United States v. Jeremy Strobel ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1092
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY W. STROBEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cr-00074 — James D. Peterson, Chief Judge.
____________________
ARGUED NOVEMBER 4, 2020 — DECIDED FEBRUARY 12, 2021
____________________
Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Jeremy Strobel pleaded guilty to
unlawful possession of a firearm. At his subsequent sen-
tencing hearing, he raised no objections to the conditions of
supervised release proposed in the presentence report and
waived a full reading of those conditions. The district court
nevertheless discussed some aspects of the conditions with
Mr. Strobel. It then imposed explicitly the term of super-
vised release but neglected to impose explicitly the condi-
2 No. 20-1092
tions of supervised release. A short time after the hearing,
the district court issued its written judgment, which includ-
ed all the conditions of supervised release recommended by
the presentence report.
Now, in an effort to permit the district court to revisit an
unrelated aspect of his sentence, Mr. Strobel submits that the
district court’s failure to impose explicitly the conditions of
supervised release during the sentencing hearing renders
the written judgment inconsistent with the court’s earlier
oral pronouncement. That error, Mr. Strobel continues, re-
quires the vacation of his sentence and permits a remand for
a complete resentencing.
We see no impermissible inconsistency between the dis-
trict court’s oral pronouncement and its written judgment.
We accordingly affirm Mr. Strobel’s sentence.
I
BACKGROUND
In September 2018, local law enforcement officers in Ash-
land, Wisconsin, found Mr. Strobel passed out in his car on
the side of the road. A subsequent search of Mr. Strobel’s
vehicle uncovered methamphetamine, and, consequently,
resulted in state drug charges. In April 2019, Ashland police
again found Mr. Strobel passed out in his car, this time in a
Wal-Mart parking lot. A search of his car uncovered a fire-
arm, in addition to marijuana and paraphernalia. At the time
of this 2019 incident, Mr. Strobel was out on bail from his
2018 arrest. The Ashland County District Attorney’s Office
therefore charged him with bail jumping, as well as marijua-
na possession.
No. 20-1092 3
Before Mr. Strobel could resolve his state charges, a fed-
eral grand jury in the Western District of Wisconsin returned
a one-count indictment against him. The federal indictment
charged Mr. Strobel with violating 18 U.S.C. § 922(g)(1), the
federal felon in possession of a firearm statute. In September
2019, Mr. Strobel pleaded guilty in the district court to the
single § 922(g)(1) charge. A month later, Mr. Strobel reached
a global resolution of the state charges against him that pro-
vided for a term of six years’ imprisonment and for six
years’ supervised release.
In preparation for Mr. Strobel’s federal sentencing hear-
ing, the Probation Office prepared a Presentence Report
(“PSR”). The Government and Mr. Strobel both objected to a
part of the base offense level calculation, an issue immaterial
to this appeal. Mr. Strobel also objected to a part of his crim-
inal history calculation, also immaterial here. The Probation
Office therefore filed a revised PSR, which we will refer to as
the PSR, for simplicity. As part of the PSR, the Probation Of-
fice proposed a supervision plan that included three manda-
tory, twelve standard, and three special conditions of super-
vised release, as well as justifications for the standard and
special conditions.1 Neither Mr. Strobel nor the Government
objected to any of the proposed conditions of supervised re-
lease.2
At Mr. Strobel’s federal sentencing hearing, which took
place after he was sentenced in state court, the district court
calculated his advisory guidelines range as 30 to 37 months’
1 R.21 at 32–36.
2 R.22.
4 No. 20-1092
imprisonment. The main issue at the hearing was whether to
run Mr. Strobel’s federal sentence concurrent or consecutive
to his six-year state sentence. After hearing from counsel and
Mr. Strobel, the district court imposed a below-guidelines
sentence of one year and one day, to run consecutive with
Mr. Strobel’s state sentence. The district court then, after not-
ing the lack of objections to the term of supervised release
recommended in the PSR, imposed a term of three years’
supervised release.
The district court turned next to the conditions of
Mr. Strobel’s supervised release. Observing that neither par-
ty had objected to the conditions included in the PSR, the
district court asked defense counsel whether he had “any
concerns with th[e] conditions.”3 Defense counsel stated that
he did not have any concerns. The district court then asked
defense counsel whether he “[w]ould … like [the court] to
read [the conditions].”4 Defense counsel responded: “No,
sir.”5
Once the district court confirmed with defense counsel
that no further justification for the conditions was necessary,
the court addressed Mr. Strobel directly. The court assured
Mr. Strobel that, if needed, it could adjust his conditions of
supervised release by motion during his period of supervi-
sion.6 The court also noted the mandatory drug testing con-
3 Sent. Tr. at 29.
4 Id.
5 Id.
6 Id. at 30.
No. 20-1092 5
dition included in Mr. Strobel’s PSR. The court, however,
never imposed explicitly the conditions of supervised release
proposed in the PSR.
The court then concluded Mr. Strobel’s sentencing hear-
ing by summarizing the sentence, imposing the mandatory
$100 special assessment, waiving a fine, and informing
Mr. Strobel of his appellate rights. When asked if there was
“anything else [the court] need[ed] to address,” both defense
counsel and Government counsel answered that there was
not.7
After the district court concluded the sentencing hearing,
it issued a written judgment that included the fifteen stand-
ard and special conditions “that ha[d] been adopted by th[e]
court.”8 Those conditions, in turn, matched the ones includ-
ed in Mr. Strobel’s PSR. Also included in the judgment were
the three mandatory conditions included in the PSR and one
mandatory condition that was not. The new condition pro-
vided: “If this judgment imposes a fine or a restitution obli-
gation,” then Mr. Strobel would be subject to a payment
schedule.9 Because the district court did not impose any fine,
and restitution was inapplicable, the new mandatory condi-
tion had no bearing on Mr. Strobel.
After his federal sentencing hearing, Mr. Strobel learned
that because his federal sentence was consecutive to his state
sentence, it operated as a detainer while he served his state
7 Id. at 32.
8 R.30 at 3.
9 Id.
6 No. 20-1092
sentence. As a result, Mr. Strobel cannot take advantage of
certain programs offered in the Wisconsin state correctional
system that would reduce significantly his period of state
incarceration. Had the district court imposed the federal sen-
tence concurrent to Mr. Strobel’s state sentence, he would be
eligible for release earlier than he is now because his federal
sentence is consecutive.
Mr. Strobel timely filed this appeal seeking a resentenc-
ing. He does not, however, directly challenge the district
court’s decision to impose a consecutive sentence. Instead,
he submits that because the district court never imposed ex-
plicitly any conditions of supervised release, its subsequent
written judgment is inconsistent with its oral pronounce-
ment of sentence. This inconsistency, Mr. Strobel contends,
requires the vacation of his sentence and a remand for resen-
tencing. Mr. Strobel asks us to structure the mandate to
permit the district court to reconsider its decision to run his
federal sentence consecutive to his state sentence.
II
DISCUSSION
The general principles governing our resolution of this
case are well-established. ‘‘If an inconsistency exists between
an oral and the later written sentence, the sentence pro-
nounced from the bench controls.” United States v. Alburay,
415 F.3d 782, 788 (7th Cir. 2005) (quoting United States v. Bo-
nanno, 146 F.3d 502, 511 (7th Cir. 1998)). But when there is no
inconsistency, there is no need for us to upset the district
court’s sentence. We review de novo alleged claims that
there is an inconsistency between a district court’s oral pro-
No. 20-1092 7
nouncement of sentence and its written judgment.10 See
United States v. Fisher, 943 F.3d 809, 816 (7th Cir. 2019).
A.
In United States v. Kappes, 782 F.3d 828, 838 (7th Cir. 2015),
we outlined “four general principles sentencing judges
should consider when imposing conditions of supervised
release.” First, we noted the importance of advance notice to
the defendant of the conditions under consideration. Id. Sec-
ond, we stated that judges “need to justify the conditions
and the length of the term at sentencing by an adequate
statement of reasons, reasonably related to the applicable
§ 3553(a) factors.” Id. at 839. Third, we highlighted the “goal
of imposing only specific, appropriately-tailored condi-
tions.” Id. Finally, we emphasized “the requirement [that
judges] orally pronounce all conditions, with the written
judgment only clarifying the oral pronouncement in a man-
ner that is not inconsistent with an unambiguous oral provi-
sion.” Id. Mr. Strobel’s challenge implicates the fourth prin-
ciple; he does not suggest that he lacked advance notice of
the conditions, nor does he contend that the conditions are
overbroad or imposed without justification.
The oral pronouncement rule we outlined in Kappes pre-
vents the sentencing court from imposing a condition of su-
pervised release without affording the defendant a chance to
object. See United States v. Bloch, 825 F.3d 862, 871–72 (7th Cir.
2016). A defendant can waive this oral pronouncement rule.
See id. at 872. Indeed, when the defendant has an opportuni-
10 The district court exercised its jurisdiction under 18 U.S.C. § 3231. We
exercise ours under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
8 No. 20-1092
ty to review with counsel the proposed conditions of release
and the justifications for them before the sentencing hearing,
there is often little point in insisting on a full recitation of the
conditions at the hearing. Id. at 872–73. In such a situation,
and with a defendant’s knowing and intelligent waiver, the
sentencing court can incorporate by reference the conditions
previously reviewed by the defendant at the sentencing
hearing. A defendant’s earlier review satisfies the principles
we articulated in Kappes. Id. The court’s subsequent written
judgment, then, only needs to match the conditions it orally
incorporated by reference during the sentencing hearing. See
id.Proceeding in this fashion does no violence to the basic
rule that if a written judgment is inconsistent with the
court’s oral pronouncement of sentence, the oral pro-
nouncement controls, and the written judgment “should be
amended to reflect the oral sentence.” Fisher, 943 F.3d at 816
(citing Bonanno, 146 F.3d at 511). As we pointed out explicit-
ly in Fisher, not every difference between a written judgment
and an oral pronouncement presents an inconsistency. Id.When the oral pronouncement of a condition of supervised
release is ambiguous or broad, the written judgment some-
times can clarify the oral pronouncement.11 Id. But when the
11 Our cases exemplify the principle that not every difference is an in-
consistency. In United States v. Baker, 755 F.3d 515, 522 (7th Cir. 2014), the
district court’s oral pronouncement required that the defendant make
certain payments “as directed.” The subsequent written judgment speci-
fied who could direct payments. Id. On appeal, we observed that the
written order simply clarified the oral pronouncement; the two were not
inconsistent. Id. at 528 n.2. Likewise, in United States v. Fisher, 943 F.3d
809, 816–17 (7th Cir. 2019), the district court’s oral pronouncement in-
(continued … )
No. 20-1092 9
written judgment includes new conditions or conditions that
are irreconcilable with the district court’s unambiguous oral
pronouncement, then we must vacate the written judg-
ment.12
Mr. Strobel’s submission is simple: the district court nev-
er imposed explicitly any conditions of supervised release
during oral pronouncement, so all the conditions included in
the written judgment are inconsistent with the oral pro-
nouncement. Therefore, Mr. Strobel argues, we should va-
cate his sentence and remand for the district court to resen-
tence him. And, if we are going to order resentencing based
on the conflicting conditions, Mr. Strobel asks us also to al-
( … continued)
cluded a condition prohibiting the use of “psychoactive substances.” In
its written order, the district court included a parenthetical after the term
“psychoactive substances,” listing examples of such substances. Id. As in
Baker, we said that the list of examples, although not included in the oral
pronouncement, simply clarified an ambiguous term used in the oral
pronouncement. Id.12 Our case law provides several examples of inconsistent written judg-
ments. In United States v. Johnson, 765 F.3d 702, 710–11 (7th Cir. 2014), the
district court unambiguously imposed several standard conditions dur-
ing its oral pronouncement of sentence. When it issued the written
judgment, however, the district court included several additional stand-
ard conditions that it had not included in its oral pronouncement. Id. at
711. Because those additional standard conditions appeared for the first
time in the written judgment, we vacated the written judgment and or-
dered a limited remand. Id. Along the same lines, in United States v. Albu-
ray, 415 F.3d 782, 788 (7th Cir. 2005), we vacated a written judgment that
imposed “immediate deportation,” because that aspect of the written
judgment was nowhere to be found in the district court’s unambiguous
oral pronouncement.
10 No. 20-1092
low the district court to reconsider its decision to run his
federal sentence consecutive to his state sentence.
A review of the entire sentencing transcript assures us
that the district court upheld the principles we set out in
Kappes and Bloch. First, the district court explicitly imposed
the three-year term of supervised release, which we presume
would come with conditions attached. Second, the district
court asked whether either party had objections to the condi-
tions listed and justified in the PSR; neither raised any objec-
tions. Third, the district court asked whether Mr. Strobel
wanted a full recitation of the conditions; Mr. Strobel de-
clined. Fourth, the district court discussed the drug testing
condition with Mr. Strobel and assured him that the court
could amend the conditions of supervised release down the
line, if appropriate. Finally, at the end of the hearing, the dis-
trict court asked if there was anything else it needed to cov-
er; both parties said there was not. The written judgment
confirms our reading of the sentencing transcript, because
the judgment references the conditions of supervised release
that the court “adopted” at the hearing.13
B.
We are left, then, with one situation to address—the con-
dition related to paying a fine and restitution. This condition
appears in the written judgment, but not the PSR. As we
noted earlier, the general rule is that a written judgment
cannot add new conditions to what was included in the
court’s oral pronouncement. Our decision in United States v.
Anstice, 930 F.3d 907 (7th Cir. 2019), provides, however, an
13 R.30 at 3.
No. 20-1092 11
exception relevant to Mr. Strobel’s case. In Anstice, the dis-
trict court failed to mention five conditions during its oral
pronouncement that it later included in its written judgment.
Id. at 908. On appeal, we noted that three of the omitted
conditions were mandatory—in other words, conditions re-
quired by statute—and two were discretionary. Id. at 909–10.
We held that the district court’s failure to mention the man-
datory conditions during its oral pronouncement did not
impact their applicability to the defendant. Id. at 909. Be-
cause a statute made those conditions mandatory, the sen-
tencing court “had no discretion regarding whether to im-
pose them.” Id. They applied because Congress said so.
The discretionary conditions were another matter.14 Id. at
909–10. Because the decision whether to impose those condi-
tions is left to the sentencing court’s discretion, their inclu-
sion in the written order impermissibly conflicted with their
absence during oral pronouncement. See id. at 910. We there-
fore vacated the conflicting discretionary conditions includ-
ed in the written judgment and remanded to allow the dis-
trict court a chance to reconsider those conditions. Id.In Mr. Strobel’s case, the single condition in the written
judgment that did not appear in the PSR reads:
If this judgment imposes a fine or
a restitution obligation, it shall be
14 The two discretionary conditions included in the written judgement
but omitted during oral pronouncement were that the defendant (1) re-
port to the probation office within seventy-two hours of release from
prison, and (2) not possess a firearm. United States v. Anstice, 930 F.3d
907, 909–10 (7th Cir. 2019).
12 No. 20-1092
a condition of supervised release
that defendant pay any such fine
or restitution that remains un-
paid at the commencement of the
term of supervised release in ac-
cordance with the Schedule of
Payments set forth in the Finan-
cial Penalties sheet of this judg-
ment.15
Since that condition is in the written judgment but was
not part of the oral pronouncement, it is inconsistent with
the district court’s oral pronouncement (which adopted the
PSR’s proposed conditions of supervised release).
Mr. Strobel concedes, correctly, that the portion of the condi-
tion regarding restitution payment is mandatory.16 Under 18
U.S.C. § 3583(d), individuals on supervised release who are
subject to restitution orders must make payments in accord-
ance with 18 U.S.C. §§ 3663 and 3663A, the statutory restitu-
tion scheme. In the Sentencing Guidelines’ provision on
conditions of supervised release, the Sentencing Commis-
sion included a similar mandatory condition. See U.S.S.G.
§ 5D1.3(a)(6) (citing 18 U.S.C. § 3572(d)). Under our decision
in Anstice, therefore, the restitution condition presents no
reason for resentencing.
Mr. Strobel suggests, however, that the portion of the
condition involving fine payment is not mandatory. He
points out that § 3583(d) does not mention fines in the same
15 R.30 at 3.
16 See Appellant’s Reply Br. 5.
No. 20-1092 13
way that it mentions restitution. In his view, although the
Sentencing Commission included in the Guidelines a man-
datory condition regarding fines that is consistent with the
one at issue here,17 that condition cannot be considered
mandatory because it lacks specific statutory authorization.
We need not resolve this issue today. Even if the portion
of the condition that relates to fines is not mandatory, it is
still not inconsistent with the court’s oral pronouncement
under the circumstances of this case. In Anstice, the discre-
tionary conditions that appeared for the first time in the
written judgment required that the defendant report to pro-
bation within a certain time after release from prison and re-
frain from possessing a firearm. 930 F.3d at 909–10. Thus, the
17 See U.S.S.G. § 5D1.3(a)(5) (“If a fine is imposed and has not been paid
upon release to supervised release, the defendant shall adhere to an in-
stallment schedule to pay that fine (see 18 U.S.C. § 3624(e)).”). In relevant
part, the statute referenced in the Sentencing Guidelines’ mandatory
condition reads:
Upon the release of a prisoner by the
Bureau of Prisons to supervised release,
the Bureau of Prisons shall notify such
prisoner, verbally and in writing, of the
requirement that the prisoner adhere to
an installment schedule, not to exceed 2
years except in special circumstances, to
pay for any fine imposed for the offense
committed by such prisoner, and of the
consequences of failure to pay such
fines under sections 3611 through 3614
of [Title 18].
18 U.S.C. § 3624(e).
14 No. 20-1092
two conditions at issue in Anstice placed actual legal obliga-
tions on the defendant. Mr. Strobel’s situation is meaningful-
ly different. During Mr. Strobel’s sentencing hearing, the dis-
trict court imposed explicitly “no fine.”18 Because the fi-
ne-related portion of the condition at issue is dependent on
the imposition of a fine—“[i]f this judgment imposes a fi-
ne”—it does not conflict with the district court’s oral pro-
nouncement of Mr. Strobel’s sentence.19 Put another way, the
condition’s discussion of how and when to pay a fine is a
nullity since there is no fine for Mr. Strobel to pay. Thus, we
have no reason to require the district court to resentence
Mr. Strobel on account of that condition.
Conclusion
To be sure, we expect district courts to impose explicitly
conditions of supervised release during oral pronouncement
of sentence. Yet we recognize, too, that by their very nature,
spoken judgments are more prone to error or omission than
written judgments. In past cases where we vacated a sen-
tence due to inconsistency between oral pronouncement and
the written judgment, we have not demanded formalism for
formalism’s sake. Instead, we have ordered remand only
when necessary to preserve the principles of notice and op-
portunity to object.
18 Sent. Tr. at 31; see also R.30 at 5 (written judgment stating that “[t]he
defendant does not have the means to pay a fine under [U.S.S.G.]
§ 5E1.2(c) without impairing his ability to support himself upon release
from custody so I will impose no fine.”).
19 R.30 at 3.
No. 20-1092 15
Nothing in this case offended those bedrock principles.
Mr. Strobel had ample notice and had no objection at sen-
tencing (and has no objection now) to any of the conditions
of supervised release. When we read the sentencing hearing
transcript as a whole, it is clear that the district court im-
posed the conditions of supervised release included in
Mr. Strobel’s PSR. Because the district court’s written judg-
ment does not impermissibly conflict with those conditions,
there is no basis for us to order resentencing. Accordingly,
we affirm Mr. Strobel’s sentence.
AFFIRMED
16 No. 20-1092
ROVNER, Circuit Judge, dissenting. The district court
made a straightforward mistake and there is a straightfor-
ward, if inconvenient, solution: vacate the judgment and re-
mand for a new sentencing hearing at which the court can de-
clare its decision with respect to the conditions of supervised
release. A defendant has a right to oral pronouncement of the
sentence, including any conditions of supervised release that
the court intends to impose. See United States v. Sanchez, 814
F.3d 844, 847 (7th Cir. 2016); United States v. Kappes, 782 F.3d
828, 862 (7th Cir. 2015); 18 U.S.C. § 3553(c). I agree with my
colleagues that Strobel had notice of the proposed conditions,
made no objection to those conditions, and waived the read-
ing of the conditions in court. He did not waive his right to
oral pronouncement of the sentence. One can infer from the
record that the court meant to adopt the conditions as pro-
posed and justified in the pre-sentence report, and it would
have been sufficient had the court simply voiced that intent.
See United States v. Anglin, 846 F.3d 954, 968-69 (7th Cir.), cert.
granted & j. vacated on other grounds, 138 S. Ct. 126 (2017). It did
not. When the time came to announce a decision as to condi-
tions of supervised release, the court said nothing. The result
is that the written judgment conflicts with the sentence as an-
nounced at the sentencing hearing. Under these circum-
stances, the oral pronouncement of the sentence controls. E.g.,
Sanchez, 814 F.3d at 847-48. I appreciate my colleagues’ effort
to avoid the burdens of a remand by marshaling the five fac-
tors suggesting that Strobel was not prejudiced by the court’s
omission. Ante at 10. The problem, as I see it, is that our effort
to excuse the omission in this case invites future litigation
over whether similar omissions can be overlooked based on
the facts of each case and their similarity to or divergence
from the facts presented here. On an elemental aspect of
No. 20-1092 17
sentencing, a bright-line rule, strictly enforced, strikes me as
the better approach. I would remand for re-sentencing and
leave it to the district judge’s discretion whether, as Strobel
asks, to use the occasion to re-visit the separate question of
whether the federal sentence should run consecutively to the
state sentence.
I respectfully dissent.