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United States v. Kappes

United States Court of Appeals, Seventh Circuit

April 8, 2015

PARRISH KAPPES, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
DAVID L. CRISP, JR., Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
JEFFREY J. JURGENS, Defendant-Appellant

Argued: November 14, 2014.

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Appeal from the United States District Court for the Central District of Illinois. No. 2:12-cr-20080-MPM-DGB-1 -- Michael P. McCuskey, Judge.

Appeal from the United States District Court for the Central District of Illinois. No. 2:13-cr-20050-MPM-DGB-1 -- Michael P. McCuskey, Judge.

Appeal from the United States District Court for the Central District of Illinois. No. 4:13-cr-40048-SLD-JEH-1 -- Sara Darrow, Judge.

For United States of America, Plaintiff - Appellee (14-1223): Elham M. Peirson, Attorney, Office of The United States Attorney, Urbana Division, Urbana, IL.

For Parrish Kappes, Defendant - Appellant (14-1223): Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.

For United States of America, Plaintiff - Appellee (14-2135): Ronda H. Coleman, Attorney, Office of The United States Attorney, Urbana Division, Urbana, IL; Greggory R. Walters, Attorney, Office of The United States Attorney, Peoria, IL.

For David L. Crisp, Jr., Defendant - Appellant (14-2135): Michelle L. Jacobs, Attorney, Biskupic & Jacobs, S.C., Mequon, WI.

For United States of America, Plaintiff - Appellee (14-2482): Kirk Schuler, Attorney, Office of The United States Attorney, Rock Island, IL.

For Jeffrey J. Jurgens, Defendant - Appellant (14-2482): Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.

Before BAUER, FLAUM, and TINDER, Circuit Judges.


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Tinder, Circuit Judge.

We resolve three appeals in a single opinion because the appeals raise similar challenges to conditions of supervised release. Although supervised release has been a feature of the federal criminal justice system for nearly thirty years, with over a million federal defendants having been sentenced to supervised-release terms, during the past several years we have addressed certain aspects of supervised release for the first time.[1] Some defendants, judges, lawyers, and probation officers might characterize our recent focus on these issues as better late than never, while others might grumble that we are trying to fix an un-broken system. In any event, we hope our recent jurisprudence results in the imposition of supervised-release conditions that are properly-

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noticed, supported by adequate findings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public.

The first section of this opinion provides an overview of the system of supervised release, including four general sentencing principles judges should consider. Next, we outline the history, crimes, and sentencings of the three defendants at issue. Then, we address the specific supervised-release challenges raised by each defendant, organized by the four general sentencing principles. Lastly, we consider Defendant Crisp's contention that the sentencing judge failed to consider one of his principal mitigation arguments.

I. Supervised Release

In 1984, Congress passed the Sentencing Reform Act, which replaced the federal parole system with the system of supervised release. See 18 U.S.C. § 3583; see generally S. Rep. No. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. The parole system allowed a convicted defendant to be released prior to the expiration of his prison term on conditions designed to reduce the likelihood of his committing further crimes. Parole was criticized for creating uncertainty as to how long a particular defendant would actually spend in prison--i.e., the judicially-imposed sentence was not considered the " real sentence" because it was " subject to constant adjustment by the parole commission" --which was viewed as undermining public respect for the law and defendants' morale. S. Rep. No. 98-225, at 56.

Under the replacement system of supervised release, judges impose conditions at sentencing which take effect after the completion of the defendant's prison term, and, in contrast to parole, do not reduce the length of the custodial portion of a defendant's sentence.[2] The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism. See United States v. Johnson, 529 U.S. 53, 59-60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th Cir. 2013). Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, " since those purposes will have been served to the extent necessary by the term of imprisonment." S. Rep. No. 98-225, at 125; see also Johnson, 529 U.S. at 59 (" Supervised release fulfills rehabilitative ends, distinct from those served by incarceration." ); cf. 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as " the decompression stage" between prison and full release. Johnson v. United States, 529 U.S. 694, 709, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). " Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. Congress aimed, then, to use the district

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courts' discretionary judgment to allocate supervision to those releasees who needed it most." Id. (citation omitted).

In some felony cases, including certain cases involving drug-trafficking, sex offenses and domestic violence, supervised release is mandated by statute. See, e.g., 18 U.S.C. § 3583(a), (k); 21 U.S.C. § § 841(b), 960(b). Between 2005 and 2009, approximately 41 percent of sentenced federal defendants were subject to statutes mandating supervised release. See U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release at 69 n.275 (2010), available at (last visited Mar. 26, 2015, as were all websites in this opinion). Although the sentencing guidelines call for supervised release in all remaining cases with a prison sentence of more than one year (with limited exceptions), see U.S.S.G. § 5D1.1(a)(2), the Supreme Court made the relevant provisions of the guidelines discretionary in 2005. See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Parker, 508 F.3d 434, 442 (7th Cir. 2007). The change from supervised release being mandatory to discretionary has made little practical difference: between 2005 and 2009, district courts imposed a term of supervised release in 99.1 percent of cases with a prison sentence in excess of one year but not subject to statutorily-mandated supervised release. U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release at 7, 52 n.241. So while supervised release may have been intended " for those, and only those, who needed it," Johnson, 529 U.S. at 709, the reality is that virtually all federal defendants who spend at least a year in custody are subject to supervised release.

The sentencing procedure generally is as follows. First the probation officer conducts a presentence investigation which culminates in the preparation of a presentence report. See 18 U.S.C. § 3552(a), (b); Fed. R. Crim. P. 32(c), (d). The presentence report identifies the kinds of sentences available, including the terms of supervised release which may be appropriate. See Fed. R. Crim. P. 32(d)(1)(C). The presentence report is disclosed to the parties at least 35 days before sentencing, and the parties state in writing any objections 14 days later. See Fed. R. Crim. P. 32(e)(2), (f)(1). At least seven days before sentencing, the presentence report, including any addenda addressing objections, is submitted to the court and the parties. See Fed. R. Crim. P. 32(g).

At the sentencing hearing, the sentencing judge hears from the lawyers, the defendant and any victims who are present, and may receive evidence related to objections. See Fed. R. Crim. P. 32(i). Ultimately, the judge engages in a two-part analysis. First, the judge determines the defendant's sentencing range under the guidelines. United States v. Adkins, 743 F.3d 176, 189 (7th Cir.), cert. denied, 134 S.Ct. 2864, 189 L.Ed.2d 823 (2014). Second, the judge makes " an individualized assessment of the appropriate sentence based on the § 3553(a) factors." Id. (quotation omitted). Any term of supervised release is considered part of the overall sentence. Id. at 192. In determining whether to include a term of supervised release, and, if so, in determining the length of the term and the conditions of supervised release, the judge is required to consider the factors set out in 18 U.S.C. § § 3553(a) and 3583(c)-(d), which are discussed below.

The sentencing judge's difficult task is not undertaken on a completely blank slate, but rather is structured by statutes

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and the guidelines, which recommend a range of terms of supervised release depending upon the category of offense, see 18 U.S.C. § 3583(b), and list certain mandatory and discretionary conditions, see id. § § 3563(a)-(b), 3583(d); U.S.S.G. § 5D1.3. Some of the discretionary conditions are called " standard," U.S.S.G. § 5D1.3(c), while others are called " special," id. § 5D1.3(d)-(e), and are recommended for particular offenses. Sentencing judges also are empowered to " impose conditions of their own devising." Siegel, 753 F.3d at 707.

After the sentencing judge exercises his or her " wide discretion in determining conditions of supervised release" at sentencing, Adkins, 743 F.3d at 193 (quotation omitted), the judge typically has no further occasion to consider the defendant's supervised release until after the defendant has completed the custodial portion of his sentence, begun serving supervised release under supervision by a federal probation officer, and the district court is presented with a motion for modification, revocation, or termination of supervised release. See 18 U.S.C. § 3583(e). Although not currently mandated by statute or the guidelines, we have suggested that sentencing judges " [r]equire that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release." Siegel, 753 F.3d at 717. This " would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant's experiences in prison." Id. Adopting this suggestion would help mitigate the inherent difficulty in imposing conditions at sentencing which do not go into effect until the defendant is released from custody--often many years in the future. See id. at 708. A defendant may change substantially during a long prison sentence, and the world outside the prison walls may change even more. A judgeship does not come equipped with a crystal ball.

The sentencing judge may terminate supervised release at any time after one year of supervision, if the judge determines such action is warranted by the defendant's conduct and serves the interests of justice. 18 U.S.C. § 3583(e)(1). For example, of the 42,984 active supervised release cases that closed during the 12-month period ending September 30, 2014, 13 percent were terminated early by the court. See Admin. Office of the U.S. Courts, Post-Conviction Supervision, Table E-7A, available at Approximately 68 percent of supervised release cases closed during the same period were closed " successfully", i.e., terminated (whether early or not) without revocation. Id. Approximately 61.3 percent of the supervised release violations during this period were for " technical violations" (such as failure of a drug test, failure to report to a supervising probation officer, or non-payment of financial conditions), 32.3 percent were for " major" violations (i.e., criminal offenses with a sentence of more than 90 days imprisonment), and 6.4 percent were for " minor" violations (i.e., criminal offenses with a sentence of 90 days or less of imprisonment). Id.

The three cases here concern legal issues arising at the original sentencing hearing, when the sentencing judge imposed a term of supervised release and selected the conditions and length of the term. We organize our discussion of the defendants' challenges around four general principles sentencing judges should consider when imposing conditions of supervised release: (1) the importance of advance notice of conditions being considered; (2) the

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need to justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the applicable § 3553(a) factors; (3) the goal of imposing only specific, appropriately-tailored conditions--which is to say, avoiding the imposition of vague or overbroad conditions; and (4) the requirement to orally pronounce all conditions, with the written judgment only clarifying the oral pronouncement in a manner that is not inconsistent with an unambiguous oral provision. Prior to turning to the defendants' challenges, we outline the history and offenses of the three defendants at issue.

II. Defendants' History and Offenses

A. Jeffrey Jurgens

Defendant Jeffrey Jurgens is the product of a deplorable childhood. He grew up in a rural Illinois house that was strewn with garbage due to his mother's hoarding; based upon the photos admitted at sentencing, his childhood home more closely resembled a landfill than a house. Jurgens' mother was a neglectful alcoholic who " always had a beer in her hand," and his father, also an alcoholic, abused her until they divorced when Jurgens was nine. No one taught Jurgens proper hygiene, and he was teased and bullied at school because he was dirty and smelled. Despite his up-bringing, Jurgens graduated from high school in 2003 and from DeVry University in 2005 with an associate's degree. He continued to live with his mother until she died in 2007.

At the time of his mother's death, Jurgens was 23. He moved into his own apartment and got a job with a tech company as a help-desk technician. He held that job for nearly six years until his arrest and detention in this case in 2013. During that time, he suffered severe social anxiety, left his apartment only for work and groceries, and allowed garbage to accumulate in his apartment because he feared encountering other people when he took out the trash. He had occasional social contact with co-workers, but he has never dated or had an intimate relationship.

Beginning in about 2007, Jurgens developed an interest in pre-pubescent and adolescent girls and in child pornography. For the next five years, he used file-sharing software to find child pornography and downloaded files to his computer hard drives. On February 17, 2012, a Moline, Illinois, police detective executed a search warrant at Jurgens' apartment and seized three computer hard drives containing 69 videos of child pornography. After waiving his Miranda rights, Jurgens told the detective that he had been watching child pornography for about five years and knew it was illegal. Jurgens said he did not pursue or have any contact with minors. He said, " I can't do anything when they are not here."

On September 25, 2013, a grand jury charged Jurgens with one count of receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 24, 2013, Jurgens pleaded guilty to both counts without a written plea agreement.

On January 15, 2014, a probation officer filed an initial presentence report, which was later revised on March 13, 2014, to reflect Jurgens' objections. The report stated that the statute required a minimum sentence of five years' imprisonment and a supervised-release term of five years to life on each count. The report indicated that the advisory guidelines range was 151 to 188 months of imprisonment and the guidelines recommended a life term of supervised release. The report stated, " [i]n

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addition to standard conditions of supervised release ... found at U.S.S.G. § 5D1.3, the Court may impose the following special conditions," and listed seven " special conditions." An addendum to the report indicated that Jurgens objected to five of the proposed special conditions.

At a hearing originally scheduled for sentencing, the district court ordered Jurgens to undergo a psychosexual evaluation and reset the date for sentencing. A licensed counselor later diagnosed Jurgens with pedophilic disorder and social anxiety disorder. The counselor recommended the same conditions of " community supervision" that the presentence report listed and recommend that Jurgens receive counseling to address his social anxiety in addition to sex offender treatment.

At the sentencing hearing on June 26, 2014, Jurgens' attorney objected to the proposed conditions of supervised release which use " these very broad and vague terms about 'sexual arousal' and 'pornography' and the like." Jurgens' attorney asked that the court fashion the conditions to " allow for Mr. Jurgens to have contact with minors who are relatives of his and allow him to have contact with minors that are incidental to employment." Jurgens' attorney then spoke of the " irrationality" of U.S.S.G. § 2G2.2,[3] which produced a guidelines range of 151 to 188 months of imprisonment for Jurgens, and requested a sentence of 60 months of imprisonment and 10 years of supervised release. The government attorney requested a sentence of 108 months of imprisonment and 20 years of supervised release.

After hearing from Jurgens himself, the district judge addressed Jurgens' offense in relation to other offenders, the harm to the victims, aggravating factors, and Jurgens' personal history and characteristics. The district judge then imposed a sentence of 72 months of imprisonment and 20 years of supervised release. The judge imposed 13 standard conditions with no discussion, and six special conditions with discussion of each. The judge rewrote certain proposed special conditions to accommodate the objections raised by Jurgens' counsel, and did not impose the special condition proposed by probation that Jurgens refrain from using the Internet for the purpose of sexual arousal.

Jurgens appeals, contending that the district judge procedurally erred when she imposed 20 years of supervised release without addressing his request for 10 years or making appropriate findings. On appeal, Jurgens also challenges each of the 19 standard and special conditions of supervised release on the basis that they were imposed without appropriate findings and are impermissibly vague and overbroad.

B. Parrish Kappes

The details of Defendant Parrish Kappes' childhood are different from Jurgens', but the themes are similar. Kappes' parents separated when he was an infant, and his mother took him to live in Arizona. In 1972, when Kappes was six years old, he flew alone to Illinois, where his father and grandmother lived. He had been physically abused and neglected by his mother, and he " looked rough" when he arrived in Illinois. He was given the choice of living with his father or grandmother, and he chose the latter, feeling that his father had earlier abandoned him. He lived with his grandmother for most of the next 40 years until his arrest and detention in this case.

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Kappes had not seen his mother since he was a child, and he told the probation officer during a presentence interview that he could not remember his mother's name. Although Kappes graduated from high school, he finished near the bottom of his class, and he told the probation officer he was illiterate. Although he maintained steady employment from 2006 to 2012, he grew " accustomed to being alone" and had difficulty socializing.

On October 15, 2012, law enforcement agents executed a search warrant at the Tuscola, Illinois, house that Kappes shared with his then-93-year-old grandmother. The agents found 2,319 images and 182 videos of child pornography on Kappes' computer. Agents also found images taken by Kappes of a 17-year-old female in a bikini. After waiving his Miranda rights, Kappes admitted that he had been taking pictures of this female and others while they played in an outdoor pool adjacent to his home since the girl was approximately seven or eight years old. In a footlocker, the ...

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