United States v. Solomon Smith, Jr.
Opinion
Solomon Smith pleaded guilty to two counts of filing fraudulent federal tax returns. His appeal concerns only the supervised release portion of his sentence. He objects to two discretionary conditions imposed by the judge: one that forbids "excessive use" of alcohol, and one that obliges him to submit to visits from his probation officer at any reasonable time. Those visits may occur at his home, workplace, or any reasonable location that the officer designates. Smith, a teetotaler who stands convicted of tax fraud, views those conditions as unwarranted by his crime or character and ill-suited to the purposes of supervised release. He also asserts that a ban on excessive alcohol use is impermissibly vague.
Although there may be some substance to Smith's complaints, the procedural history of this case complicates matters. After taking time to review the visitation condition, Smith's attorney told the district court that it was reasonable. In so doing, the attorney waived Smith's present objection that the court failed to provide an adequate rationale in support of the condition. As for the alcohol condition, a procedural error by the district court creates a problem, but one that we can fix on appeal. At Smith's sentencing hearing, the district court purported to adopt, by reference to the presentence investigative report (PSR), a condition forbidding "excessive use" of alcohol. Importantly, the PSR explicitly defined the term "excessive use" to mean use that produces a blood alcohol concentration (BAC) in excess of 0.08%. Perhaps not coincidentally, that is the level used by the State of Illinois for purposes of its driving laws. See 625 ILCS 5/11-501(a)(1). But that objective benchmark was not mentioned in either the court's oral pronouncement of the sentence or its later written judgment. The limitation in the PSR thus fell by the wayside, and the undefined term "excessive use" that is currently in the judgment is both vague and, for a non-drinker, unjustified without some explanation. Nonetheless, we conclude that remand is unnecessary, because we find no other reversible error in the conditions of supervised release and we can amend the judgment so that the definition of "excessive use" reflects the court's evident intent to incorporate the BAC of 0.08%. We affirm the district court's judgment as corrected.
I
Smith was prosecuted for filing fraudulent tax returns in violation of
Before Smith's sentencing hearing, the probation office prepared a PSR. The report contained proposed conditions of mandatory supervised release. One of those proposals, labeled discretionary condition 7, stated, "you shall refrain from ? any or ? excessive use of alcohol (defined as having a blood alcohol concentration greater than 0.08%); or ?)." Proposed discretionary condition 16 read, "? you shall permit a probation officer to visit you ? at any reasonable time or ? as specified: ? at home ? at work ? at school ? at a community service location ? other reasonable location specified by a probation officer ? you shall permit confiscation of any contraband observed in plain view of the probation officer." Smith raised no objections to these proposed conditions (or for that matter any others) in his sentencing memorandum. He instead requested a "sentence of probation, supplemented with special conditions appropriate to his crime," without ever addressing the PSR.
During sentencing, the district court permitted Smith to review a written sentencing recommendation prepared by the probation office. The sentencing recommendation included the same two supervised-release conditions as the PSR. When the sentencing hearing turned to supervised release, the district court confirmed that Smith's attorney and the prosecutor were familiar with the proposed conditions and invited them to raise any objections they might have. Smith's attorney said he had no problem with the four proposed mandatory conditions. The district court then enumerated the proposed discretionary conditions and asked, "Is there any reason-this is addressed to the lawyers and Mr. Smith, any reason-we should discuss those or whether-is there any objection to the imposition of any of those conditions?" The prosecution responded that it had "no objection" and thought that each proposed condition was "relevant." The court then addressed Smith's attorney, David Kadzai.
THE COURT: All right. Mr. Kadzai, do you have any objection to those?
MR. KADZAI: We feel they are reasonable.
THE COURT: They are reasonable? All right. So, then, I will impose those.
A similar conversation followed with respect to the seven proposed special conditions, which Kadzai agreed were reasonable and could be imposed without further discussion.
The district court later issued a written judgment. The judgment was similar, but not identical to, the two discretionary conditions found in the PSR and sentencing recommendation:
(7) you shall refrain from ? any or ? excessive use of alcohol (defined as ? having a blood alcohol concentration greater than 0.08%; or ?)....
(16) ? you shall permit a probation officer to visit you ? at any reasonable time or ? as specified: ? at home ? at work ? at school ? at a community service location ? other reasonable location specified by a probation officer ? you shall permit confiscation of any contraband observed in plain view of the probation officer.
Note that written condition 7 did not check off the parenthetical definition of "excessive use," unlike the PSR, which did.
Smith's appeal challenges these two conditions on substantive grounds. Neither condition, Smith asserts, was tailored to him or his offense, and neither furthered the purposes of supervised release. In addition, he argued that the failure to define "excessive use" left him exposed to an arbitrary and indefinite restriction on his liberty.
II
Although judges enjoy " 'wide discretion' in determining conditions of supervised release," that discretion is not without limit.
United States v. Adkins
,
United States v. Thompson
,
We have been less consistent in our analysis of visitation conditions. In a number of cases, we have disapproved of such conditions if they failed to qualify when or where a probation officer may impinge on his supervisee's liberty.
United States v. Henry
,
Although there are tensions between these lines of cases, this is not the proper occasion in which to dig down and see if we need to overrule one set of cases or if they prove to be compatible upon more careful study. As we noted earlier, Smith affirmatively told the district court that he had no objection to the visitation condition in
his
case, and so the judge had no occasion to hear argument or to reflect on both the legal requirements for visitation conditions or the way they apply to Smith. This was more than a forfeiture: it was a waiver of the right to object to that condition. Waiver is the "intentional relinquishment or abandonment of a known right."
United States v. Olano
,
III
We now turn to the alcohol restriction. Smith is not ham-strung by waiver of his objection to this condition because the version to which his lawyer agreed included the critical definition of a BAC above 0.08%. But that limitation did not make it into Smith's sentence. Rather than defining "excessive" either by BAC or anything else, the court said only that "the Discretionary Conditions are styled 1, 2, 4, 6, 7, 8, 14, 15, 16, 17, 18 and 22" and solicited objections to them. Smith's attorney declared the enumerated conditions to be "reasonable," and the court proceeded to "impose those" conditions. That was, at best, ambiguous. And the ambiguity only worsened when the definition of "excessive use" disappeared in the court's written judgment, issued after the sentencing hearing. Smith never assented to those conditions nor did he have an opportunity to do so. As a result, Smith did not forfeit, let alone waive, his right to challenge the written condition as unlawfully vague. FED. R. CRIM. P. 51.
Normally, when there is a conflict between an oral sentence and the written sentence, the oral sentence prevails.
E.g.
,
United States v. Johnson
,
Just such an uncertainty is present here. If the court meant to limit the alcohol condition to consumption that led to a higher BAC than 0.08%, it needed to say so. If it did not so limit the term "excessive use," then, as we have explained, we have both the problem of vagueness and (if excessive means anything more than zero) why this was right for Smith.
Something therefore needs to happen. One option would be to order a plenary resentencing; another would be to vacate the alcohol condition and issue a limited remand to the district court for resentencing only on this point. We have followed both approaches. Compare,
e.g.
,
Thompson
,
IV
This case is a good candidate for a simple correction. By reading off the numbered recommended conditions from the PSR, the only sensible conclusion is that the judge meant to adopt precisely those recommendations. Recommended discretionary condition 7 indicated that "excessive use" of alcohol exists only if BAC goes above 0.08%. As the government points out, if Smith is indeed a teetotaler, this should not inhibit his behavior at all. If the condition proves to be burden-some, Smith is also entitled to file a motion in the district court seeking modification of the terms of his release.
We thus order that the sentence be corrected to include, for purposes of discretionary condition 7 of Smith's supervised release, the limitation tying excessive alcohol use to a BAC of 0.08%. In all other respects we AFFIRM the judgment of the district court.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Solomon SMITH, Jr., Defendant-Appellant.
- Cited By
- 23 cases
- Status
- Published