United States v. Christopher Anstice

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3171
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CHRISTOPHER ANSTICE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18‐cr‐50 — William M. Conley, Judge.
____________________
ARGUED MAY 22, 2019 — DECIDED JULY 19, 2019
____________________
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
SCUDDER, Circuit Judge. Christopher Anstice pleaded
guilty to conspiring to distribute methamphetamine and was
sentenced to ten years’ imprisonment and five years’ super‐
vised release. On appeal he challenges five conditions of su‐
pervised release appearing in the written judgment of convic‐
tion that the district court did not announce orally at sentenc‐
ing. Because three of these challenged conditions are
2 No. 18‐3171
mandated by federal statute and two are discretionary, we af‐
firm in part and otherwise remand.
I
Prior to sentencing the probation office prepared a Presen‐
tence Investigation Report, commonly referred to as a PSR.
The PSR recommend a five‐year term of supervised release
and included a proposed plan listing multiple conditions.
Five conditions appeared under the label “mandatory.” The
PSR also recommended a dozen or so discretionary condi‐
tions, categorized as either standard or special conditions.
Sentencing began with the district court confirming with
Anstice that he had received the PSR and reviewed it with his
counsel. After announcing Anstice’s ten‐year custodial sen‐
tence, the court turned to supervised release, explaining that
the law required a five‐year term. See 21 U.S.C. § 841(b). As
for the conditions of supervised release, the district judge im‐
posed all but one of the standard and special conditions, stat‐
ing: “I do adopt Condition Nos. 1 through 10 [the standard
conditions], and 12 through 14 [the special conditions], as pro‐
posed and justified in the presentence report.” At no point,
though, did the court address the five conditions the PSR cat‐
egorized as “mandatory.”
The ensuing written judgment, often shorthanded in fed‐
eral criminal practice as the “J&C” (Judgment and Commit‐
ment Order), included the five supervised release conditions
that appeared as “mandatory” in the PSR. The J&C included
these five conditions under the heading “Statutory Manda‐
tory Conditions.” The J&C separately listed the standard and
special conditions that the court had announced orally at sen‐
tencing.
No. 18‐3171 3
On appeal Anstice contends that the five conditions ap‐
pearing as “Statutory Mandatory Conditions” in the written
judgment were not orally imposed at sentencing and there‐
fore are not part of his sentence.
II
We start from the familiar rule that “[i]f an inconsistency
exists between an oral and the later written sentence, the sen‐
tence pronounced from the bench controls.” United States v.
Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (quoting United States
v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998)). And “any new
conditions imposed in the later written judgment are incon‐
sistent with the court’s oral order and must be vacated.”
United States v. Johnson, 765 F.3d 702, 711 (7th Cir. 2014). John‐
son provides a good example. The sentencing court there “un‐
ambiguously announced several specific conditions of super‐
vised release” and “did not include any statement as to
whether other standard conditions would apply,” leading us
to vacate the additional discretionary conditions that ap‐
peared only in the written judgment. Id.While our caselaw is clear that the oral sentence controls,
we have never addressed whether the district court’s failure
to announce conditions of supervised release made manda‐
tory by statute—as opposed to non‐mandatory conditions—
renders those conditions nullities. This case presents that
question.
While the district court’s written judgment characterized
and listed each of the five conditions Anstice challenges as
“Statutory Mandatory Conditions” it turns out that two of
those conditions are neither statutory nor mandatory. Those
two conditions—the requirement for Anstice to report to the
4 No. 18‐3171
probation office within 72 hours of his release and the prohi‐
bition on his possessing a firearm, destructive device, or other
dangerous weapon—do not appear as mandatory conditions
in 18 U.S.C. § 3583(d). Nor are we aware of any other source
of law requiring the imposition of these two conditions.
Resolving this appeal therefore requires that we distin‐
guish between these two conditions—which are not required
by statute—and the three other conditions included under the
heading “Statutory Mandatory Conditions” in the written
judgment. The latter three conditions do appear in § 3583(d)
and thus are truly mandatory.
A
We begin with the three conditions required by § 3583(d)
and properly characterized as mandatory in the written judg‐
ment. Those conditions (1) prohibit Anstice from committing
another federal, state, or local crime; (2) bar him from illegally
possessing a controlled substance; and (3) require his cooper‐
ation with the collection of a DNA sample.
That these three conditions are statutorily required is im‐
portant. It means that the sentencing court had no discretion
regarding whether to impose them: they must be part of any
term of supervised release. And, like all federal criminal de‐
fendants, Anstice had notice he was subject to these manda‐
tory conditions because they appear in § 3583(d). They were
also included in the PSR, which Anstice confirmed at sentenc‐
ing he had received and reviewed with his counsel.
In these circumstances, we conclude that the three condi‐
tions of supervised release mandated by § 3583(d) were val‐
idly part of Anstice’s sentence even though the district court
failed to announce them orally at sentencing. No circuit to
No. 18‐3171 5
have considered this question has reached a contrary conclu‐
sion. See, e.g., United States v. Vasquez‐Puente, 922 F.3d 700, 705
(5th Cir. 2019); United States v. Drapeau, 644 F.3d 646, 656 (8th
Cir. 2011); United States v. Napier, 463 F.3d 1040, 1043 (9th Cir.
2006); United States v. Vega‐Ortiz, 425 F.3d 20, 22–23 (1st Cir.
2005).
B
This brings us to the remaining two conditions of super‐
vised release appearing as “Statutory Mandatory Conditions”
in the written judgment. This listing was erroneous, as neither
condition—that Anstice (1) report to the probation office
within 72 hours of his release and (2) refrain from possessing
a firearm, destructive device, or other dangerous weapon—
appears in § 3583(d). Nor are they described as mandated by
statute in the Sentencing Guidelines. See U.S.S.G. § 5D1.3(a).
In short, these two conditions are discretionary.
As commonplace and sensible as these two conditions
may be across federal sentences, Congress has not mandated
their imposition. If a district court does choose to impose
them, they must be announced at sentencing. See Johnson, 765
F.3d at 711. That did not happen here. To the contrary, the
district court announced several other discretionary condi‐
tions of supervised release at Anstice’s sentencing hearing
without saying anything about these two conditions. So we
have a circumstance where the oral sentence conflicts with the
written sentence and therefore must vacate these two condi‐
tions. See id. The district court has ample authority to impose
these conditions on remand. See id.; 18 U.S.C. § 3583(e)(2).
6 No. 18‐3171
C
With today’s decision, we emphasize that the sound and
prudent approach is for the district court to orally pronounce
all conditions of supervised release, even those mandated by
statute. In recognizing that certain conditions are required by
§ 3583(d) and therefore necessarily part of any term of super‐
vised release, we do not intend to displace this practice, which
serves to confirm that the defendant is aware of the conditions
to which he will be subject on supervised release.
We end with an administrative observation regarding the
written supervised release form contained in the standard‐
form J&C (form AO 245 B) used in the Western District of Wis‐
consin. The form erroneously includes as “Statutory Manda‐
tory Conditions” two conditions highlighted in this opinion
that are not required by § 3583(d)—specifically, the require‐
ment for the defendant to report to the probation office within
72 hours of release from custody and the prohibition on a de‐
fendant possessing a firearm, destructive device, or other
dangerous weapon while on supervised release. To allow the
district court to modify the form and correct this error, we di‐
rect our Clerk of the Court to send this opinion to the Clerk
for the Western District of Wisconsin.
For these reasons, we AFFIRM the district court’s imposi‐
tion of the conditions of supervised release mandated by
§ 3583(d), VACATE the non‐mandatory additional conditions
provided in the written judgment, and REMAND to allow the
district court to modify and reconsider Anstice’s sentence
with respect to the two non‐mandatory conditions of super‐
vised release.