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United States v. Spivey

United States Court of Appeals, Seventh Circuit

June 7, 2019

United States of America, Plaintiff-Appellee,
v.
Eric S. Spivey, Defendant-Appellant.

          Argued May 16, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:13-cr-0787 - Virginia M. Kendall, Judge.

          Before Bauer, Hamilton, and St. Eve, Circuit Judges.

          ST. EVE, CIRCUIT JUDGE

         After the district court revoked Eric Spivey's supervised release, it sentenced him to 24 months in custody. Spivey now argues the district court violated due process because it sentenced him based on a nonexistent condition of supervised release. We disagree and affirm.

          I. Background

         In September 2005, Spivey was convicted of predatory criminal sexual assault in the Circuit Court of Cook County, Illinois. This conviction required him to register under the Sex Offender Registration Notification Act. In April 2014, Spivey pleaded guilty in federal district court to one count of knowingly failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). The district court sentenced him to 41 months in prison and a five-year term of supervised release. Relevant to this appeal is Spivey's supervised release condition that he truthfully answer his probation officer's inquiries, which the original judgment contained. For reasons unclear in our record, the district court struck that condition and others in an amended judgment issued about two weeks later.

         Spivey began serving his term of supervised release in October 2016. Throughout that term, probation officers submitted multiple special reports reflecting eighteen separate violations of Spivey's conditions. From June 2017 until Spivey's final revocation hearing approximately one year later, the district court conducted multiple rule to show cause hearings. During these hearings, Spivey explained that because he was homeless, he had challenges registering as a sex offender. Spivey also told the court he could not fulfill his supervised release conditions due to his work schedule, lack of funds, and illnesses requiring hospitalization.

         In March 2018, Spivey failed to appear before the district court on three separate occasions. His counsel informed the court that Spivey said he was in the hospital, but when Spivey failed to appear at the third status hearing, counsel indicated that he did not know his client's whereabouts. The district court then issued a bench warrant for Spivey's arrest. Law enforcement arrested Spivey on March 28, 2018, at his girlfriend's house, where she lived with her two young children.

         The district court conducted Spivey's final revocation and sentencing hearing on June 14, 2018. The government called two witnesses to testify. First, Spivey's probation officer testified that he went to the Chicago Police Department's Office for Criminal Registration, where he found that Spivey had not registered as a sex offender. The probation officer stated that Spivey explained he did not register because he did not have the money to complete the registration, and, that during the winter months, he had to wait outside in the cold for hours to register. Spivey's probation officer, however, observed that the registration office had a waiting room and that the Chicago Police Department waives registration fees under certain circumstances.

         Further, the probation officer testified that Spivey missed an October 2017 meeting with him claiming to be in the hospital. After requesting Spivey's medical documentation, the officer discovered that Spivey had not been in the hospital on the meeting date. The probation officer also testified that law enforcement arrested Spivey at his girlfriend's home where he was living, which contradicted Spivey's assertion that he was homeless and sleeping on public transportation.

         Next, the government called a senior inspector for the United States Marshals Service who testified she arrested Spivey on two occasions. The first time was in August 2017 at Spivey's sister's home on a state charge of failing to register as a sex offender. When arresting Spivey, his sister told the inspector that Spivey was living with her. In addition, the inspector observed a 16- or 17-year-old living at his sister's home.

          The inspector also arrested Spivey on March 28, 2018, pursuant to the district court's warrant. She explained that she knew Spivey would be at his girlfriend's home because the State of Illinois had issued a driver's license to Spivey with that address. The inspector talked to Spivey's girlfriend at the time of his arrest, and she explained that she had two children, ages 8 and 10, living with her. Spivey's girlfriend added that she had been dating Spivey for about four months and had no idea he was a sex offender.

         At his revocation hearing, Spivey admitted that he had failed to register as a sex offender amounting to four separate violations, which were numbered Violations 1, 6, 10, and 14. Based on evidence in the record, the district court also found Spivey had violated three other supervised release conditions, including another violation of failing to register as a sex offender (Violation 18), unsupervised ...


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