United States v. Cary
| Decision Date | 06 January 2015 |
| Docket Number | No. 14–1961.,14–1961. |
| Citation | 775 F.3d 919 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Jeremy S. CARY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jason M. Bohm, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.
Luke P. Taylor, Law Firm of Luke P. Taylor, PC, Pekin, IL, for Defendant–Appellant.
Before MANION, WILLIAMS, and SYKES, Circuit Judges.
Jeremy S. Cary pleaded guilty to one count of failing to register as a sex offender. The district court sentenced him to thirty-three months' imprisonment. Cary now appeals, challenging various special conditions of his supervised release. We affirm in part, vacate in part, and remand with the direction that the district court amend Cary's conditions of supervised release consistent with this opinion. A hearing on the nature and scope of the computer monitoring and filtering software and sexually oriented websites Cary is prohibited from accessing will be necessary on remand.
Jeremy Cary first became involved in the criminal justice system at the age of fifteen when he was placed on court supervision for battery after touching the buttocks of a woman. He subsequently dropped out of high school and found work washing dishes and bussing tables at restaurants. Simultaneously, he began abusing alcohol (up to ten beers a day) and hard drugs (powder cocaine, crack, and Ecstacy). He was diagnosed as cannabis- and alcohol-dependent while receiving services at a treatment center, and was ultimately asked to leave after threatening and intimidating staff and other patients.
Things escalated on June 11, 2009, when at the age of twenty-five, Cary had sexual intercourse with a minor under the age of seventeen. In March 2010, he pleaded guilty to aggravated criminal sexual abuse. In April 2010, he registered as a sex offender in Illinois. Over the next few months he pleaded guilty to unrelated charges of theft and domestic battery (for which he served time). He was released from jail in August 2010 and by early 2011, had moved to Florida with a married woman and assumed her husband's identity. However, he did not report his departure from Illinois to law enforcement authorities, nor did he register as a sex offender upon his arrival in Florida. This decision violated both the Illinois sex offender registry law and the Sex Offender Registration and Notification Act (SORNA), which makes it a felony for a sex offender knowingly to fail to register following an interstate move. 18 U.S.C. § 2250.
On May 6, 2011, Cary was found crouching in the dark and peering into the windows of a sorority house on a university campus. He was arrested and pleaded guilty to prowling. The prosecution for failure to register as a sex offender underlying this appeal was then initiated.
Procedural history of Cary's federal prosecution
In June 2011, Cary was indicted by a federal grand jury for knowingly failing to register and update a registration as a sex offender, as required by the SORNA. See 18 U.S.C. § 2250(a). He pleaded guilty. In December 2011, the district court sentenced him to a within-Guidelines sentence of thirty-three months' imprisonment and imposed a twenty-year term of supervised release. This included the standard conditions of supervised release as well as number of special conditions. Cary then filed a habeas corpus petition challenging his counsel's failure to properly calculate the Guidelines. In February 2013, the district court granted Cary's petition and, in April 2013, it resentenced him to time served, reduced the term of his supervised release to ten years, and reimposed the standard and some special conditions of that supervised release. Cary was then released into a half-way house.
In July 2013, because of complaints by the half-way house's manager, Cary's probation officer petitioned the district court to revoke Cary's supervised release based on his unmonitored use of a computer and his failure to attend sex offender treatment. In September 2013, the district court held a revocation hearing wherein Cary admitted to the alleged violations. He was sentenced to an above-Guidelines sentence of eighteen months and his term of supervised release was reduced from ten to five years. The court then reimposed the special conditions of his supervised release. In November 2013, Cary filed a second petition for habeas corpus directed at his second attorney's ineffective assistance because he did not appeal the revocation judgment. In April 2014, the district court held a hearing on Cary's petition, granted it, and vacated the September 2013 revocation judgment. The district court then reimposed the identical judgment, sentence, and conditions of supervised release that it had imposed in September 2013.
Cary now appeals, challenging various conditions of the supervised release reimposed on him at the April 2014 hearing and that he will be subject to for five years upon his release from prison.
We have several times declined to decide whether the standard of review for a supervised release condition imposed at sentencing without prior notice is plain error or abuse of discretion. See, e.g., United States v. Goodwin, 717 F.3d 511, 522 (7th Cir.2013) ; United States v. Shannon, 743 F.3d 496, 499 (7th Cir.2014). In Goodwin, for example, we recalled that Fed.R.Crim.P. 51(b) says: “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” 717 F.3d at 522. Since the defendant in Goodwin did not have prior knowledge that the conditions would be imposed, he maintained plain error review should not apply. Id. at 522–23. Our subsequent decision in United States v. Baker, 755 F.3d 515 (7th Cir.2014), did not recognize the prior tension in our case law or address Fed.R.Crim.P. 51(b). And a week after Baker, we ruled in another supervised release case that “[a]s in Shannon and Goodwin, we leave for another day the decision on the proper standard of review” because the outcome would be the same either way. United States v. Farmer, 755 F.3d 849, 854 (7th Cir.2014).
At sentencing in this case, Cary “admittedly did not object to the imposition of any of the conditions of his supervised release at the [d]istrict [c]ourt level.” Appellant Br. 10. To the contrary, in lieu of imprisonment, Cary invited the district court to “amplify these restrictions ... [to] keep[ ] him on a much shorter leash.” And, indeed, nearly all of the conditions at issue were previously imposed on him in 2011, so he was generally on notice of what they entailed. Under these circumstances, we review only for plain error. The plain error standard of review is “remarkably demanding” for an appellant to overcome. United States v. Salazar, 453 F.3d 911, 913 (7th Cir.2006). To correct a plain error, the appellant must establish that there is: “(1) an error or defect (2) that is clear or obvious (3) affecting the defendant's substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of judicial proceedings.” Goodwin, 717 F.3d at 518 (quoting United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.2010) ).
“Reducing recidivism is the main purpose of supervised release.” United States v. Siegel, 753 F.3d 705, 708 (7th Cir.2014). The general conditions of supervised release are outlined in 18 U.S.C. § 3583(d). But those conditions are a guide, not a limit on the types of conditions a district court—upon sufficient findings of fact—may impose on an offender's conditional liberty. In furtherance of the Sentencing Commission's goal of reducing recidivism, a district court may impose discretionary or special conditions of supervised release at sentencing, but those conditions “must: (1) be reasonably related to the factors identified in § 3553(a), including the nature and circumstances of the offense and the history and characteristics of the defendant; (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a) ; and (3) be consistent with the policy statements issued by the Sentencing Commission.” United States v. Evans, 727 F.3d 730, 733 (7th Cir.2013) (citation and internal quotations omitted). “Policies emphasized by the Sentencing Commission include deterrence, rehabilitation, and protecting the public.” Id. A sentencing judge must “give a reason, consistent with the sentencing factors in § 3553(a), for every discretionary part of the sentence ... including any non-mandatory conditions of supervised release.” United States v. Bryant, 754 F.3d 443, 444–45 (7th Cir.2014). In short, “the terms of supervised release must be reasonably related to the goals of sentencing—deterrence, rehabilitation, and protecting the public—in light of the history and characteristics of the defendant.” Evans, 727 F.3d at 731.
Because Cary conceded his violations at his revocation hearing, see Tr. 4–5, and he has not appealed his sentence, the scope of this appeal is limited to the various special conditions of supervised release he will be subject to upon his release from prison.
As a mandatory condition of supervised release, Guideline § 5D1.3(c)(7) prohibits the “excessive use of alcohol.” Here, Cary challenges a special condition that reads, in pertinent part, that he “shall refrain from the use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or mood altering substance.” Cary's challenge to this provision is two-fold and directed at the prohibitions against his consumption of alcohol (a complete ban) and mood-altering substances. Appellant Br. 43.
We previously upheld a complete ban on the consumption of alcohol when such a condition was supported by evidence in the...
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