Sentencing – Supervised Release

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7^th Circuit Court of Appeals

Case Name: United States of America v. Darick Hudson

Case No.: 18-1130

Officials: FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: Sentencing – Supervised Release

Darick Hudson pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Hudson challenges two aspects of the written judgment entered by the district court, each relating to conditions of his supervised release.

First, Hudson asserts a condition prohibiting “excessive use of alcohol” must be clarified, as “excessive” is not defined and therefore vague. As a matter of common practice, the presentence investigation report (“PSR”) includes a number of potential conditions of supervised release, with radio buttons the probation officer checks to indicate those recommended to the district court at sentencing.

Next, Hudson challenges a condition restricting his travel during supervised release. At the sentencing hearing, the district court stated, “Once Mr. Hudson is released from custody, he will be directed to remain within the jurisdiction in which he is being supervised, unless he is granted permission to leave.” Hudson’s attorney requested the condition include Indiana because that is where Hudson’s wife lives, expressing some uncertainty himself about “what the districts are there.” In response, the district court stated this condition would “include the district where [Hudson’s] wife resides as well.” But the written judgment simply states, “(14) you shall remain within the jurisdiction where you are being supervised, unless granted permission to leave by the court or a probation officer.”

Before concluding, we note two other points. First, the government’s argument that Hudson somehow waived his objections to the above conditions is without merit. Waiver requires an intentional relinquishment of a known right, and “we are cautious about interpreting a defendant’s behavior as intentional relinquishment.” United States v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018). Here, both conditions in the written judgment diverge from the district court’s oral sentence. During the sentencing hearing, defense counsel reasonably understood the district court as incorporating the definition of “excessive use of alcohol” employed by the PSR.

Second, we remind future litigants of Rule 35(a) of the Federal Rules of Criminal Procedure, which provides, “the court may correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days of sentencing. This appeal might have been avoided had the written judgment been reviewed promptly and the inconsistencies brought to the district court’s attention.

Therefore, we REMAND WITH INSTRUCTIONS that the written judgment be amended to include: (1) for purposes of discretionary condition number 7 of Hudson’s supervised release, a definition of “excessive use of alcohol” as having a blood alcohol concentration greater than 0.08, and (2) for purposes of discretionary condition number 14, the language, “you shall remain within the judicial district where you are being supervised and the judicial district in which your wife resides, unless granted permission to leave by the court or a probation officer.” Subject to those two corrections, we AFFIRM the judgment of the district court in all other respects.

Reversed and Remanded in part. Affirmed in part.

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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.