United States v. David Bell , 915 F.3d 574 ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-3588
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    David Allen (Allan) Bell, also known as David Allen Bell, also known as Donte Borae
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: November 15, 2018
    Filed: February 12, 2019
    ____________
    Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    David Bell appeals the district court’s imposition of special conditions of
    supervised release prohibiting the consumption of alcohol and setting a curfew. We
    reverse and vacate those conditions.
    Under a binding plea agreement, Bell pleaded guilty to conspiracy to distribute
    marijuana and conspiracy to commit money laundering. The plea agreement included
    a waiver of appellate and post-conviction rights. As relevant here, Bell “expressly
    waive[d] the right to appeal any sentence, directly or collaterally, on any ground
    except . . . (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) an
    illegal sentence, or; (4) that the Court imposed a sentence other than the one set out
    in this binding plea agreement.” The plea agreement defined an illegal sentence as
    “a sentence imposed in excess of the statutory maximum or different from that set out
    in this binding plea agreement” but “not a misapplication of the Sentencing
    Guidelines or an abuse of discretion.” The plea agreement provided for a sentence
    of 15 months’ imprisonment and 3 years’ supervised release.
    A presentence investigation report was also prepared. It stated that Bell
    “consumes alcohol occasionally, primarily on weekends.” It also noted that Bell first
    used marijuana in high school and eventually began using it “regularly.” Neither Bell
    nor the Government objected to the facts contained in the presentence investigation
    report.
    After the district court confirmed that the plea agreement and appellate waiver
    were knowing and voluntary, Bell was sentenced to 15 months’ imprisonment and 3
    years’ supervised release. The district court also imposed special conditions of
    supervised release that were not described in the plea agreement. Special Condition
    No. 4 requires that Bell “not consume or possess alcoholic beverages or beer,
    including 3.2 percent beer, at any time, and [that he] shall not be present in any
    establishment where alcoholic beverages are the primary items for sale.” Special
    Condition No. 5 requires Bell to be at his “place of residence between the hours of
    10:00 p.m. and 6:00 a.m., 7 days per week,” unless his work schedule requires
    otherwise.
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    According to the court, the alcohol ban was necessary because “I’ve had too
    many defendants that go out and get to drinking, then they get intoxicated and then
    they go out and violate their supervised release.” The court pointed to similar
    justifications in imposing the curfew:
    And the same reason I put that curfew on there. . . . [T]hey violate their
    probation, they’re out usually past midnight. They’re out on the prowl, and
    they get into trouble. They get drinking, then they’re out prowling the streets.
    Now, there’s no indication you do that. But I’m going to leave it on there
    because I’m not even going to give you the chance to be tempted by it.
    Bell timely appealed the imposition of these conditions.
    We must first consider whether the appellate waiver prevents Bell from
    challenging the two special conditions of supervised release.1 We review the validity
    of an appellate waiver de novo. United States v. Seizys, 
    864 F.3d 930
    , 931 (8th Cir.
    2017). Ordinarily, plea agreements “will be strictly construed and any ambiguities
    in these agreements will be read against the Government and in favor of a defendant’s
    appellate rights.” United States v. Andis, 
    333 F.3d 886
    , 890 (8th Cir. 2003) (en banc).
    “[T]he burden of proof is on the Government to demonstrate that a plea agreement
    clearly and unambiguously waives a defendant’s right to appeal.” 
    Id. But Bell’s
    plea
    agreement proposed a different standard. It provided that “in interpreting this
    agreement, any drafting errors or ambiguities are not to be automatically construed
    against either party, whether or not that party was involved in drafting or modifying
    this agreement.” We need not decide whether the parties can contract around our case
    law construing ambiguities against the Government. Giving the words their “normal
    1
    In a separate pro se brief, Bell also invokes ineffective assistance of counsel
    and challenges subject-matter jurisdiction and venue. We decline to address the
    ineffective assistance of counsel claim on direct appeal. See United States v. Cooke,
    
    853 F.3d 464
    , 475 (8th Cir. 2017). And as Bell’s counsel acknowledged, the other
    claims are without merit.
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    and ordinary meanings,” as the plea agreement itself demands, we conclude that the
    waiver does not prevent Bell from challenging the special conditions of supervised
    release.
    The plea agreement expressly stated that Bell may appeal a sentence “other
    than the one set out in this binding plea agreement.” While the plea agreement
    provided for a sentence of 15 months’ imprisonment and 3 years’ supervised release,
    it did not describe any special conditions of supervised release. According to Andis,
    special conditions of supervised release are part of a 
    sentence. 333 F.3d at 892
    n.7;
    see also 18 U.S.C. § 3583(a) (stating that courts may include a term of supervised
    release “as a part of the sentence”). We therefore find that Bell is appealing a
    sentence other than the one provided for in the plea agreement. In response, the
    Government points to the additional language stating that Bell cannot appeal “a
    misapplication of the Sentencing Guidelines or an abuse of discretion.” Because we
    ordinarily review a sentencing court’s imposition of conditions of supervised release
    for an abuse of discretion, the Government contends that the waiver blocks Bell’s
    appeal here. But this language defines an illegal sentence, the third category of
    exceptions to the appellate waiver. The definition does not purport to limit the fourth
    category: “that the Court imposed a sentence other than the one set out in this
    binding plea agreement.” The special conditions are part of Bell’s sentence but were
    not set out in the plea agreement. They therefore meet the “other than” exception and
    do not fall within the scope of the waiver.
    Because Bell objected at sentencing to Special Condition No. 4 imposing an
    alcohol ban, we review its imposition for abuse of discretion. See United States v.
    Forde, 
    664 F.3d 1219
    , 1222 (8th Cir. 2012). While the district court’s discretion is
    broad, it is not absolute. 
    Id. The conditions
    must 1) be “reasonably related to the
    sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involve[] no greater
    deprivation of liberty than is reasonably necessary for the purposes set forth in
    § 3553(a); and 3) [be] consistent with any pertinent policy statements issued by the
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    Sentencing Commission.” United States v. Wiedower, 
    634 F.3d 490
    , 493 (8th Cir.
    2011). Moreover, the sentencing court “must make an individualized inquiry into the
    facts and circumstances underlying a case and make sufficient findings on the record
    so as to ensure that the special condition satisfies the statutory requirements.” 
    Id. (internal quotation
    marks omitted). The court “may not impose a special condition
    on all those found guilty of a particular offense.” 
    Id. But a
    special condition need not
    be vacated if its basis can be discerned from the record, even in the absence of
    individualized findings. United States v. Deatherage, 
    682 F.3d 755
    , 758 (8th Cir.
    2012).
    “We have repeatedly affirmed total bans on alcohol consumption when either
    the defendant’s history and characteristics or the crime of conviction supported the
    restriction.” United States v. Robertson, 
    709 F.3d 741
    , 748 (8th Cir. 2013). We have
    also held that a history of drug abuse can support a condition prohibiting the
    consumption of alcohol because it is “within the district court’s discretion to
    recognize the threat of cross addiction and respond by imposing the ban on alcohol
    use.” See 
    Forde, 664 F.3d at 1224
    ; see also U.S.S.G. § 5D1.3(d)(4) (recommending
    such conditions for defendants who abuse drugs or alcohol). But we have vacated
    complete bans on alcohol “where the defendant’s history or crime of conviction” did
    not support them. United States v. Walters, 
    643 F.3d 1077
    , 1080 (8th Cir. 2011). In
    particular, we have refused to treat the distribution of drugs as a crime of conviction
    that in itself justifies banning alcohol. See 
    Forde, 664 F.3d at 1222-23
    . Likewise,
    we have held that the threat of cross addiction justifies a total prohibition on alcohol
    only where the defendant is truly drug dependent, and we have explained that even
    repeated marijuana use and light alcohol consumption are not necessarily sufficient
    to establish dependency, which exists when “a person is psychologically or
    physiologically reliant on a substance.” United States v. Woodall, 
    782 F.3d 383
    , 387
    (8th Cir. 2015) (per curiam).
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    Applying these principles here, we conclude that the sentencing court abused
    its discretion in imposing the condition prohibiting Bell from any consumption of
    alcohol and from frequenting establishments where it is the primary item for sale.
    Rather than conducting an individualized inquiry into the circumstances of Bell’s
    alcohol use and drug dependence, the district court cited its general experience with
    prior offenders. In fact, the court admitted that “there’s no indication you do that
    [drinking and prowling the streets].” Moreover, the court made no finding that Bell
    is drug dependent and susceptible to cross addiction to alcohol. See 
    Walters, 643 F.3d at 1080
    . While the presentence investigation report did indicate that he used
    marijuana “regularly,” it did not specify how frequently he used it. We have held that
    consumption of one or two beers each month and use of marijuana once every other
    month did not amount to drug dependence, and the record does not show that Bell’s
    regular use of marijuana and occasional consumption of alcohol resulted in
    dependence. See 
    Woodall, 782 F.3d at 387
    . And while officers found hundreds of
    marijuana plants in the basement of the residence where Bell was arrested, this
    evidence could relate primarily to his effort to make money by distributing marijuana
    and was not used to make any findings concerning his own addiction. See 
    Forde, 664 F.3d at 1222-23
    (explaining that a conviction for distributing drugs does not
    necessarily justify an alcohol ban). Given the sentencing court’s lack of findings
    particular to Bell and its express reliance on the general characteristics of other
    offenders, we vacate the special condition prohibiting him from consuming any
    alcohol or visiting establishments where it is served.
    We conclude that the sentencing court also abused its discretion in imposing
    the curfew. Rather than making individualized findings, the court referenced its
    general experience with offenders and admitted that there was “no indication” this
    experience pertained to Bell. See 
    Wiedower, 634 F.3d at 493
    (requiring
    individualized findings). We also do not see a reasonable probability that the court
    would have imposed the condition after an individualized assessment. See U.S.S.G.
    § 5D1.3(e)(5) (suggesting that a “curfew may be imposed if the court concludes that
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    restricting the defendant to his place of residence during evening and nighttime hours
    is necessary to protect the public from crimes that the defendant might commit during
    those hours, or to assist in the rehabilitation of the defendant”). The presentence
    investigation report did indicate that Bell met a coconspirator at a nightclub, but it
    otherwise is unclear how the curfew is reasonably related to the protection of the
    public or Bell’s criminal history and rehabilitative and correctional needs given that
    the conspiracy involved distributing marijuana through the mail and laundering the
    proceeds. Bell’s case bears little resemblance to those in which we have upheld
    curfews. See, e.g., United States v. Asalati, 
    615 F.3d 1001
    , 1008 (8th Cir. 2010)
    (upholding a curfew condition for a defendant who “demonstrate[d] a continued and
    escalating inability to operate within the confines of the law” and committed several
    crimes while on supervised release); United States v. Mack, 455 F. App’x 714, 716
    (8th Cir. 2012) (per curiam) (upholding a curfew for a defendant who repeatedly had
    been arrested for driving under the influence after midnight).
    For the foregoing reasons, we vacate Special Condition No. 4, which prohibits
    Bell from consuming alcohol or frequenting establishments where alcoholic
    beverages are the primary items for sale, and Special Condition No. 5, which imposes
    a curfew upon Bell.
    ______________________________
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