re-
sponsibility by his being Mirandized, waiving his constitu-
tional rights, telling [agents], ‘Yes, you got me, and this is
what I’ve been doing.’ So no obstruction of justice, resisting
arrest, a cooperation in the execution of the search warrant,
and admissions took place immediately.”
Later in the hearing, defense counsel made several miti-
gating arguments, including Crisp’s family history, his drug
addiction, his status as a “a neighborhood level dealer” ra-
ther than a “drug kingpin,” the lack of weapons in his crimi-
nal history, his effort to support his daughter, his conduct
compared to that of most career offenders, and his sentenc-
ing range had he not been a career offender. Defense counsel
then argued: “[H]e cooperated right away. The second he
was arrested he said, ‘You got me. I admit it. I waive my Mi-
randa. I confess.’ He was pled out within three months after
the indictment came down. And … between the indictment
and the actual change of plea, he did cooperate. I sat in the
Ford County Jail basement for three and a half hours with
agents while he regaled them with all the information he
could possibly give them.” Defense counsel said that, alt-
hough the Government did not make a substantial assistance
64 Nos. 14-1223, 14-2135 & 14-2482
motion pursuant to U.S.S.G. § 5K1.1, “the Court can still
consider the timeliness of the cooperation, the fact that he
did render a proffer that was lengthy, that even though the
government doesn’t have to mention it because he didn’t
comply with the rest of that cooperation agreement by enter-
ing into that binding plea, he still tried his best; and he did
accept responsibility in a very, very quick manner.”
The judge then discussed Crisp’s lengthy criminal history
(35 arrests and 23 convictions, including four drug felonies),
and said that a sentence of the mandatory minimum of 10
years (as suggested by defense counsel) “would depreciate
the seriousness of his history of crime.” The judge said that
he would sentence Crisp below the guidelines imprisonment
range (262 to 327 months), because the judge would “take
into consideration the fact that maybe he has rehabilitative
potential by his allocution today; and by the time he was ar-
rested, he gave it up quickly. He admitted it. So I think the
exceptional acceptance of responsibility here immediately
shows that there is an opportunity of hope for rehabilita-
tion…. So how far do I depart from the career offender
guidelines? I will depart 22 months to 240 months.”
Given the judge’s below-guidelines sentence, and
“[p]aying close attention to the context and practical reali-
ties,” Castaldi, 743 F.3d at 595–96, we find that the judge did
not err by failing to mention Crisp’s proffer to law enforce-
ment agents when the judge was discussing the § 3553(a)
factors. During sentencing, each time defense counsel raised
the subject of cooperation, counsel mentioned it in conjunc-
tion with Crisp’s quick acceptance of responsibility. The dis-
trict court explicitly considered and credited Crisp’s “excep-
tional acceptance of responsibility.” Although the judge did
Nos. 14-1223, 14-2135 & 14-2482 65
not go on to discuss Crisp’s proffer specifically, the judge
considered the mitigation argument in the same context as it
was argued by counsel—acceptance of responsibility. And
the judge’s earlier discussion with counsel shows that the
judge recognized the proffer and understood it to be “the
first step” toward a cooperation plea agreement. In this cir-
cumstance, we are satisfied that the judge, “even if implicitly
and imprecisely,” considered Crisp’s principal arguments in
mitigation. United States v. Spiller, 732 F.3d 767, 769 (7th Cir.
2013) (“[A]s long as the sentencing court considers the ar-
guments made in mitigation, even if implicitly and impre-
cisely, the sentence imposed will be found reasonable.”
(quotation omitted)); see also United States v. Poetz, 582 F.3d
835, 839 (7th Cir. 2009) (“[I]t is apparent from this record that
the judge fully understood [the defendant’s] argument on
this point and implicitly considered ... it in imposing a leni-
ent, below-guidelines term of imprisonment.”).
Moreover, defense counsel did not give the judge any
meaningful specifics about Crisp’s proffer—such as whether
Crisp identified suppliers, customers, the location of contra-
band, or any other specifics about his drug deals. Even de-
fense counsel refrained from describing the single session
with law enforcement agents as “substantial assistance,” and
she never indicated that Crisp’s “regaling” the agents with
information prompted, advanced, or assisted any investiga-
tion or prosecution. Given our conclusion that the judge ad-
equately considered Crisp’s arguments, we need not deter-
mine whether this argument was “so weak as not to merit
discussion.” Cunningham, 429 F.3d at 679. It is enough to say
that a weaker argument, lacking specific factual support,
does not merit as much discussion as a stronger one. See Da-
vis, 764 F.3d at 694 (“[T]he amount of explanation required
66 Nos. 14-1223, 14-2135 & 14-2482
from the district court varies with the circumstances. A brief
explanation can certainly suffice.” (quotation and citation
omitted)).
VII. Relief
Our final order of business is deciding upon the relief to
issue in each case. In prior cases in which we found error in
the supervised release portion of the sentence, but no error
in the custodial portion, we have sometimes remanded for
resentencing of the supervised release issue only, and some-
times simply remanded “for resentencing consistent with
this opinion.” 18 Recently, we remanded for an entire resen-
18 Compare Siegel, 753 F.3d at 717 (“So the prison sentences in both our
cases stand, but the cases must be remanded for reconsideration of the
conditions of supervised release that we have determined to be inappro-
priate, inadequately defined, or imposed without the sentencing judge’s
having justified them by reference to the sentencing factors in 18 U.S.C.
§ 3553(a).”), and Goodwin, 717 F.3d at 526 (“[W]e affirm Goodwin’s con-
viction, vacate the supervised release portion of his sentence, and re-
mand to the district court for resentencing consistent with this opinion.
The resentencing shall be limited to a reassessment of the length of
Goodwin’s supervised release and any special conditions imposed dur-
ing this period.”), and Quinn, 698 F.3d at 653 (“The term of supervised
release is vacated, and the case is remanded for resentencing on that is-
sue only.”), with United States v. Sewell, --- F.3d ----, No. 14-1384, 2015 WL
1087750, at *12 (7th Cir. Mar. 13, 2015) (“We vacate … each of Sewell’s
conditions of supervised release. We vacate each condition because re-
consideration of some conditions may impact the imposition of others.
The sentence is affirmed in every other respect. The case is remanded to
the district court for proceedings consistent with this opinion.”), and
Baker, 755 F.3d at 529 (“We vacate Baker’s supervised release term, spe-
cial 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
Nos. 14-1223, 14-2135 & 14-2482 67
tencing “because reconsideration of those [vacated] condi-
tions may conceivably induce one or more of the judges to
alter the prison sentence that he imposed.” Thompson, 777
F.3d at 382.
We hesitate to require a complete resentencing in the cas-
es before us, especially in Crisp’s case, as only a small num-
ber of his conditions have been affected by this opinion. But
because the custodial and supervised release portions of a
sentence serve somewhat, though not entirely, overlapping
purposes, there might properly be an interplay between
prison time and the term and conditions of supervised re-
lease. 19 See Albertson, 645 F.3d at 198. If certain supervised
release conditions are vacated, the balance struck by the sen-
tencing judge might be disrupted to a degree where the
judge would wish to alter the prison term and/or other con-
ditions to ensure that the purposes of deterrence, rehabilita-
tion, and protecting the public are appropriately furthered
by the overall sentence. Accordingly, as we did in Thompson,
we vacate the entire sentences and remand for a complete
resentencing.
After this long march through these defendants’ chal-
lenges and our recent supervised-release jurisprudence, a
sentencing judge might be frustrated with the task of navi-
imposed.”), and Shannon, 743 F.3d at 503 (“We vacate Special Condition
No. 10 of Shannon’s supervised release and remand for further proceed-
ings consistent with this opinion.”).
19 While an interplay may be proper, the prison term and supervised
release term should not be treated as interchangeable. See Johnson, 529
U.S. at 60.
68 Nos. 14-1223, 14-2135 & 14-2482
gating the maze of rules and principles that we—
interpreting the strictures of Congress—have outlined. A
sentencing judge might be tempted to conclude that the im-
position of discretionary conditions of supervised release is
more trouble than it is worth. And perhaps in certain cases,
only a small number of well-tailored discretionary condi-
tions may be all that is necessary to accomplish the purposes
of supervised release. A comparatively small number of
conditions might also make compliance easier on defendants
and supervision easier on understaffed probation depart-
ments. But no matter the number of conditions, so long as
they are appropriately tailored, adequately justified, and
orally pronounced after proper notice, they will be upheld.
Whether the system of supervised release is worth its human
and financial costs is a matter beyond our mandate and
competence. We trust that the supervised-release system
represents a worthwhile method of rehabilitating defend-
ants, deterring future crimes and protecting the public.
In all three cases, the judgments are REVERSED, and the
cases are REMANDED for resentencing.