United States v. Eric Spivey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2435
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC S. SPIVEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cr-0787 — Virginia M. Kendall, Judge.
____________________
ARGUED MAY 16, 2019 — DECIDED JUNE 7, 2019
____________________
Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. After the district court revoked Eric
Spivey’s supervised release, it sentenced him to 24 months in
custody. Spivey now argues the district court violated due
process because it sentenced him based on a nonexistent con-
dition of supervised release. We disagree and affirm.
2 No. 18-2435
I. Background
In September 2005, Spivey was convicted of predatory
criminal sexual assault in the Circuit Court of Cook County,
Illinois. This conviction required him to register under the Sex
Offender Registration Notification Act. In April 2014, Spivey
pleaded guilty in federal district court to one count of know-
ingly failing to register as a sex offender in violation of 18
U.S.C. § 2250(a). The district court sentenced him to 41
months in prison and a five-year term of supervised release.
Relevant to this appeal is Spivey’s supervised release condi-
tion that he truthfully answer his probation officer’s inquiries,
which the original judgment contained. For reasons unclear
in our record, the district court struck that condition and oth-
ers in an amended judgment issued about two weeks later.
Spivey began serving his term of supervised release in Oc-
tober 2016. Throughout that term, probation officers submit-
ted multiple special reports reflecting eighteen separate vio-
lations of Spivey’s conditions. From June 2017 until Spivey’s
final revocation hearing approximately one year later, the dis-
trict court conducted multiple rule to show cause hearings.
During these hearings, Spivey explained that because he was
homeless, he had challenges registering as a sex offender.
Spivey also told the court he could not fulfill his supervised
release conditions due to his work schedule, lack of funds,
and illnesses requiring hospitalization.
In March 2018, Spivey failed to appear before the district
court on three separate occasions. His counsel informed the
court that Spivey said he was in the hospital, but when Spivey
failed to appear at the third status hearing, counsel indicated
that he did not know his client’s whereabouts. The district
court then issued a bench warrant for Spivey’s arrest. Law
No. 18-2435 3
enforcement arrested Spivey on March 28, 2018, at his girl-
friend’s house, where she lived with her two young children.
The district court conducted Spivey’s final revocation and
sentencing hearing on June 14, 2018. The government called
two witnesses to testify. First, Spivey’s probation officer testi-
fied that he went to the Chicago Police Department’s Office
for Criminal Registration, where he found that Spivey had not
registered as a sex offender. The probation officer stated that
Spivey explained he did not register because he did not have
the money to complete the registration, and, that during the
winter months, he had to wait outside in the cold for hours to
register. Spivey’s probation officer, however, observed that
the registration office had a waiting room and that the Chi-
cago Police Department waives registration fees under certain
circumstances.
Further, the probation officer testified that Spivey missed
an October 2017 meeting with him claiming to be in the hos-
pital. After requesting Spivey’s medical documentation, the
officer discovered that Spivey had not been in the hospital on
the meeting date. The probation officer also testified that law
enforcement arrested Spivey at his girlfriend’s home where
he was living, which contradicted Spivey’s assertion that he
was homeless and sleeping on public transportation.
Next, the government called a senior inspector for the
United States Marshals Service who testified she arrested
Spivey on two occasions. The first time was in August 2017 at
Spivey’s sister’s home on a state charge of failing to register
as a sex offender. When arresting Spivey, his sister told the
inspector that Spivey was living with her. In addition, the in-
spector observed a 16- or 17-year-old living at his sister’s
home.
4 No. 18-2435
The inspector also arrested Spivey on March 28, 2018, pur-
suant to the district court’s warrant. She explained that she
knew Spivey would be at his girlfriend’s home because the
State of Illinois had issued a driver’s license to Spivey with
that address. The inspector talked to Spivey’s girlfriend at the
time of his arrest, and she explained that she had two chil-
dren, ages 8 and 10, living with her. Spivey’s girlfriend added
that she had been dating Spivey for about four months and
had no idea he was a sex offender.
At his revocation hearing, Spivey admitted that he had
failed to register as a sex offender amounting to four separate
violations, which were numbered Violations 1, 6, 10, and 14.
Based on evidence in the record, the district court also found
Spivey had violated three other supervised release condi-
tions, including another violation of failing to register as a sex
offender (Violation 18), unsupervised private contact with
minors at his sister’s home (Violation 9), and commission of a
state crime (Violation 8).
Violation 17, which Spivey calls the nonexistent super-
vised release condition, was listed in the probation officer’s
February 2018 special report. It required Spivey to answer his
probation officer’s inquiries truthfully. The district court
mentioned Violation 17 at the revocation hearing. It did not,
however, make a finding that Spivey committed Violation 17.
Instead, the court concluded that Spivey’s March 2018 arrest
at his girlfriend’s house where he was living with her two mi-
nor children established he had unsupervised private contact
with minors. In addressing the violation, the court said:
Court: And then Violation 17 is the most recent
arrest and him living with the two children, 8
and 10, with his girlfriend, correct?
No. 18-2435 5
Prosecutor: That’s correct.
Court: And I also find the evidence is sufficient
to support that conclusion.
At sentencing, the district court calculated the advisory
sentencing range under the Chapter 7 Policy Statement as 21
to 27 months based on the supervised release violations that
were Grade B offenses and Spivey’s criminal history category
of VI. See U.S.S.G. § 7B1.1(a)(2). The court sentenced Spivey to
24 months in custody, which was the maximum sentence be-
cause his original offense was a Class C felony. See 18 U.S.C.
§ 3583(e)(3); United States v. Ford, 798 F.3d 655, 661 (7th Cir.
2015) (“Title 18 U.S.C. § 3583 limits the length of the prison
term a court may impose after it revokes a defendant’s super-
vised release.”). Spivey appealed.
II. Discussion
On appeal, Spivey argues the district court violated his
due process right to be sentenced on the basis of accurate in-
formation because the court relied on a violation of a non-ex-
istent condition of supervised release when imposing his sen-
tence, namely, the condition that he truthfully answer all in-
quires of his probation officer. Spivey did not object to this
alleged procedural error; therefore, we review the court’s sen-
tencing decision for plain error. United States v. Kopp, 922 F.3d
337, 341 (7th Cir. 2019). Under plain error review, we will re-
verse if Spivey demonstrates “(1) an error or defect, (2) the
error is clear or obvious and not subject to reasonable dispute,
(3) the error affected substantial rights, and (4) the error seri-
ously affects the fairness, integrity, or public reputation of ju-
dicial proceedings.” United States v. Freed, 921 F.3d 716, 720
(7th Cir. 2019).
6 No. 18-2435
To establish a Fifth Amendment due process violation,
Spivey “must show that inaccurate information was before
the court and that the court relied upon it.” United States v.
Pennington, 908 F.3d 234, 239 (7th Cir. 2018). A sentencing
court relies on inaccurate information if it gives specific con-
sideration to this information before imposing a sentence or
imposes the defendant’s sentence at least in part on the mis-
information. United States v. Tucker, 404 U.S. 443, 447 (1972);
United States v. Miller, 900 F.3d 509, 513 (7th Cir. 2018) (per
curiam). We have said this standard requires only that the
false information was part of the basis of a defendant’s sen-
tence. Id.
Spivey cannot meet this standard on plain-error review.
The district court held a lengthy hearing and made specific
findings on Spivey’s violations. As discussed, the district
court found Spivey had violated several conditions of super-
vised release, including five violations for failing to register
as a sex offender, one violation of unsupervised private con-
tact with minors, and one violation based on the commission
of a state crime.
As to the truthfulness condition, nothing in the record
shows that the district court considered the nonexistent con-
dition when imposing Spivey’s sentence. The district court
mentioned Violation 17. But the same sentence in the tran-
script reveals that the district court’s focus was on the fact that
Spivey had been “living with the two children, 8 and 10,”
which was the conduct evidenced when Spivey was most re-
cently arrested. When the district court did assess Spivey’s
truthfulness, it was appropriately in the course of reciting his
history and characteristics under 18 U.S.C. § 3553(a), not in
finding a release violation.
No. 18-2435 7
The fairest reading of the transcript, then, is that the dis-
trict court simply misspoke in referencing Violation 17. And
that conclusion does not change because the final judgment
reflects a finding of Violation 17. Our case law makes clear
that the oral pronouncement during sentencing controls.
United States v. Hudson, 908 F.3d 1083, 1085 (7th Cir. 2018).
Spivey has thus failed to establish that the court plainly erred.
Spivey makes a vague argument that the sentencing court
improperly emphasized his lies when imposing his sentence.
This argument falls flat because he does not challenge the
court’s underlying factual findings concerning his numerous
lies. See 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and con-
duct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of im-
posing an appropriate sentence.”). Spivey therefore cannot
establish that “the judge misapprehended the record with re-
spect to an aggravating factor that the judge considered im-
portant,” Miller, 900 F.3d at 514, as he argues.
Also under plain error review, Spivey must show the dis-
trict court’s alleged error affected his substantial rights.
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018).
In other words, Spivey must establish he was prejudiced by
the district court’s alleged error. Miller, 900 F.3d at 512-13.
Spivey cannot make this showing either. As discussed, the
court did not err because it found that Spivey violated the
condition pertaining to minors—not that he lied to his proba-
tion officer. Even if the district court had erred, Spivey cannot
show prejudice because at his revocation hearing, he admit-
ted to four Grade B supervised release violations for failing to
register as a sex offender. And only one Grade B violation
8 No. 18-2435
results in an advisory guideline range of 21 to 27 months with
Spivey’s criminal history category of VI—the same guideline
range the district court considered in the first instance. See
U.S.S.G. §§ 7B1.1(b), 7B1.4(a). Because the alleged error did
not affect Spivey’s advisory guideline range, there is no like-
lihood that he would have received a different sentence ab-
sent any such error. United States v. Kruger, 839 F.3d 572, 580
(7th Cir. 2016).
We AFFIRM the district court’s judgment.