May 22, 2019
from the United States District Court for the Western
District of Wisconsin. No. 3:18-cr-50 - William M. Conley,
Hamilton, Scudder, and St. Eve, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
Anstice pleaded guilty to conspiring to distribute
methamphetamine and was sentenced to ten years'
imprisonment and five years' supervised release. On
appeal he challenges five conditions of supervised release
appearing in the written judgment of conviction that the
district court did not announce orally at sentencing. Because
three of these challenged conditions are mandated by federal
statute and two are discretionary, we affirm in part and
to sentencing the probation office prepared a Presentence
Investigation Report, commonly referred to as a PSR. The PSR
recommend a five-year term of supervised release and included
a proposed plan listing multiple conditions. Five conditions
appeared under the label "mandatory." The PSR also
recommended a dozen or so discretionary conditions,
categorized as either standard or special conditions.
began with the district court confirming with Anstice that he
had received the PSR and reviewed it with his counsel. After
announcing Anstice's ten-year custodial sentence, the
court turned to supervised release, explaining that the law
required a five-year term. See 21 U.S.C. § 841(b). As
for the conditions of supervised release, the district judge
imposed all but one of the standard and special conditions,
stating: "I do adopt Condition Nos. 1 through 10 [the
standard conditions], and 12 through 14 [the special
conditions], as proposed and justified in the presentence
report." At no point, though, did the court address the
five conditions the PSR categorized as "mandatory."
ensuing written judgment, often shorthanded in federal
criminal practice as the "J&C" (Judgment and
Commitment Order), included the five supervised release
conditions that appeared as "mandatory" in the PSR.
The J&C included these five conditions under the heading
"Statutory Mandatory Conditions." The J&C
separately listed the standard and special conditions that
the court had announced orally at sentencing.
appeal Anstice contends that the five conditions appearing as
"Statutory Mandatory Conditions" in the written
judgment were not orally imposed at sentencing and therefore
are not part of his sentence.
start from the familiar rule that "[i]f an inconsistency
exists between an oral and the later written sentence, the
sentence pronounced from the bench controls." United
States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005)
(quoting United States v. Bonanno, 146 F.3d 502, 511
(7th Cir. 1998)). And "any new conditions imposed in the
later written judgment are inconsistent with the court's
oral order and must be vacated." United States v.
Johnson, 765 F.3d 702, 711 (7th Cir. 2014).
Johnson provides a good example. The sentencing
court there "unambiguously announced several specific
conditions of supervised release" and "did not
include any statement as to whether other standard conditions
would apply," leading us to vacate the additional
discretionary conditions that appeared only in the written
our caselaw is clear that the oral sentence controls, we have
never addressed whether the district court's failure to
announce conditions of supervised release made mandatory by
statute-as opposed to non-mandatory conditions- renders those
conditions nullities. This case presents that question.
the district court's written judgment characterized and
listed each of the five conditions Anstice challenges as
"Statutory Mandatory Conditions" it turns out that
two of those conditions are neither statutory nor mandatory.
Those two conditions-the requirement for Anstice to report to
the probation office within 72 hours of his release and the
prohibition on his possessing a firearm, destructive device,
or other dangerous weapon -do not appear as mandatory