United States v. Raymer, Larry P.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005*
Decided September 13, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1348
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, New Albany
v. Division
LARRY P. RAYMER, No. NA 98-04-CR-01
Defendant-Appellant.
Larry J. McKinney,
Chief Judge.
ORDER
Larry Raymer was convicted in 1998 of possessing firearms despite a felony
conviction, 18 U.S.C. § 922(g), and was sentenced under the Armed Career Criminal
Act, id. § 924(e), to 180 months’ imprisonment and five years’ supervised release.
The court imposed two special conditions of supervised release: that Raymer
participate in drug and alcohol testing, and that he submit to searches of his
property for contraband, including drugs and weapons. Raymer litigated both a
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1348 Page 2
direct appeal and a collateral action under 28 U.S.C. § 2255, but he raised no
argument about supervised release in either proceeding.
Now Raymer, who is still in prison, appeals the denial of a motion to modify
his term of supervised release under 18 U.S.C. § 3583(e)(2) and Fed. R. Crim. P.
32.1. With that motion Raymer asked Chief Judge McKinney to shorten the term
since Judge Dillin (now retired) did not explain at sentencing why he chose five
years instead of a shorter term, and because Raymer believes that five years is
unreasonably long relative to terms handed down by other courts for similar crimes.
Raymer also requested that the two special conditions be removed because, he
maintained, Judge Dillin failed to link them to the nature and circumstances of his
gun offense. As a fallback position, Raymer argued that clarification is required
because the oral and written pronouncements of these conditions conflict.
Raymer reasserts these same arguments here. Section 3583(e)(2) permits a
district court to “modify, reduce, or enlarge the conditions of supervised release”
under Rule 32.1 “at any time prior to the expiration or termination of the term of
supervised release.” 18 U.S.C. § 3583(e)(2). Although a motion is proper in cases of
changed circumstances or an ambiguous condition, the statute and rule may not be
used to challenge errors committed at sentencing. See United States v. Nonahal,
338 F.3d 668, 671 & n.1 (7th Cir. 2003); United States v. Gross, 307 F.3d 1043,
1044 (9th Cir. 2002); United States v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999);
United States v. Lussier, 104 F.3d 32, 34–36 (2d Cir. 1997); United States v. Kress,
944 F.2d 155, 158 n.4 (3d Cir. 1991). Therefore, to the extent Raymer argued that
Judge Dillin erred by imposing too long a term or conditions unrelated to his crime,
his motion was a disguised request for collateral relief outside the scope of
§ 3583(e)(2). See Gross, 307 F.3d at 1044; Lussier, 104 F.3d at 35. Raymer’s
arguments are not, as the government contends, premature; they are too late: he
should have raised them on direct appeal or in a Rule 35(c) motion. See Gross, 307
F.3d at 1044; Lussier, 104 F.3d at 35.
Even so, Raymer also sought clarification of the conditions of supervised
release, which is a legitimate basis for a motion. The rule permits a defendant to
move for “clarification of a term or condition of supervised release so that the
defendant may have an opportunity to comply with the court’s order without first
having to violate it.” United States v. Lilly, 206 F.3d 756, 762 (7th Cir. 2000);
accord United States v. Padilla, 415 F.3d 211, 223 (1st Cir. 2005). Here, as Raymer
maintains, Judge Dillin orally pronounced the first special condition by ordering
him to submit to testing and treatment for “substance abuse,” but clarified in
writing that the program was for “drug and alcohol abuse.” As for the second
condition, the court said that Raymer’s “person, vehicle, residence, and property”
would be subject to search for “any contraband . . . including illegal drugs and
weapons,” but added in writing that Raymer’s “office/business” would also be
subject to search and that Raymer must “warn any other residents that the
No. 05-1348 Page 3
premises may be subject to searches.” Raymer thinks the oral and written
statements don’t match, and points to the rule that, when there is a discrepancy
between the oral and written pronouncements, the oral pronouncement controls,
United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005). But there is no
discrepancy when “the written judgment is simply a more specific rendering of the
pronouncement at the hearing,” United States v. Sines, 303 F.3d 793, 799 (7th Cir.
2002), which is what happened here. After all, drug and alcohol abuse are forms of
“substance abuse”; Raymer’s business and office are his “property” or places where
he would keep property; and warning others is a consistent way to implement the
search condition.
AFFIRMED.