Opinion
23-2657
08-19-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT S. ANDERSON, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued August 6, 2024
Appeal from the United States District Court for the Central District of Illinois. No. 2:20-CR-20022-001 Michael M. Mihm, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge AMY J. ST. EVE, Circuit Judge JOSHUA p. KOLAR, Circuit Judge
ORDER
Robert Anderson, who was convicted under 18 U.S.C. § 2422(b) of attempted enticement of a minor, appeals his sentence. He seeks to strike a condition of supervised release that prohibits him from having contact with any sex offender. He argues that this condition ("Condition 15") is unconstitutionally vague and overbroad, and results in a duplicative, and therefore unnecessary, restraint on his liberty. He further contends that the court imposed the conditions of supervised release without a proper discussion of the sentencing factors under 18 U.S.C. § 3553(a). We vacate and remand to the district court with instructions to modify Condition 15.
Background
In 2020, Anderson was charged with attempted enticement of a minor after he drove to a gas station to pick up a 15-year-old girl, intending to return to her home and engage in sexual activity. In fact, FBI agents had posed as the young girl online; they met Anderson at the gas station to arrest him. Anderson pleaded not guilty and proceeded to a jury trial. The jury found him guilty, but we later reversed his conviction and ordered a new trial because the district court had erroneously prohibited Anderson from presenting an entrapment defense. See United States v. Anderson, 55 F.4th 545, 560 (7th Cir. 2022). After a new trial in May 2023, the jury again found him guilty.
In anticipation of Anderson's sentencing, the probation officer prepared a presentence investigation report (PSR) and included as a proposed discretionary condition of supervised release that Anderson participate in a sex offender treatment program ("Condition 6"). Because that program would prohibit Anderson from having contact with any sex offender outside of treatment, the probation officer concluded there was no need for a separate condition barring contact with other sex offenders. In the addendum to the PSR, the officer further explained that the Central District of Illinois typically does not recommend a condition prohibiting contact with certain persons unless "unique circumstances" require it (such as prior criminal activity with convicted felons), and here there was nothing to suggest that unique circumstances existed.
The government objected to the omission of a no-contact condition. It argued that including the prohibition as a condition of supervised release would make enforcement more efficient because, if Anderson had contact with a sex offender, the probation officer could seek revocation directly instead of waiting until Anderson was discharged from sex-offender treatment for breaking the rules (and thus violating the condition requiring treatment).
At the sentencing hearing, the district court heard arguments from both parties and agreed with the government. As its rationale, the court stated that adding Condition 15 was "important," that no harm stemmed from its inclusion, and that the condition was needed if the period of supervision extended beyond the period of treatment. The court then sentenced Anderson to 120 months in prison and 5 years of supervised release.
Analysis
On appeal, Anderson challenges the inclusion of Condition 15 on constitutional and procedural grounds.
A. Constitutional Arguments
Anderson asserts that Condition 15 is unconstitutionally vague and overbroad for two reasons: The condition lacks an explicit scienter requirement, and it does not define "contact." We review the constitutionality of a condition of supervised release de novo. See United States v. Shannon, 851 F.3d 740, 743 (7th Cir. 2017).
The government concedes that the lack of a scienter requirement renders Condition 15 unconstitutionally overbroad, and so it admits that one should be added. Prohibiting both knowing and unknowing contact imposes strict liability and renders the condition overbroad. See United States v. Kappes, 782 F.3d 828, 852 (7th Cir. 2015). And unlike conditions that prohibit contacting people of a certain age, for example, when "sensory cues" allow a defendant to estimate age with "enough accuracy," see United States v. Edwards, 944 F.3d 631, 638 (7th Cir. 2019), here, there are no sensory cues that enable Anderson to identify another person as a sex offender. Instead, the condition should prohibit Anderson from contact with a person whom he knows or reasonably should know is a sex offender. See, e.g., United States v. Thompson, 777 F.3d 368, 377 (7th Cir. 2015).
Second, Anderson contends that prohibiting "contact" is vague because he cannot discern whether passing or incidental contact-such as routine transactions with cashiers-is prohibited. The government responds that we already held in United States v. Miller, 829 F.3d 519, 530 (7th Cir. 2016), that a condition need not define the method or nature of prohibited "contact." Regardless, it continues, adding a scienter requirement will eliminate any vagueness associated with "contact."
The government has the better argument. Anderson's concern with the lack of an exception for "normal commercial business" (which could itself trigger a debate over meaning) or some other exception for incidental contact is addressed sufficiently by prohibiting only "knowing" contact with a sex offender. His analogy to an incidental contact exception referenced in two cases-Thompson and Miller-is off-base, assuming a scienter requirement is imposed. In Thompson, we warned that failing to add exceptions to a condition prohibiting any contact with minors was "troubling." 777 F.3d at 376. And in a case factually similar to Thompson, we affirmed a "normal commercial business" exception. Miller, 829 F.3d at 529-30. But with the added scienter requirement, Anderson would not be subject to strict liability, in contrast to the defendants in Thomspon and Miller. Further, another exception would not serve a meaningful purpose here; a separate scienter requirement already prevents Anderson from unwittingly violating the condition, and a "commercial business" exception would do nothing to narrow down "contact" because a person's sex-offender status is not visible or obvious.
B. Procedural Arguments
Anderson next contends that the district court failed to provide required justifications under 18 U.S.C. § 3553(a) for imposing Condition 15. See 18 U.S.C. § 3583(c), (d). The government maintains that the court's brief statement justified the condition and that reference to the § 3553(a) factors is not required when imposing a contested condition of supervised release. Because an adequate justification for the sentence, including the conditions of supervised release, is required as a procedural matter, we review de novo whether the district court sufficiently explained its decision. See Kappes, 782 F.3d at 864.
When imposing supervised release, sentencing courts must attach the mandatory conditions-including some that are offense-specific-that are set forth in the statute governing supervised release, 18 U.S.C. § 3583(d), and in § 5D1.3(a) of the Sentencing Guidelines (with exceptions). The district court may also impose discretionary, or special, conditions. Section 5D1.3(a) and 18 U.S.C. § 3563(b) suggest several possibilities, but a court may create "any other condition it considers to be appropriate" if it is "reasonably related" to the statutory sentencing factors in § 3553(a)(1) and § 3553(a)(2)(B)-(D) (the nature and circumstances of the offense, the defendant's history and characteristics, the need to protect the public, and the need to provide educational training or other correctional treatment). Discretionary conditions also must cause "no greater deprivation of liberty than is reasonably necessary" and be consistent with policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d); see also United States v. Morgan, 987 F.3d 627, 633-34 (7th Cir. 2021) (citations omitted).
Accordingly, we have explained that a sentencing court must justify discretionary conditions of supervised release "by an adequate statement of reasons, reasonably related to the applicable § 3553(a) factors." Kappes, 782 F.3d at 839, 845 (citing United States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014)). The court cannot merely say that a condition is justified. See United States v. Siegel, 753 F.3d 705, 712 (7th Cir. 2014). But the court "need not address every factor in checklist fashion, explicitly articulating its conclusions regarding each one" or "give a speech about each condition." Kappes, 782 F.3d at 845-46 (citations omitted).
The district court sufficiently explained the § 3553(a) factors supporting its decision to impose Condition 15. The court said that Condition 15 was "important," harmless, and prudent in case the term of supervision outlasted sex-offender treatment. This explanation adequately addresses Condition 15's rehabilitative purpose: In case Anderson's supervised release period outlasts his treatment program, the extended prohibition on his contact with sex offenders will allow for a more effective rehabilitative process, where Anderson will not be persuaded to reoffend. See id. § 3553(a); Farmer, 755 F.3d at 854-55. Indeed, the explanation for the previous iteration of the proposed condition in this case (barring contact with other "felons"), which appeared in the first two versions of the PSR, suggests as much:
Associating with others who are engaged in criminal activity or, in some instances, who have been convicted of a felony, increases the defendant's risk of reoffending. Limiting contact with others who may place the defendant at risk of reoffending is an important factor in reducing the defendant's risk of violating conditions of supervised release and maintaining a law abiding lifestyle. The defendant's ability to remain in society and avoid risk for himself by limiting contact with others who might place him at risk will be a key component in determining his success while being supervised.
Therefore, the district court adequately justified Condition 15 with reference to the § 3553(a) factors.
C. Remedy
The final issue is the scope of the remedy. Neither party argues for a full resentencing. Anderson urges that a remand is altogether unnecessary; he contends that we can modify the judgment sua sponte, see 28 U.S.C. § 2106, and should do so by excising Condition 15. The government asserts that we should vacate Condition 15 and order a remand with instructions to the district court to add a scienter element.
A modification or remand limited to modifying Condition 15, and not a full resentencing, is proper because there is no reason to think that the rest of Anderson's sentence would change as a result of altering one condition of his supervised release. See United States v. Wylie, 991 F.3d 861, 865 (7th Cir. 2021). This is a risk if the court would have changed another part of the sentence (e.g., imposing more prison time or longer supervised release or other more onerous conditions) had it agreed not to impose Condition 15. See id. The record gives no hint of this implausible scenario. Indeed, Anderson does not even consider the possibility.
We believe that the district court is in the best position to modify the judgment. Because the district court erred when it imposed Condition 15 without a scienter requirement, we VACATE that portion of the judgment and REMAND for proceedings consistent with this opinion. The remand is limited to modifying Condition 15 to include a scienter requirement.