Sentencing Supervised Release.

Byline: Derek Hawkins

7th 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...