United States v. Darick Hudson
United States v. Darick Hudson
Opinion
*1084
Darick Hudson pleaded guilty to possession of a firearm by a convicted felon, in violation of
First, Hudson asserts a condition prohibiting "excessive use of alcohol" must be clarified, as "excessive" is not defined 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 buttons the probation officer checks to indicate those recommended 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 condition 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
,
Next, Hudson challenges a condition restricting his travel during supervised release. At the sentencing hearing, the district 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 vagueness, we have described this same
*1085
language limiting travel to a "jurisdiction" as "poorly worded,"
United States v. Ortiz
,
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
,
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 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
,
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 judgment 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 discretionary condition number 7 of Hudson's supervised release, a definition of "excessive use of alcohol" as having a blood alcohol concentration *1086 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 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.
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."
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.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Darick HUDSON, Defendant-Appellant.
- Cited By
- 22 cases
- Status
- Published