Sentencing – Supervised Release

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7^th Circuit Court of Appeals

Case Name: United States of America v. Solomon Smith, Jr.,

Case No.: 16-3575

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges

Focus: Sentencing – Supervised Release

Solomon Smith pleaded guilty to two counts of filing fraudulent federal tax returns. His appeal concerns only the supervised release portion of his sentence. He objects to two discretionary conditions imposed by the judge: one that forbids “excessive use” of alcohol, and one that obliges him to submit to visits from his probation officer at any reasonable time. Those visits may occur at his home, workplace, or any reasonable location that the officer designates. Smith, a teetotaler who stands convicted of tax fraud, views those conditions as unwarranted by his crime or character and ill-suited to the purposes of supervised release. He also asserts that a ban on excessive alcohol use is impermissibly vague.

Although there may be some substance to Smith’s complaints, the procedural history of this case complicates matters. After taking time to review the visitation condition, Smith’s attorney told the district court that it was reasonable. In so doing, the attorney waived Smith’s present objection that the court failed to provide an adequate rationale in support of the condition. As for the alcohol condition, a procedural error by the district court creates a problem, but one that we can fix on appeal. At Smith’s sentencing hearing, the district court purported to adopt, by reference to the presentence investigative report (PSR), a condition forbidding “excessive use” of alcohol. Importantly, the PSR explicitly defined the term “excessive use” to mean use that produces a blood alcohol concentration (BAC) in excess of 0.08%. Perhaps not coincidentally, that is the level used by the State of Illinois for purposes of its driving laws. See 625 ILCS 5/11-501(a)(1). But that objective benchmark was not mentioned in either the court’s oral pronouncement of the sentence or its later written judgment.

The limitation in the PSR thus fell by the wayside, and the undefined term “excessive use” that is currently in the judgment is both vague and, for a non-drinker, unjustified without some explanation. Nonetheless, we conclude that remand is unnecessary, because we find no other reversible error in the conditions of supervised release and we can amend the judgment so that the definition of “excessive use” reflects the court’s evident intent to incorporate the BAC of 0.08%. We affirm the district court’s judgment as corrected.

Affirmed

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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.