7th Circuit: Court needs permission to revise supervised release conditions once appealed

July 28, 2016

The 7th Circuit Court of Appeals declined to overrule recent precedents in a man’s appeal involving his supervised release conditions and instead adopted a rule of practice for the Circuit.

Carey Ray, 29, was convicted in federal court in Hammond of knowingly transporting a minor across state lines to engage in criminal sexual activity. He met “Alexia,” a 14-year-old girl, online and took her to Illinois on their second meeting. He rented a hotel room, gave her marijuana and alcohol, and had sex with her despite her protests.

He was sentenced to more than 20 years in prison and the judge imposed certain conditions regarding his supervised release. Since his sentencing, the 7th Circuit has pronounced both procedural and substantive requirements for permissible conditions of supervised release, Judge Frank Easterbrook wrote, citing United States v. Thompson, 777 F.3d. 368 (7th Cir. 2015).

The U.S. government acknowledged that nine of the conditions needed addressed or corrected, so the government asked the District Court to fix the problem while Ray’s appeal was pending before the 7th Circuit. Circuit Rule 57 requires the lower court to request permission from the 7th Circuit to modify a judgment while an appeal is pending. But the District Court did not do so, relying on 28 U.S.C. Section 3583(e)(2), which says the conditions of supervised release may be modified at “any time.”

Ray then filed a new appeal because he challenged four of the conditions even after revision, believing they are out of compliance with Thompson and it successors. Ray wants the 7th Circuit to revisit and overrule United States v. Ramer, 787 F.3d 837 (7th Cir. 2015) and United States v. Taylor, 796 F.3d 788 (7th Cir. 2015). Ramer concluded the “at any time” language in the statute supersedes the normal rule that only one court at a time has jurisdiction. Taylor reached the same conclusion about conditions of probation.

The 7th Circuit declined and instead held that whether or not a District Court possesses jurisdiction to revise the conditions of supervised release while an appeal is pending, it should not exercise that jurisdiction without receiving permission under Circuit Rule 57. It should also not seek that permission in the absence of strong reasons, reasons which are lacking in Ray’s case, Easterbrook noted.

“Waiting for the outcome of the appeal before taking up a request under §3583(e)(2) usually is much the best course. It isn’t as if there were a need for a speedy rewrite. Ray will spend more than 20 years in prison before his supervised release begins,” Easterbrook wrote. “Only when the term of imprisonment is short, and supervised release might commence before the appeal ends, would it be prudent to modify the conditions while the appeal is pending.

“And when the district judge believes that this is so, the procedure laid out by Circuit Rule 57 would allow this court to decide whether an expedited decision of the appeal would be a better solution.”

Easterbrook noted that the opinion was circulated among all active judges since it adopted a rule of practice, and none of the judges favored a hearing en banc.

The judges affirmed Ray’s conviction but vacated his sentence and sent United States of America v. Carey Ray, 14-3799, 15-3193, back to the lower court for resentencing.


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