USA v. Renard McCray

Filing

Filed Nonprecedential Disposition PER CURIAM. The decision of the district court to revoke Renard McCray s supervised release is AFFIRMED. We VACATE the conditions of supervised release, however, and REMAND for the limited purpose of clarifying the notification condition. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6807964-1] [6807964] [16-1537]

Case: 16-1537

Document: 27
Filed: 12/29/2016
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued September 28, 2016
Decided December 29, 2016
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 16-1537
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.

v.
RENARD McCRAY,
Defendant-Appellant.

No. 1:12-cr-00634-1
James B. Zagel,
Judge.
ORDER

This is an appeal from a revocation of supervised release. Defendant Renard
McCray asks that we vacate a district court order finding him in violation of his
conditions of supervised release. Because the defendant consented to a condition of
supervised release requiring him to spend 180 days at a halfway house, and because he
stipulated to having violated that condition, we affirm this part of the district court’s
order.
The defendant also contends that one of the new conditions on supervised
release imposed in the same order—the third-party notification requirement—should

Case: 16-1537

Document: 27

Filed: 12/29/2016

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be vacated as unconstitutionally vague. Because the government concedes this point on
appeal, we vacate this part of the district court’s order and remand for a limited
resentencing to clarify this condition on supervised release.
I.
On August 2, 2013, Renard McCray pleaded guilty to one count of failing to
register as a sex offender in violation of the Sex Offender Notification Act (SORNA), 18
U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment and three years of
supervised release. While serving that term, the probation office requested a
modification of McCray’s conditions on release, to add a mandatory 180 days’ halfwayhouse placement. To comply with FED. R. CRIM. PRO. 32.1(c)(2)(A), the probation officer
and McCray signed a Probation Form 49, memorializing McCray’s waiver of his right to
a hearing on the modification of conditions of supervised release. There is some
evidence in the record that the reason for this modification was because his wife’s house
was SORNA non-compliant—perhaps too close to a school. Apparently the halfway
house would be an acceptable place for McCray to live, providing him some time to
find SORNA-compliant housing.
McCray was released from prison and began his supervised release on May 19,
2015. In September 2015, a little over four months later, McCray left the halfway house
in violation of his condition on supervised release. A warrant issued shortly thereafter
and McCray was arrested at his wife’s house on October 6, 2015, and he has been in
custody ever since. On February 4, 2016, the district court revoked McCray’s supervised
release, and imposed an above-Guidelines sentence of 24 months in custody, followed
by a year of supervised release.
The district judge also imposed a number of mandatory and discretionary
conditions on this new term of supervised release. Pertinent to this appeal, the judge
imposed this discretionary condition: “The defendant must notify, as directed by the
Probation Officer, third parties of risks that may be occasioned by the Defendant’s
criminal record or personal history or characteristics and shall permit the Probation
Officer to make such notifications and to confirm the Defendant’s compliance with such
notification requirement.” It is from this order that plaintiff appeals.

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II.
There are two issues on appeal, which we will dispose of in turn. First, McCray
questions the authenticity of his waiver of a right to a hearing for modification of
conditions on supervised. Similarly, he claims that he did not violate this condition on
release, because that the condition was improper in the first place.
A challenge to a waiver of rights under Rule 32.1 is reviewed by considering the
totality of the circumstances. United States v. LeBlanc, 175 F.3d 511, 516-17 (7th Cir. 1999).
In this case, the defendant’s argument is without merit. The Probation Form 49 in the
record clearly shows that McCray waived his right to counsel and hearing, and that he
agreed to the modification. Even in the absence of the form, however, the argument was
waived when, in open court, McCray’s counsel noted that “my client, after discussion
with probation, agreed and was amenable to extended stay in the Halfway House.”
It is true that McCray’s case is atypical in that his stay in the halfway house was
apparently not to serve the penological purpose of rehabilitation but rather to provide
him with temporary housing. Nevertheless, to suggest that the stay was strictly
voluntary is nonsense. Halfway houses have rules, such as curfews. McCray showed up
on the day of his release, and was required to wear a GPS bracelet. He was required to
notify staff of his whereabouts. In order to leave he lied, claiming he had a social service
appointment. He then cut off the GPS bracelet. There was obviously no question that he
knew his stay at the halfway house was a mandatory, agreed-to condition of supervised
release.
McCray also claims that he did not violate this condition of release. His
argument, essentially, is that he couldn’t violate a condition that he never agreed to in
the first place. There can be no dispute, however, that McCray violated the condition.
On October 19, 2015, counsel for the defendant admitted in open court that “No one is
disputing that Mr. McCray left the Halfway House.” Again, on January 13, 2016,
McCray’s lawyer helpfully provided: “I don’t think … that McCray has actually
admitted to the violation [at that point in the hearing]. So for the record, he is admitting
to violation number 1,” which consisted of leaving the halfway house early. Even apart
from these explicit concessions there is ample, undisputed evidence in the hearing
transcript regarding McCray’s unannounced departure from the halfway house. He cut
off his GPS bracelet, lied to staff, and left, eventually being arrested on October 6, 2015
at his wife’s residence out of state. The 180-day requirement, had he complied, was set to
expire two weeks later.

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Thus, it is clear from the record that the district court did not err in finding
McCray in violation of a valid condition on his supervised release.
III.
The defendant raises one final argument on appeal. Once the defendant was
found in violation of his conditions of supervised release, the district court imposed on
him a sentence of 24 months’ imprisonment and another year of supervised release.
This term of imprisonment was substantially above the Guidelines range of 7–13
months.
He objects to Special Condition 12, imposed upon his upcoming year of
supervised release, which reads: “The defendant must notify, as directed by the
Probation Officer, third parties of risks that may be occasioned by the Defendant’s
criminal record or personal history or characteristics and shall permit the Probation
Officer to make such notifications and to confirm the Defendant’s compliance with such
notification requirement.”
The defendant contends that this condition is unconstitutionally vague, because
it provides “no indication what the district court meant by ‘personal history’ or
‘characteristics’ and is uncertain what ‘risks’ must be disclosed to which ‘third parties.’”
It cites recent Seventh Circuit precedent in support of this proposition. United States v.
Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828 (7th Cir.
2015); United States v. Bickart, 825 F.3d 832 (7th Cir. 2016).
For its part, the government concedes that a remand is necessary, and
recommends that the condition, rather than placing a vague burden on the defendant,
should instead require him simply to consent to his probation officer to notify third
parties at the officer’s discretion. We need not direct the district court on this point, and
note that on remand it might consider such a requirement, or it might simply clarify its
condition by directing the defendant to notify specific parties about specific
characteristics he has that pose specific risks.
Accordingly, the decision of the district court to revoke Renard McCray’s
supervised release is affirmed. We vacate the conditions of supervised release, however,
and remand for the limited purpose of clarifying the notification condition.