Sophisticated Means Sentence Enhancement

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7^th Circuit Court of Appeals

Case Name: United States of America v. Clark Bickart and Jerlene Bickart

Case No.: 15-2890; 15-2946

Officials: BAUER, POSNER, and FLAUM, Circuit Judges

Focus: Sophisticated Means Sentence Enhancement

Third Party notification requirement as a condition of supervised release is inherently vague.

“Nonetheless, Jerlene argues that the revised condition re‐ mains vague under Thompson and Kappes. These cases found a similar condition that lacked a court‐approval requirement vague because there was “no indication of what is meant by ‘personal history’ and ‘characteristics’ or what ‘risks’ must be disclosed to which ‘third parties.’” Kappes, 782 F.3d at 849 (quoting Thompson, 777 F.3d at 379). The government argues that because, in this case, notification requires the court’s prior approval and gives defendants an opportunity to respond, the condition is permissible. Although the district court’s modification softens the con‐ sequences of the vagueness we identified in Thompson and Kappes, the underlying vagueness remains. We disapproved of the condition in Thompson and Kappes because we thought that “personal history,” “characteristics,” “risks,” and “third parties,” were impermissibly vague. The modified condition in this case still contains these vague terms and offers no additional guidance as to their meaning. We appreciate the district court’s effort to rescue this condition by adding a procedural mechanism, but we believe that it is appropriate to tackle vagueness head‐on by defining or removing vague terms. As we noted in Kappes, “[p]resumably, the meaning of these terms would change from defendant to defendant, which makes definitions particularly important with this condition.” 782 F.3d at 849. Therefore, the district court abused its discretion by imposing this condition, and we must remand for resentencing of Jerlene with respect to this condition”

Vacated and Remanded as to third party notification condition

Affirmed in every other respect

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.