We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

5TH CIRCUIT SLAPS LIMITS ON RUNAWAY SUPERVISED RELEASE CONDITIONS

Just about everyone serving a federal sentence will find themselves on supervised release sooner or later. Given some of the loosey-goosey SR terms and arbitrary probation officers, it is little wonder that one out of three people on SR end up getting violated.

Jonathan Rivas-Estrada had three special SR conditions included in his sentence, that he had to surrender himself for deportation after serving his time, had to give requested financial information to his probation officer, and had to participate in (and pay for) drug testing and treatment. At the end of a long sentencing proceeding, the district judge glossed over those special conditions, which had been in his presentence report and to which Jonathan never objected. While they were not mentioned at sentencing, the special conditions appeared in Jonathan’s written judgment.

Last week, the 5th Circuit said it did not matter what was in his PSR or what he did not object to prior to sentencing. It held that when a defendant had no opportunity to object to special conditions at sentencing (because they were not read by the district judge), any such “unpronounced” special conditions must, upon remand, be stricken from the written judgment.

Meanwhile, in the 7th Circuit, Solomon Smith complained that an SR condition that he refrain from excessive alcohol use was not tailored to his offense (tax fraud) and was vague. The Circuit said he had waived the “tailoring” argument when his trial judge said he had no objections, but it held that the district court’s omission of a definition of what constituted “excessive” rendered the condition unduly vague. The district court originally proposed a BAC of 0.08%, but somehow dropped that from the final judgment. The Circuit said the written judgment should prevent uncertainty over what conditions or version of a condition the district court intend[s] to impose; liberty should not turn on guess-work.”

United States v. Rivas-Estrada, Case No. 17-40033 (5th Cir. Oct. 15, 2018)

United States v. Smith, Case No. 16-3575 (7th Cir. Oct. 16, 2018)

– Thomas L. Root