United States v. Anstice, No. 18-3171 (7th Cir. 2019)
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Anstice pleaded guilty to conspiring to distribute methamphetamine and was sentenced to 10 years’ imprisonment and five years’ supervised release. Five conditions of supervised release appeared in the written judgment of conviction but were not announced orally by the district court at sentencing. Three of the challenged conditions are mandated by federal statute, 18 U.S.C. 3583(d), and two are discretionary (requiring Anstice to report to the probation office within 72 hours of his release and prohibiting his possessing a firearm, destructive device, or other dangerous weapons),. All had been categorized as “mandatory” in the Presentence Investigation Report. The Seventh Circuit affirmed in part. The three conditions mandated by section 3583(d) were validly part of Anstice’s sentence even though the court failed to announce them orally at sentencing. The court vacated the other two conditions. As commonplace and sensible as the 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; in this case, the oral sentence conflicts with the written sentence.
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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 o ce 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 o ce 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 o ce 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 o ce 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.
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