United States v. Jackson, No. 17-3350 (7th Cir. 2018)

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Jackson was convicted, based on a scheme to defraud mortgage lenders, of wire fraud, 18 U.S.C. 1343, and mail fraud, 18 U.S.C. 1341, and was sentenced to 112 months’ imprisonment on each of three counts, to be served concurrently, plus concurrent three‐year terms of supervised release, a $300 special assessment, and restitution of $8,515,570. The Seventh Circuit vacated the sentence, finding that the court erroneously applied the obstruction‐of‐justice enhancement. At resentencing, the court removed that enhancement and imposed a sentence of 100 months’ imprisonment. It did not change the remaining elements of the sentence. Jackson appealed the terms of her supervised release. The parties agreed that certain conditions were impermissibly vague in light of recent Seventh Circuit decisions. At her third sentencing, Jackson received a sentence of 76 months’ imprisonment, with the same special assessment and restitution, and terms of supervised release that complied with precedent. The district court orally announced the conditions of supervised release and explained why each condition was imposed but did not orally announce any condition requiring that Jackson notify a probation officer within 72 hours of being arrested or questioned by a law enforcement officer. The district court’s written judgment included that discretionary condition. The Seventh Circuit vacated the sentence with a corrective instruction. When “an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls.”

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17 3350 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GWENDOLYN JACKSON, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 cr 453 4 — Virginia M. Kendall, Judge. ____________________ SUBMITTED OCTOBER 25, 2018 — DECIDED NOVEMBER 26, 2018 ____________________ Before RIPPLE, KANNE, and SYKES, Circuit Judges. PER CURIAM. Gwendolyn Jackson was convicted in the United States District Court for the Northern District of Illi nois on charges arising out of a scheme to defraud mortgage After examining the briefs and record, we have concluded that oral ar gument is unnecessary. Thus, the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a)(2)(C). 2 No. 17 3350 lenders. Specifically, a jury found her guilty of two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. The district court sentenced Ms. Jackson to 112 months’ imprisonment on each of her three counts, to be served concurrently. It also imposed concurrent three year terms of supervised release, along with a $300 special assessment and restitution in the amount of $8,515,570. Ms. Jackson appealed her conviction and her sentence. We a rmed the conviction but vacated the sentence. United States v. Jackson, 787 F.3d 1153, 1161 (7th Cir. 2015). With respect to sentencing, we held that the district court erroneously applied the obstruction of justice enhancement, given its finding that Ms. Jackson did not commit perjury at trial. Id. at 1160. At re sentencing, the district court removed the obstruction of jus tice enhancement and imposed a new sentence of 100 months’ imprisonment. It did not change the remaining elements of the sentence: Ms. Jackson also received concurrent three year terms of supervised release, a $300 special assessment, and restitution in the amount of $8,515,570. Ms. Jackson appealed the terms of her supervised release. She, along with the Government, brought a motion for sum mary reversal and remand for resentencing. The parties agreed that certain conditions of the supervised release were impermissibly vague and ambiguous in light of our decisions in United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and United States v. Poulin, 809 F.3d 924 (7th Cir. 2016). We granted this joint motion, vacating Ms. Jackson’s sentence and re manding for resentencing. United States v. Jackson, No. 15 3443 (7th Cir. June 14, 2016) (order remanding for resentencing). No. 17 3350 3 At her third sentencing hearing, Ms. Jackson received a sentence of seventy six months’ imprisonment. The district court again imposed a $300 special assessment and $8,515,570 in restitution, along with concurrent three year terms of su pervised release that complied with Thompson and Poulin. The district court orally announced the conditions of Ms. Jack son’s supervised release and explained why each condition was imposed. It did not orally announce any condition requir ing that Ms. Jackson notify a probation o cer within sev enty two hours of being arrested or questioned by a law en forcement o cer. The district court’s written judgment, how ever, included a discretionary supervised release condition that Ms. Jackson “shall notify a probation o cer promptly, within 72 hours, if arrested or questioned by a law enforce 1 2 ment o cer.” Ms. Jackson timely appealed. We review allegations of procedural error in a district court’s imposition of supervised release conditions de novo. United States v. Moore, 788 F.3d 693, 696 (7th Cir. 2015). Ms. Jackson submits, and the Government agrees, that the district court erred when it imposed a supervised release con dition in the written judgment that was not orally announced at sentencing. We have held that when “an inconsistency exists between an oral and the later written sentence, the sentence pro nounced from the bench controls.” United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (quoting United States v. Bo nanno, 146 F.3d 502, 511 (7th Cir. 1998)). This rule includes 1 R.1349 at 4. 2 The district court had jurisdiction under 18 U.S.C. § 3231. Our jurisdic tion is premised on 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 4 No. 17 3350 conditions of supervised release. See United States v. Kappes, 782 F.3d 828, 862–63 (7th Cir. 2015); United States v. Johnson, 765 F.3d 702, 711 (7th Cir. 2014). Because the notification con dition here was not pronounced from the bench, it must be vacated. Ms. Jackson asks for a limited remand so that the district court may enter a corrected judgment without the notification condition. She submits that there is no need for an additional sentencing hearing because she will be released to a halfway house shortly and the logistics of her appearance at such a hearing could disrupt her transition. The Government agrees with Ms. Jackson. We have said that, in instances such as this, “[t]he cleanest way to end the matter is to remand with a cor rective instruction. An additional hearing is not required.” Al buray, 415 F.3d at 788 (citing United States v. Maro, 272 F.3d 817, 825 (7th Cir. 2001); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)). Therefore, Ms. Jackson’s sentence is VACATED, and we REMAND to the district court so that it may enter a corrected judgment without the supervised release condition that Ms. Jackson notify a probation o cer within seventy two hours of being arrested or questioned by a law enforcement o cer. It is so ordered.

Primary Holding

The district court erred when it imposed a supervised release condition in the written judgment that was not orally announced at sentencing.

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