United States v. Lewis

• Decision Date: 24 May 2016
• Docket Number: No. 14-3635,14-3635
• Citation: 823 F.3d 1075
• Parties: United States of America, Plaintiff–Appellee, v. John Alan Lewis, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

823 F.3d 1075

United States of America, Plaintiff–Appellee
v.
John Alan Lewis, Defendant–Appellant.

No. 14-3635

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2015
Decided May 24, 2016

Steven D. DeBrota, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, Amy Elizabeth Larson, Department of Justice, Washington, DC, for Plaintiff–Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before Manion, Williams, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

A jury found appellant John A. Lewis guilty of five federal sex offenses. The district court sentenced Lewis, who is 66 years old and in poor health, to the statutory mandatory minimum sentence of 35 years in prison. Lewis has appealed, but he does not challenge either his convictions or the prison term. The district judge, while recognizing that the chances Lewis will survive his prison sentence are low, also included in his sentence a life term of supervised release. The only issues before us concern the supervised release portion of his sentence. (Lewis also raised a minor forfeiture issue, but that has been resolved by agreement; we do not address it.)

Lewis raised no objections in the district court to any aspect of the supervised release term and conditions. Represented by new counsel on appeal, however, Lewis argues that the court's findings and explanations were not sufficient and that we must vacate the sentence and remand for resentencing, or at least for further consideration of supervised release. See generally, e.g., United States v. Kappes , 782 F.3d 828 (7th Cir. 2015) ; United States v. Thompson , 777 F.3d 368 (7th Cir. 2015) ; United States v. Siegel , 753 F.3d 705 (7th Cir. 2014).

We affirm the judgment of the district court. Sound application of principles of waiver and forfeiture convinces us there is

823 F.3d 1079

no need to send this case back to the district court. The defense had ample advance notice of the terms of proposed release that were contemplated and ultimately imposed. Before sentence was actually imposed, the court expressly invited objections and requests for further findings or elaboration. The defense expressly declined the invitation. That was waiver. Even if it were deemed only forfeiture, there was no plain error requiring remand.

I. The Crimes

Because the issues on appeal are narrow, a brief summary of Lewis's crimes will suffice. In 2012 police in Indianapolis arrested another man who had first obtained sexually explicit photographs of a real girl and then pretended on-line to be a fourteen-year-old prostitute named Becky. “Becky” had on-line chats with Lewis and sent him the sexually explicit images of the real girl. During the chats, Lewis told “Becky” he wanted to record a video of her engaging in what federal law calls sexually explicit conduct.

After police arrested the other man, they took over Becky's identity and continued communicating with Lewis. He offered repeatedly to travel to Indiana to meet Becky, telling her that he wanted to have sex with her in a hotel and then take her to live with him in Ohio. He said he would bring cameras with him to take videos and photographs of their sex.

In September 2012, Lewis drove to Indiana to meet “Becky.” Police arrested him as he drove past the apartment where he believed she lived. A search of his car turned up a list of motels in the area, a digital camera, a tripod, and digital storage media containing more than 100 sexually explicit images of “Becky” and instructions for photographing sex scenes.

Lewis was charged with attempted sexual exploitation of a minor (18 U.S.C. § 2251(a) ); traveling interstate for the purpose of having sex with a minor (§ 2243(b)); transporting child pornography (§ 2252(a)(1)); possessing child pornography (§ 2252(a)(4)(B)); and committing a felony sex offense involving a minor while a registered sex offender (§ 2260A). He had prior state court convictions for attempted sexual conduct with a minor and possession of child pornography. He was a registered sex offender. At the time of his arrest, he was also on probation for having failed to update his sex-offender registration. A jury convicted Lewis on all charges.

II. The Sentencing

Lewis faced a mandatory statutory minimum sentence of 35 years in prison, and that was his sentence. The judge recognized this was likely a de facto life sentence. Even with the maximum available good-time credit, Lewis will be 94 years old when he first becomes eligible for release, well beyond the average life expectancy for men his age. Lewis himself is already in poor health. He is quite obese, has been diagnosed with a number of coronary diseases including congestive heart failure, and had triple-bypass heart surgery several years ago.

Lewis also faced a statutory minimum term of five years supervised release. 18 U.S.C. § 3583(k). The judge sentenced Lewis to a life term of supervised release. The judge imposed the thirteen standard conditions of supervised release spelled out in the presentence report, plus nine conditions the probation officer had also recommended in the presentence report.

Lewis raised no objections to the sentence in the district court, but on appeal, he argues that the judge did not explain why she thought a life term of supervised release was appropriate, that she failed to explain her reasons for imposing many

823 F.3d 1080

conditions of supervised release, and that several of the conditions have various substantive flaws.

III. Recent Case Law on Supervised Release

Before 2014, our court applied standards of waiver and forfeiture to issues concerning supervised release. See, e.g., United States v. Silvious , 512 F.3d 364, 371 (7th Cir. 2008) (over-broad conditions of supervised release were not plain errors requiring correction despite lack of objection); United States v. McKissic , 428 F.3d 719, 726 (7th Cir. 2005) (finding no plain error where supervised release condition was imposed without sufficient notice); United States v. Tejada , 476 F.3d 471, 475–76 (7th Cir. 2007) (finding no plain error in supervised release condition for drug testing).

In a series of opinions beginning in 2014, our court has taken supervised release out of the shadows and focused spotlights upon its substance and procedures. See Kappes , 782 F.3d at 835 n. 1 (collecting cases); Thompson , 777 F.3d 368 ; Siegel , 753 F.3d 705. In that line of cases, we have required more from district judges by way of explanations of supervised release terms and conditions than had been customary. We have also offered district judges a great deal of advice in the form of suggested best practices. In that same line of cases, we have not always followed our earlier precedents regarding waiver and plain error. Before addressing Lewis's claims on appeal and the waiver and forfeiture issues, we lay out the relevant landscape as shaped by our recent cases.

First, supervised release is an important part of a federal criminal sentence. It is mandated in many sentences and is imposed in the vast majority of sentences for more than one year in prison. Kappes , 782 F.3d at 837 (supervised release imposed in 99% of cases where it is not mandatory but prison sentence exceeds one year). When it is managed well, supervised release can serve the complementary goals of protecting the public and rehabilitating an offender who is returning to free society. Supervised release should not be an afterthought; it deserves careful and thoughtful attention from the sentencing judge. Thompson , 777 F.3d at 373–75.

Second, supervised release needs to be a flexible tool, and the governing statute treats it that way. The statute provides for a few mandatory conditions of supervised release, and it authorizes courts to impose additional standard and special conditions tailored to a particular case. 18 U.S.C. § 3583(d).

Conditions of supervised release announced at the beginning of a prison sentence will not take effect until the end of the prison sentence, often many years later. In addition, a defendant's supervised release may take place in a district other than the sentencing court. Unlike other sentence...