April 16, 2019
Appeals from the United States District Court for the
Southern District of Illinois. Nos. 17-cr-30097 and
17-cr-30033 - Michael J. Reagan, Judge.
Easterbrook, Kanne, and Scudder, Circuit Judges.
Brown pled guilty to distributing a controlled substance.
Marcus Thornton pled guilty to bank robbery and an associated
firearms charge. The same district court separately imposed
terms of supervised release on both defendants, in addition
to imprisonment. The court set several conditions of
supervised release, including both mandatory and
discretionary conditions. But it also imposed a set of
"administrative conditions," which the probation
office deemed "applicable whenever supervision is
imposed, regardless of the substantive conditions that may
also be imposed." Both defendants now contend that the
imposition of administrative conditions violated their due
process rights under the Fifth Amendment.
consolidate the two appeals because of the overlapping legal
question. But neither defendant objected to the conditions in
the district court, and so both waived the issue altogether.
The defendants' other challenges also fail. We therefore
affirm the sentences.
Brown's Plea and Sentencing
sold 10.8 grams of cocaine to a confidential informant in
April 2017. In September, he pled guilty to one count of
distributing a controlled substance, 21 U.S.C. § 841. In
December, the probation office filed a Presentence
Investigation Report ("PSR") with the court. The
PSR calculated a base offense level of 12. However, Brown had
an extensive criminal record. His prior convictions included
at least two offenses qualifying him as a career offender
under U.S.S.G. § 4B1.1. That designation increased his
offense level to 32. Including a 3-level reduction for
acceptance of responsibility, the PSR recommended a total
offense level of 29. The same guidelines mandate a criminal
history category of VI, yielding a guidelines range of
151-188 months in prison.
also recommended the mandatory three-year term of supervised
release under 21 U.S.C. § 841(b)(1)(C). It suggested
several conditions to facilitate the supervision, including
the usual mandatory conditions under 18 U.S.C. § 3583(d)
and several special conditions tailored to Brown's
personal characteristics. It also recommended nine
"administrative" conditions, which it deemed
"applicable whenever supervision is imposed, regardless
of the substantive conditions that may also be imposed."
Brown and his counsel received the PSR in December.
court continued the case for several months to permit Brown
to undergo competency hearings and obtain new counsel. In
June 2018, six months after receiving the PSR, Brown filed a
sentencing memorandum recommending a 60-month sentence. In
its own memorandum, the government recommended 151 months-the
low end of the guidelines range. Brown also filed an
objection to the PSR, arguing that one of his prior offenses
did not qualify to support a career offender designation.
Later that month, on the day of the sentencing hearing, Brown
signed a written waiver of his right to a reading of terms
and conditions of supervised release at the hearing. It
included the following language:
Defendant understands that, because no objections regarding
the terms and conditions of supervised release recommended in
the PSR have been filed, the Court may impose upon Defendant
all of the terms and conditions of supervision recommended in
the PSR which the Court finds to be appropriate. Defendant
understands that the terms and conditions of supervision
determined to be appropriate by the Court will be included in
the judgment... . Defendant has no objection to the
imposition of the conditions of supervision set forth in the
PSR and Defendant has no objection to the wording of the
conditions. Defendant agrees that the PSR sets forth adequate
explanation for the necessity of the conditions, and
Defendant understands the conditions.
sentencing, the district court adopted the PSR's
findings. It found that Brown's prior convictions did
qualify him as a career offender, overruling his sole
objection to the PSR. It acknowledged that Brown's
criminal conduct was relatively minor and that the
career-offender enhancement "increase[d] his sentence
seven-fold." In light of that disparity, the district
court departed downwards from the guidelines range and
sentenced Brown to 120 months in prison, as well as the
mandatory three years of supervised release. The court
confirmed with Brown that he had waived the reading of the
conditions and that he understood them, discussed them with
counsel, and had no questions about them.
Thornton's Plea and Sentencing
March 2018, Marcus Thornton pled guilty to two counts of bank
robbery, 18 U.S.C. § 2113(a). The next month, he pled
guilty to one count of brandishing a firearm during a crime
of violence, 18 U.S.C. § 924(c)(1)(A)(ii). In return,
the government agreed to dismiss a second § 924(c)
count. He was on supervised release for a prior bank robbery
when he committed the two bank robberies underlying the new
22, probation filed a PSR. After incorporating various
enhancements and a three-level reduction for acceptance of
responsibility, the PSR calculated a total offense level of
27. Together with a criminal history category of III, the PSR
indicated a guidelines range of 87-108 months on the robbery
counts and a mandatory-minimum sentence of 84 months on the
firearms count, for a total range of 171-192 months. The PSR
also recommended three years of supervised release. As in
Brown's case above, in addition to the mandatory and
discretionary conditions, the PSR recommended nine
"administrative" conditions that are
"applicable whenever ...