United States v. Christopher Anstice ( 2019 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 18‐3171
    UNITED STATES OF AMERICA,
    Plaintiff‐Appellee,
    v.
    CHRISTOPHER ANSTICE,
    Defendant‐Appellant.
    ____________________
    Appeal from the United States District Court for the
    Western District of Wisconsin.
    No. 3:18‐cr‐50 — William M. Conley, Judge.
    ____________________
    ARGUED MAY 22, 2019 — DECIDED JULY 19, 2019
    ____________________
    Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
    SCUDDER, Circuit Judge. Christopher Anstice pleaded
    guilty to conspiring to distribute methamphetamine and was
    sentenced to ten years’ imprisonment and five years’ super‐
    vised release. On appeal he challenges five conditions of su‐
    pervised release appearing in the written judgment of convic‐
    tion that the district court did not announce orally at sentenc‐
    ing. Because three of these challenged conditions are
    2                                                  No. 18‐3171
    mandated by federal statute and two are discretionary, we af‐
    firm in part and otherwise remand.
    I
    Prior to sentencing the probation office prepared a Presen‐
    tence Investigation Report, commonly referred to as a PSR.
    The PSR recommend a five‐year term of supervised release
    and included a proposed plan listing multiple conditions.
    Five conditions appeared under the label “mandatory.” The
    PSR also recommended a dozen or so discretionary condi‐
    tions, categorized as either standard or special conditions.
    Sentencing began with the district court confirming with
    Anstice that he had received the PSR and reviewed it with his
    counsel. After announcing Anstice’s ten‐year custodial sen‐
    tence, the court turned to supervised release, explaining that
    the law required a five‐year term. See 21 U.S.C. § 841(b). As
    for the conditions of supervised release, the district judge im‐
    posed all but one of the standard and special conditions, stat‐
    ing: “I do adopt Condition Nos. 1 through 10 [the standard
    conditions], and 12 through 14 [the special conditions], as pro‐
    posed and justified in the presentence report.” At no point,
    though, did the court address the five conditions the PSR cat‐
    egorized as “mandatory.”
    The ensuing written judgment, often shorthanded in fed‐
    eral criminal practice as the “J&C” (Judgment and Commit‐
    ment Order), included the five supervised release conditions
    that appeared as “mandatory” in the PSR. The J&C included
    these five conditions under the heading “Statutory Manda‐
    tory Conditions.” The J&C separately listed the standard and
    special conditions that the court had announced orally at sen‐
    tencing.
    No. 18‐3171                                                     3
    On appeal Anstice contends that the five conditions ap‐
    pearing as “Statutory Mandatory Conditions” in the written
    judgment were not orally imposed at sentencing and there‐
    fore are not part of his sentence.
    II
    We start from the familiar rule that “[i]f an inconsistency
    exists between an oral and the later written sentence, the sen‐
    tence pronounced from the bench controls.” United States v.
    Alburay, 
    415 F.3d 782
    , 788 (7th Cir. 2005) (quoting United States
    v. Bonanno, 
    146 F.3d 502
    , 511 (7th Cir. 1998)). And “any new
    conditions imposed in the later written judgment are incon‐
    sistent with the court’s oral order and must be vacated.”
    United States v. Johnson, 
    765 F.3d 702
    , 711 (7th Cir. 2014). John‐
    son provides a good example. The sentencing court there “un‐
    ambiguously announced several specific conditions of super‐
    vised release” and “did not include any statement as to
    whether other standard conditions would apply,” leading us
    to vacate the additional discretionary conditions that ap‐
    peared only in the written judgment. 
    Id. While our
    caselaw is clear that the oral sentence controls,
    we have never addressed whether the district court’s failure
    to announce conditions of supervised release made manda‐
    tory by statute—as opposed to non‐mandatory conditions—
    renders those conditions nullities. This case presents that
    question.
    While the district court’s written judgment characterized
    and listed each of the five conditions Anstice challenges as
    “Statutory Mandatory Conditions” it turns out that two of
    those conditions are neither statutory nor mandatory. Those
    two conditions—the requirement for Anstice to report to the
    4                                                    No. 18‐3171
    probation office within 72 hours of his release and the prohi‐
    bition on his possessing a firearm, destructive device, or other
    dangerous weapon—do not appear as mandatory conditions
    in 18 U.S.C. § 3583(d). Nor are we aware of any other source
    of law requiring the imposition of these two conditions.
    Resolving this appeal therefore requires that we distin‐
    guish between these two conditions—which are not required
    by statute—and the three other conditions included under the
    heading “Statutory Mandatory Conditions” in the written
    judgment. The latter three conditions do appear in § 3583(d)
    and thus are truly mandatory.
    A
    We begin with the three conditions required by § 3583(d)
    and properly characterized as mandatory in the written judg‐
    ment. Those conditions (1) prohibit Anstice from committing
    another federal, state, or local crime; (2) bar him from illegally
    possessing a controlled substance; and (3) require his cooper‐
    ation with the collection of a DNA sample.
    That these three conditions are statutorily required is im‐
    portant. It means that the sentencing court had no discretion
    regarding whether to impose them: they must be part of any
    term of supervised release. And, like all federal criminal de‐
    fendants, Anstice had notice he was subject to these manda‐
    tory conditions because they appear in § 3583(d). They were
    also included in the PSR, which Anstice confirmed at sentenc‐
    ing he had received and reviewed with his counsel.
    In these circumstances, we conclude that the three condi‐
    tions of supervised release mandated by § 3583(d) were val‐
    idly part of Anstice’s sentence even though the district court
    failed to announce them orally at sentencing. No circuit to
    No. 18‐3171                                                      5
    have considered this question has reached a contrary conclu‐
    sion. See, e.g., United States v. Vasquez‐Puente, 
    922 F.3d 700
    , 705
    (5th Cir. 2019); United States v. Drapeau, 
    644 F.3d 646
    , 656 (8th
    Cir. 2011); United States v. Napier, 
    463 F.3d 1040
    , 1043 (9th Cir.
    2006); United States v. Vega‐Ortiz, 
    425 F.3d 20
    , 22–23 (1st Cir.
    2005).
    B
    This brings us to the remaining two conditions of super‐
    vised release appearing as “Statutory Mandatory Conditions”
    in the written judgment. This listing was erroneous, as neither
    condition—that Anstice (1) report to the probation office
    within 72 hours of his release and (2) refrain from possessing
    a firearm, destructive device, or other dangerous weapon—
    appears in § 3583(d). Nor are they described as mandated by
    statute in the Sentencing Guidelines. See U.S.S.G. § 5D1.3(a).
    In short, these two conditions are discretionary.
    As commonplace and sensible as these two conditions
    may be across federal sentences, Congress has not mandated
    their imposition. If a district court does choose to impose
    them, they must be announced at sentencing. See 
    Johnson, 765 F.3d at 711
    . That did not happen here. To the contrary, the
    district court announced several other discretionary condi‐
    tions of supervised release at Anstice’s sentencing hearing
    without saying anything about these two conditions. So we
    have a circumstance where the oral sentence conflicts with the
    written sentence and therefore must vacate these two condi‐
    tions. See 
    id. The district
    court has ample authority to impose
    these conditions on remand. See id.; 18 U.S.C. § 3583(e)(2).
    6                                                  No. 18‐3171
    C
    With today’s decision, we emphasize that the sound and
    prudent approach is for the district court to orally pronounce
    all conditions of supervised release, even those mandated by
    statute. In recognizing that certain conditions are required by
    § 3583(d) and therefore necessarily part of any term of super‐
    vised release, we do not intend to displace this practice, which
    serves to confirm that the defendant is aware of the conditions
    to which he will be subject on supervised release.
    We end with an administrative observation regarding the
    written supervised release form contained in the standard‐
    form J&C (form AO 245 B) used in the Western District of Wis‐
    consin. The form erroneously includes as “Statutory Manda‐
    tory Conditions” two conditions highlighted in this opinion
    that are not required by § 3583(d)—specifically, the require‐
    ment for the defendant to report to the probation office within
    72 hours of release from custody and the prohibition on a de‐
    fendant possessing a firearm, destructive device, or other
    dangerous weapon while on supervised release. To allow the
    district court to modify the form and correct this error, we di‐
    rect our Clerk of the Court to send this opinion to the Clerk
    for the Western District of Wisconsin.
    For these reasons, we AFFIRM the district court’s imposi‐
    tion of the conditions of supervised release mandated by
    § 3583(d), VACATE the non‐mandatory additional conditions
    provided in the written judgment, and REMAND to allow the
    district court to modify and reconsider Anstice’s sentence
    with respect to the two non‐mandatory conditions of super‐
    vised release.