May 16, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:13-cr-0787 -
Virginia M. Kendall, Judge.
Bauer, Hamilton, and St. Eve, Circuit Judges.
EVE, CIRCUIT JUDGE
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.
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.
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.
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.
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
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
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.
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.
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