United States v. William Romig , 933 F.3d 1004 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2685
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
William Cecil Romig, also known as Billy the Kid
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 15, 2019
Filed: August 13, 2019
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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
In 2001, William Cecil Romig pleaded guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. He was
sentenced to 264 months imprisonment, later reduced to 240 months, followed by 10
years of supervised release. Romig did not appeal. His subsequent motion for post-
conviction relief under 28 U.S.C. § 2255 did not challenge the conditions of
supervised release. In 2014, Romig filed a motion under 18 U.S.C. § 3583
challenging supervised release conditions. The district court denied relief,
concluding that a motion to modify the conditions was unripe, and that “a defendant
may challenge the illegality of conditions of supervised release only through a direct
appeal, § 2255 habeas corpus relief, or by bringing a motion to correct a sentence
under Federal Rule of Criminal Procedure 35.” United States v. Romig, 2014 WL
1048390, at *2 (D. Minn. March 18, 2014). We summarily affirmed.
Two months before his scheduled release from prison, Romig filed this
§ 3583(e)(2) motion1 to modify two special conditions of supervised release:
1) The defendant shall submit to periodic drug testing and participate
in substance abuse treatment and aftercare as directed by the probation
office.
2) The defendant shall not associate with any member, prospect, or
associate of the Hell’s Angels motorcycle gang, or any other gang.
The district court2 denied the motion, concluding that the legality of supervised
release conditions must be challenged by a motion under 28 U.S.C. § 2255 or Rule
35, and declining to exercise its discretion to modify the challenged conditions
because they are necessary and reasonably related to Romig’s offense, criminal
history, and offender characteristics. Romig appeals. Concluding the court did not
abuse its broad discretion whether to modify conditions of supervised release, we
affirm. See United States v. Davies, 380 F.3d 329, 332 (8th Cir. 2004) (standard of
review).
1
18 U.S.C. § 3583(e)(2) provides that the sentencing court “may modify,
reduce, or enlarge the conditions of supervised release, at any time prior to the
expiration or termination of the term of supervised release.”
2
The Honorable John R. Tunheim, Chief Judge of the United States District
Court for the District of Minnesota.
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1. The Substance Abuse Special Condition. Prior to his arrest and
conviction, Romig was a regular drug user. He has eight prior drug convictions, and
in the offense of conviction, Romig and five co-defendants were charged with
eighteen counts related to their roles in the drug conspiracy. Prior to incarceration for
this offense, Romig used a quarter of a gram of methamphetamine a day. He
nonetheless challenges the special condition mandating periodic drug testing and
participation in substance abuse treatment, arguing the condition is not based on
individualized findings because there is no evidence the risk of substance abuse has
not abated while he was in prison, and the sentencing court’s judgment form checked
a box stating the defendant “posed a low risk of future substance abuse.”3
It was not an abuse of discretion for the court to refuse to eliminate the drug
testing and substance abuse treatment requirements. Section 3553(a) directs courts
to consider the need “to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner.”
Considering Romig’s personal use of methamphetamine, which began at age 16, and
his criminal history of drug abuse convictions, it was not an abuse of discretion for
the court to keep the condition in place to prevent further drug abuse and to provide
for correctional treatment and rehabilitation.
2. The Hell’s Angels Special Condition. At the time of the offense of
conviction, Romig was a “prospect” for the Hell’s Angels motorcycle gang --
meaning he was not a full-fledged member but was in the process of joining. At least
one of his co-conspirators also claimed to be a Hell’s Angels prospect. Romig argues
that the special condition prohibiting him from associating with Hell’s Angels
members or prospects is unrelated to his offense and to his criminal and personal
3
In denying relief, the district court found this was a clerical error and issued
an amended sentencing judgment.
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history, and is unnecessary. He also argues that the condition is unconstitutionally
vague and infringes on his freedom of association.
Regarding the latter contention, in United States v. Thomas, 198 F.3d 1063,
1065 (8th Cir. 1999), we rejected on direct appeal a constitutional challenge to an
allegedly overbroad special condition prohibiting gang associations, concluding that
the question was premature because the condition might be irrelevant after the
defendant’s long prison sentence, and noting he could petition for modification prior
to release or raise the issue at a supervised release revocation hearing. Here, the issue
is not premature because Romig is about to be released. In United States v.
Washington, 893 F.3d 1076, 1081 (8th Cir. 2018), we recently struck down as
impermissibly vague a special condition prohibiting the defendant from being “in
company” with “all gangs.” But vagueness is not an issue here because the district
court struck the term “or any other gang” from the provision at issue.
Courts have upheld special conditions prohibiting defendants from associating
with groups “to prevent reversion into a former crime-inducing lifestyle.” United
States v. Ross, 476 F.3d 719, 722 (9th Cir.) (“neo-Nazi/white supremacist”
organizations), cert. denied, 551 U.S. 1127 (2007). Romig cites no contrary freedom-
of-association authority. Thus, Romig’s challenge to the constitutionality of this
special condition is unsupported. Nor does he contest the fact that he was a Hell’s
Angels prospect during the offense of conviction and committed other felonies with
Hell’s Angels members, the basis for the district court’s ruling that this condition was
necessary and reasonably related to the 18 U.S.C. § 3553(a) sentencing factors. This
ruling was not an abuse of the district court’s substantial discretion. In these
circumstances, we need not consider whether, as we suggested in Thomas, there are
specific constitutional challenges that should be an exception to the well-established
rule that illegality of a special condition is not a cognizable basis for § 3583(e)(2)
relief. See, e.g., United States v. Shipley, 825 F. Supp. 2d 984, 988-89 (S.D. Iowa
2011) (collecting cases).
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We conclude the district court was well within its discretion to deny Romig’s
motion to modify these two special conditions of supervised release because they are
reasonably related to the sentencing factors, involve no greater deprivation of liberty
than is reasonably necessary, and are consistent with the Sentencing Commission’s
pertinent policy statements. United States v. Sherwood, 850 F.3d 391, 394 (8th Cir.
2017). Accordingly, the order of the district court is affirmed.
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