United States v. Darick Hudson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1130
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARICK HUDSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00241-1 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED OCTOBER 31, 2018 — DECIDED NOVEMBER 14, 2018
____________________
Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Darick Hudson pleaded guilty to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). On appeal, Hudson challenges two aspects
of the written judgment entered by the district court, each
relating to conditions of his supervised release.
First, Hudson asserts a condition prohibiting “excessive
use of alcohol” must be clarified, as “excessive” is not defined
2 No. 18–1130
and therefore vague. As a matter of common practice, the
presentence investigation report (“PSR”) includes a number
of potential conditions of supervised release, with radio but-
tons the probation officer checks to indicate those recom-
mended to the district court at sentencing. Hudson’s PSR
included the following proposed condition: “ (7) you shall
refrain from  any or  excessive use of alcohol (defined as
having a blood alcohol concentration greater than 0.08%; or
 ).” During the sentencing hearing, the district court
reviewed that proposed condition, and Hudson’s attorney
confirmed he had no objection. Yet the corresponding condi-
tion in the written judgment entered two days later differed
from the PSR, failing to check the definitional box: “During
the period of supervised release: …  (7) you shall refrain
from  any or  excessive use of alcohol (defined as
 having a blood alcohol concentration greater than 0.08).”1
Our precedent holds that a condition of supervised release
prohibiting “excessive” alcohol use, without definition, is
impermissibly vague. United States v. Kappes, 782 F.3d 828, 849
(7th Cir. 2015); United States v. Thompson, 777 F.3d 368, 376 (7th
Cir. 2015); United States v. Siegel, 753 F.3d 705, 715 (7th Cir.
2014). This case presents an obvious scrivener’s error. At the
sentencing hearing, the district court reviewed with counsel
the PSR’s proposed condition prohibiting “excessive use of al-
cohol”—defined as a blood alcohol concentration greater than
0.08—and nothing in the record indicates the judge intended
to deviate from that definition. In this circumstance, we
1 As seen in these quotations, the final judgment form used by the
district court, unlike the PSR, includes a radio button before the phrase
“having a blood alcohol concentration greater than 0.08,” such that there
is no default definition of “excessive use of alcohol.”
No. 18–1130 3
simply order the judgment amended, without a full resen-
tencing. United States v. Clark, No. 18-1083, slip op. at 9 (7th
Cir. Oct. 18, 2018) (affirming with order to correct written
judgment to define “excessive use of alcohol”); United States
v. Smith, No. 16-3575, slip op. at 9–10 (7th Cir. Oct. 16, 2018)
(same); United States v. Givens, 875 F.3d 387, 391 (7th Cir. 2017)
(same).
Next, Hudson challenges a condition restricting his travel
during supervised release. At the sentencing hearing, the dis-
trict court stated, “Once Mr. Hudson is released from custody,
he will be directed to remain within the jurisdiction in which
he is being supervised, unless he is granted permission to
leave.” Hudson’s attorney requested the condition include
Indiana because that is where Hudson’s wife lives, expressing
some uncertainty himself about “what the districts are there.”
In response, the district court stated this condition would
“include the district where [Hudson’s] wife resides as well.”
But the written judgment simply states, “(14) you shall remain
within the jurisdiction where you are being supervised,
unless granted permission to leave by the court or a probation
officer.”
Hudson argues this travel restriction is impermissibly
vague, given its use of the undefined term “jurisdiction,” and
invalid to the extent it fails to expressly permit him to travel
to the district in which his wife resides. With respect to vague-
ness, we have described this same language limiting travel to
a “jurisdiction” as “poorly worded,” United States v. Ortiz, 817
F.3d 553, 555 (7th Cir. 2016), and “impermissibly vague.”
United States v. Dickson, 849 F.3d 686, 690 (7th Cir. 2017) (per
curiam). The better term to use in this standard condition is
“judicial district,” as it denotes geographical (as opposed to
4 No. 18–1130
jurisdictional) boundaries. Cf. U.S. SENTENCING GUIDELINES
MANUAL § 5D1.3(c)(3) (U.S. SENTENCING COMM’N Nov. 2018)
(“The defendant shall not knowingly leave the federal judicial
district where he or she is authorized to reside without first
getting permission from the court or the probation officer.”).
During the sentencing hearing, the district court stated that
the term “jurisdiction” in the condition refers to a judicial
district: “I directed that [Hudson] will be restricted to travel
in the district in which he is supervised. If he is released to the
Northern District of Illinois, that would be the Northern
District of Illinois.” Therefore, we order the term “judicial
district” be substituted for the word “jurisdiction” in the
written judgment.2
As for the failure to include the district in which Hudson’s
wife resides, this is another obvious technical oversight. The
district court orally granted Hudson’s request on this point,
and an oral sentence controls over a written one whenever the
two conflict. United States v. Johnson, 765 F.3d 702, 710–11 (7th
Cir. 2014). The written judgment must be amended to include
the judicial district where Hudson’s wife resides.
Before concluding, we note two other points. First, the
government’s argument that Hudson somehow waived his
objections to the above conditions is without merit. Waiver
2 We do not, however, accept Hudson’s argument in his reply brief
that this condition is vague simply because Hudson himself did not know
the geographic boundaries of the Northern District of Illinois. Such
boundaries are objectively verifiable. 28 U.S.C. § 93(a) (specifying the
Northern District of Illinois’s two divisions and the counties comprising
each). Arguing a defendant is personally ignorant of what a judgment
requires is different than demonstrating the judgment is objectively
vague.
No. 18–1130 5
requires an intentional relinquishment of a known right, and
“we are cautious about interpreting a defendant’s behavior as
intentional relinquishment.” United States v. Barnes, 883 F.3d
955, 957 (7th Cir. 2018). Here, both conditions in the written
judgment diverge from the district court’s oral sentence.
During the sentencing hearing, defense counsel reasonably
understood the district court as incorporating the definition
of “excessive use of alcohol” employed by the PSR. And Hud-
son’s lawyer objected to the travel restriction, prompting the
district court to amend it. Due to clerical errors, neither of
these qualifications made it into the written judgment, but
Hudson could not have predicted that at the time of sentenc-
ing. Smith, slip op. at 8; see also R.J. Corman Derailment Servs. v.
Int’l Union of Operating Eng’rs Local Union 150, 335 F.3d 643,
650 (7th Cir. 2003) (“[A] party cannot waive something that it
does not know is at issue.”).
Second, we remind future litigants of Rule 35(a) of the
Federal Rules of Criminal Procedure, which provides, “the
court may correct a sentence that resulted from arithmetical,
technical, or other clear error” within 14 days of sentencing.
This appeal might have been avoided had the written judg-
ment been reviewed promptly and the inconsistencies
brought to the district court’s attention.
Therefore, we REMAND WITH INSTRUCTIONS that the written
judgment be amended to include: (1) for purposes of discre-
tionary condition number 7 of Hudson’s supervised release, a
definition of “excessive use of alcohol” as having a blood
alcohol concentration greater than 0.08, and (2) for purposes
of discretionary condition number 14, the language, “you
shall remain within the judicial district where you are being
supervised and the judicial district in which your wife
6 No. 18–1130
resides, unless granted permission to leave by the court or a
probation officer.” Subject to those two corrections, we
AFFIRM the judgment of the district court in all other respects.