U.S. v. McKissic, 04-3377.

• Decision Date: 08 November 2005
• Docket Number: No. 04-3377.,04-3377.
• Citation: 428 F.3d 719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D. McKISSIC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

428 F.3d 719

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. McKISSIC, Defendant-Appellant.

No. 04-3377.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2005.

Decided November 8, 2005.

Patrick J. Chesley (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Paul Camarena (argued), Chicago, IL, for Defendant-Appellant.

Before RIPPLE, WOOD and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Defendant Robert D. McKissic pleaded guilty to one count of armed bank robbery. He now appeals the imposition of several conditions of supervised release by the district court. Mr. McKissic also contends that he should have been given notice that the court was contemplating such special conditions. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

On March 17, 2004, Mr. McKissic robbed the Illini Bank in Springfield, Illinois. During the robbery, he displayed what appeared to be a handgun; however, it was determined later that the weapon was only a pellet gun. Mr. McKissic took approximately $5,335 and, within minutes of leaving the bank, was apprehended by the police a few blocks away. He admitted to robbing the bank and provided a written statement. On April 26, 2004, Mr. McKissic pleaded guilty to one count of armed bank robbery. See 18 U.S.C. § 2113(a) and (d).

In determining Mr. McKissic's sentence, the district court considered the presentence report, which contained a number of facts about Mr. McKissic's history. Mr. McKissic had dropped out of high school during his senior year and does not have a high school diploma. His employment history can be characterized as checkered; despite being only twenty-four years old, he has held at least twenty different jobs. He had been fired from at least three of those jobs for attendance problems; at one job, he simply left for lunch and never returned. Mr. McKissic also has a criminal record, including a 2001 conviction for domestic battery for which he was on probation when he committed the bank robbery, as well as prior convictions for attempted burglary, criminal trespass to land and multiple instances of driving on a suspended license.

The district court held a sentencing hearing on August 27, 2004. At this hearing, the court noted that it was "getting concerned about the Robert McKissic [it] see[s] in the public record," whose criminal acts appear to be increasing in seriousness. Tr.II at 29. The court also noted that Mr. McKissic had committed the bank robbery while he already was on probation, and that when a person continues to commit crimes on probation, that sends a message to the court that "we better get real serious about this individual." Id. at 30-31.

Mr. McKissic was sentenced to 60 months' imprisonment, followed by 60 months of supervised release. R.16. In addition to the standard conditions of supervision, the district court ordered a number of special conditions, including the following:

1. The defendant shall refrain from any use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance, or any paraphernalia related to any controlled substance, except as prescribed by a physician. He shall, at the direction of the Probation Office, participate in a program for substance abuse treatment including testing to determine whether he has used controlled substances and/or alcohol. He shall pay for these services as directed by the probation officer.

. . .

3. The defendant shall attend an educational program and make reasonable efforts to obtain a GED or high school diploma.

4. The defendant shall obtain and maintain employment or participate in a program of job training or employment counseling as directed by the probation officer.

5. If the defendant is unemployed after the first 60 days of supervision, or if unemployed for 60 days after termination or lay-off from employment, he shall perform at least 20 hours of community service work per week at the direction of and in the discretion of the U.S. Probation Office until gainfully employed.

R. 16 at 4. Mr. McKissic raised no objections to the conditions of supervised release at the sentencing hearing.

II DISCUSSION

A. Imposition of Special Conditions

Mr. McKissic contends that the district court plainly erred when it imposed special conditions of supervised release relating to alcohol use, education, employment and community service. Because Mr. McKissic failed to object to the imposition of the special conditions during his sentencing hearing, we review his claim only for plain error. United States v. Guy, 174 F.3d 859, 862 (7th Cir.1999). In order for us to correct a plain error, there must have been 1) an error, 2) that is plain, 3) that affects substantial rights and 4) that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 626, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In this case, there has been no plain error in the imposition of supervised release conditions.

When imposing supervised release, a district court may include conditions pursuant to United States Sentencing Guideline § 5D1.3, which "duplicat[es] and consolidat[es] language contained in relevant statutes." United States v. Bass, 121 F.3d 1218, 1223 (8th Cir.1997). The United States Sentencing Commission lists several mandatory supervised release conditions in U.S.S.G. § 5D1.3(a). See also 18 U.S.C. § 3583(d). The relevant statute states that, beyond the mandatory supervised release conditions, the district court may impose "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." 18 U.S.C. § 3583(d). These discretionary conditions correspond largely with the recommended "standard" conditions of supervised release listed in U.S.S.G. § 5D1.3(c). The Guidelines also state that:

The court may impose other conditions of supervised release to the extent that such conditions are (1) reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.

U.S.S.G. § 5D1.3; see 18 U.S.C. §§ 3583(d), 3553(a)(1), 3553(a)(2)(B-D).

1. The Total Ban on Alcohol Use

Mr. McKissic submits that it was plain error for the court to impose a condition banning all alcohol use because his offense was unrelated to alcohol use and because he has no history of alcohol abuse. A requirement that a defendant "refrain from excessive use of alcohol" is one of the discretionary conditions listed in § 3563(b) that can be given as a condition of supervised release pursuant to § 3583(d); however, a total ban on alcohol use is not specifically listed as a discretionary condition. See 18 U.S.C. § 3563(b)(7); U.S.S.G. § 5D1.3(7).

Although we approved a ban on alcohol use as a special condition in United States v. Schave, 186 F.3d 839 (7th Cir.1999), Mr. McKissic contends that his case is distinguishable because Schave had a prior diagnosis of alcoholism, and Mr. McKissic had no such diagnosis. Id. at 841-42. Although Mr. McKissic has not been diagnosed with alcoholism, there is history of alcohol use and abuse, including an incident in 1998 when Mr. McKissic was issued a citation for operating a motor vehicle in which there were open containers of alcohol. Additionally, Mr. McKissic admitted to first consuming alcohol at the age of 17, to consuming up to three vodka mixed drinks as often as twice a month, and to being intoxicated about a month prior to his arrest for this offense. He also admitted to marijuana use and indicated to his probation officer that he could benefit from treatment for marijuana use while in prison. Given Mr. McKissic's record and his use of alcohol, in combination with contraband substances, the district court certainly had grounds to conclude that the further use of alcohol would create an obstacle to his rehabilitation while on supervised release.¹ Moreover, given that Mr. McKissic's employment history and criminal record, including the most recent offense, show a progressive unwillingness to conform his conduct to the law, it appears that he tends to be an impulse-oriented individual. The district court recognized this tendency and obviously crafted the conditions of relief to provide a remedy — and, for Mr. McKissic, an opportunity for rehabilitation. See United States v. Cooper, 171 F.3d 582, 586-87 (8th Cir.1999) (special condition banning alcohol was not an abuse of discretion, even though the defendant had no "concrete evidence" of alcohol abuse, when defendant abused his wife and children, consumed large quantities of alcohol on the weekends, and argued more with his wife when he had been drinking).

We are aware that the Eighth Circuit decided a somewhat factually similar case in United States v. Bass, 121 F.3d 1218 (8th Cir.1997). In that case, our colleagues in the Eighth Circuit vacated a condition banning alcohol use. That court determined that there was no evidence that the defendant was "prone to abuse alcohol," even though he had imbibed alcohol on the weekends since the age of 18, and had admitted smoking marijuana on a weekly basis. Id. at 1223-24. Although Mr. McKissic's history may be similar to that defendant's in some respects, we believe that the...