RIPPLE, Circuit Judge.
Defendant Robert D. McKissic pleaded guilty to one count of armed bank robbery. He now appeals the imposition of several conditions of supervised release by the district court. Mr. McKissic also contends that he should have been given notice that the court was contemplating such special conditions. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
On March 17, 2004, Mr. McKissic robbed the Illini Bank in Springfield, Illinois. During the robbery, he displayed what appeared to be a handgun; however, it was determined later that the weapon was only a pellet gun. Mr. McKissic took approximately $5,335 and, within minutes of leaving the bank, was apprehended by the police a few blocks away. He admitted to robbing the bank and provided a written
In determining Mr. McKissic's sentence, the district court considered the presentence report, which contained a number of facts about Mr. McKissic's history. Mr. McKissic had dropped out of high school during his senior year and does not have a high school diploma. His employment history can be characterized as checkered; despite being only twenty-four years old, he has held at least twenty different jobs. He had been fired from at least three of those jobs for attendance problems; at one job, he simply left for lunch and never returned. Mr. McKissic also has a criminal record, including a 2001 conviction for domestic battery for which he was on probation when he committed the bank robbery, as well as prior convictions for attempted burglary, criminal trespass to land and multiple instances of driving on a suspended license.
The district court held a sentencing hearing on August 27, 2004. At this hearing, the court noted that it was "getting concerned about the Robert McKissic [it] see[s] in the public record," whose criminal acts appear to be increasing in seriousness. Tr.II at 29. The court also noted that Mr. McKissic had committed the bank robbery while he already was on probation, and that when a person continues to commit crimes on probation, that sends a message to the court that "we better get real serious about this individual." Id. at 30-31.
Mr. McKissic was sentenced to 60 months' imprisonment, followed by 60 months of supervised release. R.16. In addition to the standard conditions of supervision, the district court ordered a number of special conditions, including the following:
R. 16 at 4. Mr. McKissic raised no objections to the conditions of supervised release at the sentencing hearing.
A. Imposition of Special Conditions
Mr. McKissic contends that the district court plainly erred when it imposed special conditions of supervised release relating to alcohol use, education, employment and community service. Because Mr. McKissic failed to object to the
When imposing supervised release, a district court may include conditions pursuant to United States Sentencing Guideline § 5D1.3, which "duplicat[es] and consolidat[es] language contained in relevant statutes." United States v. Bass, 121 F.3d 1218, 1223 (8th Cir.1997). The United States Sentencing Commission lists several mandatory supervised release conditions in U.S.S.G. § 5D1.3(a). See also 18 U.S.C. § 3583(d). The relevant statute states that, beyond the mandatory supervised release conditions, the district court may impose "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." 18 U.S.C. § 3583(d). These discretionary conditions correspond largely with the recommended "standard" conditions of supervised release listed in U.S.S.G. § 5D1.3(c). The Guidelines also state that:
U.S.S.G. § 5D1.3; see 18 U.S.C. §§ 3583(d), 3553(a)(1), 3553(a)(2)(B-D).
1. The Total Ban on Alcohol Use
Mr. McKissic submits that it was plain error for the court to impose a condition banning all alcohol use because his offense was unrelated to alcohol use and because he has no history of alcohol abuse. A requirement that a defendant "refrain from excessive use of alcohol" is one of the discretionary conditions listed in § 3563(b) that can be given as a condition of supervised release pursuant to § 3583(d); however, a total ban on alcohol use is not specifically listed as a discretionary condition. See 18 U.S.C. § 3563(b)(7); U.S.S.G. § 5D1.3(7).
Although we approved a ban on alcohol use as a special condition in United States v. Schave, 186 F.3d 839 (7th Cir.1999), Mr. McKissic contends that his case is distinguishable because Schave had a prior diagnosis of alcoholism, and Mr. McKissic had no such diagnosis. Id. at 841-42. Although Mr. McKissic has not been diagnosed with alcoholism, there is history of alcohol use and abuse, including an incident in 1998 when Mr. McKissic was issued a citation for operating a motor vehicle in which there were open containers of alcohol. Additionally, Mr. McKissic admitted to first consuming alcohol at the age of 17, to consuming up to three vodka mixed drinks as often as twice a month, and to being intoxicated about a month prior to
We are aware that the Eighth Circuit decided a somewhat factually similar case in United States v. Bass, 121 F.3d 1218 (8th Cir.1997). In that case, our colleagues in the Eighth Circuit vacated a condition banning alcohol use. That court determined that there was no evidence that the defendant was "prone to abuse alcohol," even though he had imbibed alcohol on the weekends since the age of 18, and had admitted smoking marijuana on a weekly basis. Id. at 1223-24. Although Mr. McKissic's history may be similar to that defendant's in some respects, we believe that the thoughtful analysis of the district court in this case presents, as it should, a carefully tailored plan for this individual's rehabilitation and for the protection of society from this individual. Faced with a progressively deteriorating criminal history, which makes Mr. McKissic's situation significantly different from the situation in Bass, the district court determined that it was time to take substantial action to ensure that Mr. McKissic's emerging life pattern changed. We believe that a special condition banning alcohol use "is reasonably related to the need to protect the public from further crimes, § 3553(a)(2)(C), and the need to provide [the defendant] with rehabilitative treatment, § 3553(a)(2)(D)." Schave, 186 F.3d at 842; see also 18 U.S.C. § 3583(d)(1).
Mr. McKissic further submits that a complete ban on alcohol is a greater deprivation of liberty than is reasonably necessary and therefore violates the mandate of 18 U.S.C. § 3583(d)(2). Mr. McKissic relies on United States v. Holm, in which we determined that a special condition of release banning all use of the internet for a defendant who pleaded guilty to possession of child pornography imposed a greater deprivation of liberty than was necessary. 326 F.3d 872, 877-78 (7th Cir.2003) (noting that such a ban "renders modern life . . . exceptionally difficult"). However, a ban on alcohol is distinguishable from a ban on internet use. In Holm, we discussed forms of monitored internet use that would be less restrictive on liberty while still accomplishing the goal of preventing access to child pornography,
The imposition of a condition banning the use of alcohol was certainly not plain error.
2. The Education, Employment and Community Service Conditions
We next turn to Mr. McKissic's challenges to the special conditions regarding education, employment and community service.
Mr. McKissic submits that the conditions that he attempt to complete his high school education, that he maintain employment and that he perform community service in the event that he fails to maintain employment were all imposed in plain error. He maintains that his lack of a high school education and employment is not at all unique, and, if this condition was imposed on him, it would need to be imposed on most criminal defendants. Mr. McKissic also contends that there is no support for these conclusions in the existing statutes or case law. He concedes that 18 U.S.C. § 3563(b)(5), as referenced in § 3583(b), allows the district court to impose a special condition that a defendant refrain from "engaging in a specified occupation," but he argues that the statute does not allow a condition that affirmatively requires a defendant to engage in any occupation.
We cannot accept Mr. McKissic's arguments. They ignore the statutory provisions that specifically allow for conditions based on education and employment. Education and employment are specifically listed as discretionary conditions that the court may impose; for example, 18 U.S.C. § 3563(b)(4) allows for a condition that requires a defendant to "work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip him for suitable employment." See 18 U.S.C. § 3583(b). Moreover, the Sentencing Guidelines Manual lists as a recommended "standard" condition that "the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons." U.S.S.G. § 5D1.3(c)(5).
Mr. McKissic also is incorrect in his assertion that there is no statutory support for a condition imposing community service; 18 U.S.C. § 3563(b)(12) allows the court to impose a discretionary condition that a defendant "work in community service as directed by the court." See 18 U.S.C. § 3583(b). The Guidelines also provide that "[c]ommunity service may be ordered as a condition of probation or supervised release." U.S.S.G. § 5F1.3.
Furthermore, the imposition of education, employment and community service conditions will further the statutory goal of providing "the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." Schave, 186 F.3d at 841 (quoting 18 U.S.C. § 3553(a)(2)(D)). Indeed, these conditions are especially suited to Mr. McKissic. He nearly completed his high school education, and former employers have indicated that he has
Finally, if Mr. McKissic maintains steady employment, it likely will lower the chances that he will reoffend. A district court may also impose a condition as long as it is reasonably related to "protecting the public from future crimes of the defendant," and keeping Mr. McKissic in steady employment would further that goal. See Schave, 186 F.3d at 841; 18 U.S.C. § 3553(a)(2)(C). Therefore, we do not believe that the imposition of conditions relating to education, employment, or community service was in error, let alone plain error.
B. The District Court's Failure to Notify Mr. McKissic that it was Contemplating Special Conditions
Mr. McKissic also submits that, according to Federal Rule of Criminal Procedure 32(h), a district court must give notice before it imposes a special condition on a ground not identified in the presentence report or prehearing submissions. According to Mr. McKissic, it was plain error for the district court not to provide warning that it intended to impose special conditions related to alcohol use, education, employment and community service. Mr. McKissic relies on United States v. Angle, 234 F.3d 326, 347 (7th Cir.2000), in which we held that a special condition requiring a defendant to register as a sex offender required notice under Rule 32.
Federal Rule of Criminal Procedure 32(h) states that: "Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure." That notice must also "specify any ground on which the court is contemplating a departure." Fed.R.Crim.P. 32(h). Rule 32(h) codifies the Supreme Court's holding in Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), that such notice is necessary. In Angle, we determined that notice was necessary for the condition requiring registration because such a condition was not expressly contemplated by the guidelines at that time, and thus was analogous to an upward departure. 234 F.3d at 347 (citing United States v. Coenen, 135 F.3d 938 (5th Cir.1998)). Such notice is necessary to give the parties an adequate opportunity to comment on matters relating to the appropriate sentence; notice also promotes "focused, adversarial resolution of the legal and factual issues" relevant to sentencing. Id. (citation omitted). In United States v. Scott, 316 F.3d 733 (7th Cir.2003), we reinforced the holding of Angle by ruling that notice is required before imposing terms of supervised release that are "out of the ordinary." Id. at 736 (ruling that a flat ban on use of the internet was such an "unexpected" condition).
In this case, the special conditions regarding education, employment and community service were listed explicitly among the discretionary conditions that a court may impose. See 18 U.S.C. § 3563(b). Thus, Mr. McKissic was given constructive notice that they could be imposed without requiring additional notice from the district court. See United States v. Barajas, 331 F.3d 1141, 1145 (10th Cir.2003); United States v. Lopez, 258 F.3d 1053, 1055 (9th Cir.2001) (holding that the district court "did not depart from the guidelines, but rather imposed a condition of supervised release that is contemplated by the guidelines" when a condition of participation in a mental health program was imposed, so notice was not required) (emphasis in original); United States v.
However, the district court should have provided notice to Mr. McKissic that it contemplated imposing a complete ban on alcohol consumption. The only mention of alcohol restrictions comes in the recommended "standard" condition found in U.S.S.G. § 5D1.3(c), which lists, as a discretionary condition, that the defendant "refrain from excessive use of alcohol, or use of a narcotic drug or other controlled substance. . . ." U.S.S.G. § 5D1.3(c)(7); see also 18 U.S.C. §§ 3563(b)(7), 3583(d). A total ban on alcohol therefore goes beyond the discretionary condition enumerated in the statute and guidelines, and neither the statute nor the guidelines provided Mr. McKissic with notice that a complete ban could be imposed. Because the record does not contain any evidence that Mr. McKissic was aware that the court was contemplating a complete ban, it was error not to provide him notice that such a condition was being contemplated by the district court. Without notice, he was not able to develop meaningful arguments on his behalf; nor was he able to direct the court to evidence that could demonstrate that the condition was not necessary.
Although the district court should have given notice to Mr. McKissic that it contemplated imposing an alcohol restriction not found in the mandatory conditions set forth in 18 U.S.C. § 3583(d), the recommended "standard" conditions in U.S.S.G. 5D1.3(c), or the discretionary conditions in § 3563(b) as incorporated into the supervised release provisions by 18 U.S.C. § 3583(d), we cannot say that the error constituted plain error. It did not "affect substantial rights" because Mr. McKissic can seek modification of the conditions.
For the foregoing reasons, the sentence imposed by the district court is affirmed.