United States v. Cynthia Hobbs ( 2016 )


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  •                   United States Court of Appeals
                                 For the Eighth Circuit
                             ___________________________
    
                                     No. 16-1956
                             ___________________________
    
                                  United States of America
    
                             lllllllllllllllllllll Plaintiff - Appellee
    
                                                v.
    
                                    Cynthia Louise Hobbs
    
                           lllllllllllllllllllll Defendant - Appellant
                                           ____________
    
                          Appeal from United States District Court
                       for the Southern District of Iowa - Des Moines
                                       ____________
    
                               Submitted: September 21, 2016
                                 Filed: December 14, 2016
                                      ____________
    
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                                 ____________
    
    SMITH, Circuit Judge.
    
          A special condition of Cynthia Hobbs’s supervised release prohibits her from
    “direct, indirect, or electronic contact” with her husband. Because the record does not
    support this sweeping restriction on her important constitutional right of marriage, we
    vacate and remand for resentencing.
                                      I. Background
          In 2009, Hobbs and her husband were charged with aggravated identity theft
    and conspiring to commit bank fraud. They pleaded guilty. Hobbs was sentenced to
    56 months’ imprisonment and 5 years’ supervised release. Her husband was
    sentenced to 80 months’ imprisonment and 5 years’ supervised release. They were
    ordered jointly to pay approximately $18,000 in restitution.
    
           Hobbs entered supervision in November 2014. At first she did well. Then, in
    January 2016, probation moved to revoke her supervised release, alleging four
    violations of her release conditions. First, Hobbs moved from her registered address
    without telling her probation officer. Second, she failed to submit to a required
    urinalysis. Third, she left her job at McDonald’s without telling her probation officer.
    (These first three violations happened in January 2016.) And fourth, Hobbs stopped
    making restitution payments in August 2015, the month her husband was released.
    
           In April 2016, Hobbs appeared before the court and admitted the violations.
    Noting Hobbs’s cooperation, the government asked that her release be modified
    rather than revoked. The government also asked the court to impose a condition of
    “no contact with her husband.”
    
          The hearing focused on the no-contact issue. The court expressed concern that
    Hobbs’s violations were connected to her husband’s release. “My understanding from
    speaking with the probation officer and reviewing the record,” said the court, “is that
    Ms. Hobbs was doing very well on supervision when she was living independently
    and Mr. Hobbs was still incarcerated.” “And then,” the court went on, “this contact
    occurs with her spouse, and those positive steps forward cease and, in fact, she
    absconds from supervision. That time line seems to the court to be instructive.” A
    probation officer established Mr. Hobbs’s release date but did not establish that
    Hobbs had had any contact with her husband since his release.
    
    
    
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           The court then outlined its revocation sentence: 30 days’ imprisonment and no
    marital contact.1 The court emphasized the coincidence of Hobbs’s noncompliance
    and her husband’s release: “The court finds that the time line related to the release of
    her co-defendant and the introduction, reintroduction of her spouse, Jack Hobbs, into
    her home and her life . . . was one factor that appears to have contributed to the
    violations that occurred here.” The court acknowledged the constitutional
    implications of substantially restraining Hobbs’s marital liberties, but it considered
    the restrictions reasonably necessary for the remaining three-and-a-half years of her
    supervision.
    
           The court entered an order modifying Hobbs’s supervised release to include
    this condition:
    
          The defendant shall have no direct, indirect, or electronic contact with
          codefendant and husband, Jack Hobbs, during her term of supervised
          release.
    
    
    Hobbs asks us to vacate the condition.
    
                                         II. Discussion
           “A sentencing judge is afforded wide discretion when imposing terms of
    supervised release, and we review a decision to impose special terms of supervised
    release for abuse of that discretion.” United States v. Crume, 
    422 F.3d 728
    , 732 (8th
    Cir. 2005) (citation omitted). Sentencing discretion is cabined by statute. 18 U.S.C.
    § 3583(d). The applicable statute requires, as relevant here, two things. First, special
    supervised-release conditions must reasonably relate to the nature and circumstances
    of the offense, the defendant’s history and characteristics, deterring criminal conduct,
    protecting the public, and promoting the defendant’s correctional needs. 18 U.S.C.
    
    
          1
              Hobbs does not challenge her imprisonment.
    
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    §§ 3583(d)(1), 3553(a)(1), (2)(B)–(D); Crume, 422 F.3d at 733. And second, the
    conditions must not constrain the defendant’s liberty more than reasonably necessary
    to deter criminal conduct, protect the public, and promote her correctional needs. 18
    U.S.C. §§ 3583(d)(2), 3553(a)(2)(B)–(C); Crume 422 F.3d at 733.
    
           The sentencing court’s wide discretion notwithstanding, “we are particularly
    reluctant to uphold sweeping restrictions on important constitutional rights.” Crume,
    422 F.3d at 733. Currently, most sweeping restrictions seem to involve the Internet.
    See, e.g., United States v. West, 
    829 F.3d 1013
    , 1020–21 (8th Cir. 2016) (ban on
    creating websites overbroad); Crume, 422 F.3d at 733 (ban on Internet access
    overbroad). Others involve library access and the parent–child relationship. See, e.g.,
    United States v. Bender, 
    566 F.3d 748
    , 753 (8th Cir. 2009) (library access); United
    States v. Davis, 
    452 F.3d 991
    , 995 (8th Cir. 2006) (parent–child relationship). The
    sweeping restriction in this case involves another important constitutional
    right—marriage. Loving v. Virginia, 
    388 U.S. 1
    , 12 (1967).
    
           Because of the important constitutional interest at stake, Hobbs urges de novo
    review, citing United States v. Kelly, 
    625 F.3d 516
    , 520 (8th Cir. 2010). Kelly states
    that we review the constitutionality of a supervised-release condition de novo. Id.
    Some cases have cited Kelly for this point. See, e.g., United States v. Schaefer, 
    675 F.3d 1122
    , 1125 (8th Cir. 2012). Other cases, though, have addressed sweeping
    restrictions under the abuse-of-discretion standard. See, e.g., Crume, 422 F.3d at
    732–33. Because the condition here is an abuse of discretion, we do not decide
    whether the stricter de novo standard might apply.
    
           Hobbs asks us to vacate the no-contact condition because it is unconstitutional
    and because it violates the special-conditions statute, 18 U.S.C. § 3583(d), in two
    ways: (1) it is not reasonably related to the sentencing goals, and (2) it deprives her
    of more liberty than necessary to advance those goals. The government acknowledges
    that a no-contact order between spouses is a sweeping restriction on an important
    
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    constitutional right, but it argues that this record supports one. Upon review, we
    conclude that this record does not support one.
    
           The district court based its decision on “the time line related to the release of
    [Hobbs’s] co-defendant and the introduction, reintroduction of her spouse, Jack
    Hobbs, into her home and her life.” The hearing transcript is the only explanation of
    the court’s decision. And the only record facts at the hearing were Hobbs’s admitted
    violations and her husband’s release date, August 3, 2015. On that day, Hobbs made
    her last restitution payment. Five months later, she moved, left her job, and failed to
    provide a urinalysis, all without telling probation. But nothing in the record shows
    that Hobbs’s husband influenced her to defy her release conditions. Her lawyer
    attributed her failings to a tax-lien and holiday-induced drug relapse. He did mention
    that the Hobbses were co-defendants in a pending state case, but he did not tell the
    district court anything else about that case.
    
          On this record, then, the timeline-based decision was “pure speculation or
    assumption[].” Schaefer, 675 F.3d at 1124 (quoting United States v. Fenner, 
    600 F.3d 1014
    , 1027 (8th Cir. 2010)). The evidence did not justify effectively divorcing Hobbs
    from her husband during supervision to achieve any valid sentencing purpose. 18
    U.S.C. § 3583(d)(2). United States v. Smith, on which the district court relied, is not
    to the contrary. 
    436 F.3d 307
     (1st Cir. 2006). Smith upheld a special condition
    separating the defendant from his daughter after his efforts to contact her “produced
    both a state court restraining order and a trespass notice.” Id. at 312. The rationale
    was public protection. Id. That rationale simply does not apply here.
    
          Nor are the government’s legal authorities controlling or persuasive. United
    States v. Rodriguez upheld a special condition prohibiting the defendant from
    contacting her husband without probation’s approval (a notably less restrictive
    condition than a blanket no-contact order). 178 F. App’x 152, 159 (3d Cir. 2006). She
    had committed her crimes—lying in a gun purchase—at her husband’s behest. Id. at
    
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    158. The rationale was reducing recidivism and protecting the public. Id. But nothing
    here suggests that Hobbs’s husband induced her crimes. The presentence report
    declares them “equally culpable.” The government’s other main case, State v. Tanner,
    is closer. 
    727 S.E.2d 814
     (W. Va. 2012). Tanner upheld a parole condition separating
    a couple who made and used methamphetamine together. Id. at 816. The rationale
    was reducing recidivism. Id. at 821. Certainly the Hobbses were criminals in concert.
    But the condition here was unrelated to the underlying offense, and the record does
    not connect Hobbs’s violations to her husband’s release, apart from the timing of her
    August 2015 violation. The evidence, then, is insufficient to support the restriction.
    
           “[T]he state is inserting itself into [Hobbs’s] marital relationship in an overly
    broad way, and the condition thus involves a greater deprivation of liberty than is
    reasonably necessary.” United States v. Chong, 217 F. App’x 637, 639 (9th Cir.
    2007); see also United States v. Napulou, 
    593 F.3d 1041
    , 1046–47 (9th Cir. 2010)
    (vacating a condition barring contact with the defendant’s “life partner”). There is no
    suggestion, either, that the district court considered more narrowly tailored
    alternatives. It therefore abused its discretion. Because we vacate the condition under
    § 3583(d)(2), we do not consider whether it violates § 3583(d)(1) or is per se
    unconstitutional.
    
            Hobbs asks us to remand with a closed record. When the government has had
    a full and fair opportunity to present its evidence, we follow “‘the traditional path’ of
    limiting [it] to one bite at the apple.” United States v. Thomas, 
    630 F.3d 1055
    , 1057
    (8th Cir. 2011) (quoting United States v. King, 
    598 F.3d 1043
    , 1050 (8th Cir. 2010)).
    The legal issue here was clear, and the government’s failure of proof is inexcusable.
    United States v. Johnson, 
    710 F.3d 784
    , 790 (8th Cir. 2013). It moved to revoke
    Hobbs’s release in late January 2016. The hearing was in early April. The government
    had ample opportunity to build its case. The transcript indicates that the parties knew
    the no-contact issue was coming. The district court had even researched it. “Because
    
    
    
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    the government knew of its obligation and inexcusably failed to meet it, this case is
    remanded without the opportunity to expand the record.” Id.
    
                                     III. Conclusion
          Accordingly, we vacate the no-contact condition and remand for resentencing.
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