United States v. Campbell
| Decision Date | 19 February 2016 |
| Docket Number | No. 15–1188.,15–1188. |
| Citation | 813 F.3d 1016 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Lon CAMPBELL, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cynthia J. Ridgeway, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.
Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Elisabeth R. Pollock, Attorney, Office of
the Federal Public Defender, Urbana, IL, for Defendant–Appellant.
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
HAMILTON
, Circuit Judge.
Appellant Lon Campbell pled guilty to using a social security number fraudulently. The district court sentenced him to 21 months in prison followed by three years of supervised release. He waived his right to appeal the sentence in the written plea agreement. He has appealed nonetheless, contending that several conditions of his supervised release are unconstitutionally vague. We enforce the appellate waiver and dismiss the appeal.
Campbell had a poor credit history, so he devised a scheme to hide it. For $2,700, Campbell bought from his friend "Buster" a stranger's social security number and went to the Indiana Bureau of Motor Vehicles with the number and a fictitious address to obtain a new license. He then used the number to open three lines of credit at retail stores and purchase one vehicle. After the FBI investigated Buster's scheme, Campbell and his co-conspirators were indicted for wire, loan, and social-security fraud.
Campbell and the government reached a plea agreement. The government agreed to drop all but one count. Campbell agreed to plead guilty to one count of using a false social security number with intent to deceive in violation of 42 U.S.C. § 408(a)(7)(B)
.
In return for the government's concessions, Campbell also expressly waived "his right to appeal his conviction on any ground" and "his right to appeal his sentence, including the right to appeal conferred by Title 18, United States Code, Section 3742
, regardless of how the sentence and the offense level are calculated by the Court."
During the guilty plea hearing, the judge informed Campbell of his right to appeal the conviction and sentence, and Campbell acknowledged that he waived those rights. After accepting the guilty plea, the court immediately turned to sentencing. Neither party had filed a sentencing memorandum or objected to the presentence investigation report, which proposed both guideline calculations and conditions of supervised release.
The court sentenced Campbell to 21 months of imprisonment, which was the low end of the guideline range, consistent with both the plea agreement and presentence report. Those 21 months were to be served consecutively to 12 months of imprisonment imposed for violating terms of supervised release in an earlier case. The sentence also included about $15,000 in restitution.
Most relevant to this appeal, the court imposed three years of supervised release subject to special and standard conditions recommended in the PSR. In this appeal, Campbell objects to conditions requiring that he: (1) not leave "the judicial district"; (2) "support" his family and meet family responsibilities; (3) work "regularly" and notify his probation office of changes in employment; (4) avoid "excessive" alcohol use; (5) not knowingly "associate" with felons; and (6) permit regular visits by a probation officer. Campbell immediately requested an appeal but did not specify any grounds.
Two hours later, the judge reconvened the sentencing hearing to put on the record her reasons for imposing the standard conditions of supervised release. The parties voiced two objections. Campbell objected to the condition that he maintain "regular" employment; he feared that he would return to prison if he could not find a job. The judge explained that he would not violate the condition on regular employment if he were looking actively for employment. That explanation seemed to satisfy Campbell. The government asked the judge to clarify the condition barring Campbell from "associating" with felons. The judge explained that he could not meet with family members who are actively engaged in criminal activity, but he could, for example, attend family functions where a cousin with a felony record might also be present.
The court's written sentence added another standard condition that had also been included in the presentence report to which Campbell had filed no objections—a requirement that he notify third parties of risks occasioned by his criminal record, personal history, and characteristics.
On appeal Campbell argues that the conditions of supervised release identified above are unconstitutionally vague. As a remedy, he wants those conditions vacated and a remand for a full resentencing. We conclude, however, that Camp-bell's appeal waiver requires dismissal of his appeal.
When a defendant has knowingly and voluntarily waived his appellate rights, including a right to challenge a sentence not yet imposed, and the terms of the waiver are express and unambiguous, we will enforce the waiver. United States v. Smith, 759 F.3d 702, 706–07 (7th Cir.2014)
; United States v. Quintero, 618 F.3d 746, 751 (7th Cir.2010). An enforceable waiver prevents challenges to the conditions of supervised release imposed as part of the sentence. See, e.g., United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The waiver also generally bars review of constitutional errors, see United States v. Adkins, 743 F.3d 176, 193 (7th Cir.2014), or errors that are plain in retrospect. Smith, 759 F.3d at 707. Campbell's waiver was clear and broad and by its terms forecloses this appeal.
Campbell argues we should overlook his waiver. We have allowed only a few narrow and rare exceptions to appeal waivers. An appeal waiver does not prevent challenges to a sentence based on a constitutionally impermissible factor such as race, a sentence that exceeds the statutory maximum for the particular crime, a proceeding lacking a "minimum of civilized procedure," or ineffective assistance of counsel in negotiating the plea agreements. United States v. Bownes, 405 F.3d 634, 637 (7th Cir.2005)
. None of those apply here.
Campbell relies on an exception we recognized in United States v. Adkins, 743 F.3d 176 (7th Cir.2014)
, where one condition of supervised release prohibited the defendant from "patroniz[ing]" any place where "sexually stimulating material or sexually oriented material" is available, or viewing that material. We ruled...
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