USA v. Odell Given

Filing

Filed opinion of the court by Judge Bauer. The sentence is AFFIRMED and the case is REMANDED for the limited purpose of correcting the written judgment regarding excessive use of alcohol. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6883490-1] [6883490] [16-4198]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-4198
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ODELL GIVENS,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 421 — John Z. Lee, Judge.

ARGUED SEPTEMBER 18, 2017 — DECIDED NOVEMBER 14, 2017

Before BAUER, FLAUM, and SYKES, Circuit Judges.
BAUER, Circuit Judge. On September 6, 2012, a grand jury
indicted Odell Givens on three counts of possession of a
controlled substance with intent to distribute, in violation of 21
U.S.C. § 841(a)(1), and one count of conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846. Givens pleaded guilty
to all four counts on February 14, 2014.

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On April 28, 2014, the United States Probation Office filed
a Presentence Investigation Report (PSR), which it updated on
June 18, 2015. The PSR calculated Givens’ total offense level at
37, with a criminal history category of IV, resulting in a
Sentencing Guidelines range of 292 to 365 months’ imprisonment, followed by a term of supervised release.
Givens made several objections to the PSR in his sentencing
memorandum. Specifically, as relevant to this appeal, he
objected to the PSR’s proposed condition of supervised release
that would require him to “remain within the jurisdiction
where [he] is being supervised, unless granted permission to
leave by the court or a probation officer.” Givens argued that,
if the court were to impose the condition, he should only be
prohibited from “knowingly” leaving the jurisdiction.
The district court held Givens’ sentencing hearing in two
parts, on December 1 and December 14, 2016. The court
overruled Givens’ objection to the supervised release condition. It also clarified that the condition’s reference to “jurisdiction” meant “the federal district in which he is being supervised” and admonished Givens that it was his responsibility to
familiarize himself with the district’s boundaries. The court
sentenced Givens to 186 months imprisonment followed by
five years of supervised release. Givens timely appealed.
I. DISCUSSION
Givens raises three challenges to his sentence. First, he
contends that the court erred by imposing the supervised
release condition prohibiting him from traveling outside the
jurisdiction without permission. Second, he argues that the
written judgment’s inclusion of a $400 special assessment was

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error because the court failed to include it in its oral pronouncement of his sentence. Finally, he contends that the
written judgment erroneously fails to define “excessive use of
alcohol.”
A. Supervised Release Condition
18 U.S.C. § 3563(b) sets forth a list of discretionary conditions that district courts may impose as part of a sentence of
supervised release. At issue here is the condition that a
defendant “remain within the jurisdiction of the court, unless
granted permission to leave by the court or a probation
officer.” Id. § 3563(b)(14). Givens argues that the court should
not have imposed this condition at all, or alternatively, that the
court should have modified the condition to include a knowledge requirement. Because Givens objected to the condition in
the district court, we review for an abuse of discretion. United
States v. Douglas, 806 F.3d 979, 983 (7th Cir. 2015).
Givens contends that the court should not have imposed
this condition in any form because, in his case, the condition
does not satisfy 18 U.S.C. § 3583(d)(2). That section requires
that any condition of supervised release involve “no greater
deprivation of liberty than is reasonably necessary for the
purposes set forth” in § 3553(a). As we have stated repeatedly,
however, this particular condition is administrative in nature
and can be imposed whenever a district court adequately
explains the need for supervised release in the first instance.
United States v. Warren, 843 F.3d 275, 281 (7th Cir. 2016); United
States v. Poulin, 809 F.3d 924, 931 (7th Cir. 2016). Givens does
not argue that the court failed to explain its reasons for
imposing a term of supervised release. There is no basis,

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therefore, to find that the court abused its discretion in imposing this particular condition.
As support for his argument that the court should have
included the word “knowingly” in the condition, Givens notes
that we have previously stated that this condition “would be
improved by explicitly adding a scienter requirement, particularly in a case where it is foreseeable that a defendant will
reside near the boundary of two judicial districts.” United States
v. Kappes, 782 F.3d 828, 849–50 (7th Cir. 2015). In a later case,
however, we clarified that such language is not mandatory,
and that courts may impose this condition without it. Poulin,
809 F.3d at 931. There is no contention here that Givens lives on
or near the boundary of two districts, and he presents no other
compelling argument as to why a scienter requirement would
be necessary in his case. The court did not abuse its discretion
in denying Givens’ request for a modification of the condition.
Finally, we briefly address, and reject, Givens’ additional
argument that the term “jurisdiction,” as used in the supervised release condition, does not refer to a geographical area,
but rather the jurisdictional power of the court. Based on that
interpretation, he contends that during his supervised release,
he should not be confined to the judicial district as the court
ordered during the sentencing hearing. As we noted above,
however, this condition seeks to satisfy the practical and
administrative concerns associated with supervised release, i.e.,
those having to do with a defendant’s physical location. See,
e.g., Warren, 843 F.3d at 281 (characterizing the condition as one
of the “necessary incidents of supervision”). Givens’ interpretation would render the condition useless to satisfy those
concerns. The district court was correct to clarify that the

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condition requires Givens to remain within the judicial district.
See United States v. Ortiz, 817 F.3d 553, 555 (7th Cir. 2016)
(noting that the term “jurisdiction” in this context denotes a
geographical area). If Givens wishes to leave the district, he
may always seek permission from the court.
B. Special Assessment and “Excessive” Alcohol Use
Next, Givens argues that there are discrepancies between
the sentence announced at the hearing and the court’s written
judgment that require remand. We conduct a de novo review to
determine whether a written judgment adequately reflects the
court’s oral pronouncement at a sentencing hearing. United
States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998).
The written judgment detailing Givens’ sentence included
a $400 special assessment. According to Givens, the court
failed to impose the assessment orally and therefore, its
inclusion in the written order was error. We disagree. After
performing the Guidelines calculation at the hearing, the court
stated “[a] special assessment of $100 is mandatory for each
count, totaling $400.” The court then went on to hear arguments from both sides as to the appropriate sentence. It is true
that the court did not revisit the assessment when it formally
imposed the sentence at the end of the hearing. By that time,
however, the court had already made clear to Givens that the
assessment was mandatory and had informed him of the total
amount it was required to impose. Therefore, we find that the
assessment in the written order adequately reflected the court’s
oral pronouncement.
At the hearing, the court also imposed a condition of
supervised release prohibiting Givens from “excessive” use of

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alcohol, which the court orally defined as having a blood
alcohol concentration of greater than .08 percent. The written
judgment, however, left blank the box designated for the
court’s definition of “excessive” use of alcohol. Both Givens
and the government agree that the court’s oral definition
controls over the written judgment. United States v. Alburay,
415 F.3d 782, 788 (7th Cir. 2005). Therefore, we must remand
for the limited purpose of having the apparent scrivener’s error
on the written judgment corrected to conform with the court’s
definition of “excessive” alcohol use.
II. CONCLUSION
For the foregoing reasons, the sentence is affirmed and the
case is remanded for the limited purpose of correcting the
written judgment regarding excessive use of alcohol.