Submitted: April 13, 2018
from United States District Court for the District of
Nebraska - Omaha
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, Circuit Judge.
James Hill pled guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§
841(b)(1)(B) and 846. The district court sentenced him to 84
months' imprisonment. After prison, he violated the
conditions of his supervised release. The district court
revoked his release, sentencing him to 18 months'
imprisonment and 24 months' supervised release. He
appeals the sentence and one condition of release. Having
jurisdiction under 28 U.S.C. § 1291, this court vacates
mandatory condition of supervised release #6 and remands.
argues his within-guidelines sentence is substantively
unreasonable. On February 16, 2018, Hill completed his
sentence and was released from federal custody. Therefore,
the appeal of the length of his sentence is moot. See
United States v. Tuberville, 698 Fed.Appx. 315, 315-16
(8th Cir. 2017).
challenges mandatory condition of supervised release #6,
requiring he "participate in an approved program for
domestic violence." This court has jurisdiction to
consider this part of the appeal because he is on supervised
release. See id. Hill did not object to this
condition at sentencing, so review is for plain error.
United States v. Ristine, 335 F.3d 692, 694 (8th
Cir. 2003). "To obtain relief under a plain-error
standard of review, the party seeking relief must show that
there was an error, the error is clear or obvious under
current law, the error affected the party's substantial
rights, and the error seriously affects the fairness,
integrity or public reputation of judicial proceedings."
United States v. Schultz, 845 F.3d 879, 881 (8th
district court has "wide discretion" to impose
conditions of supervised release. United States v.
Durham, 618 F.3d 921, 944 (8th Cir. 2010). But such
conditions "must satisfy the requirements set out in 18
U.S.C. § 3583(d)." Id.
First, the special conditions must be "reasonably
related" to . . . the nature and circumstances of the
offense, the defendant's history and characteristics, the
deterrence of criminal conduct, the protection of the public
from further crimes of the defendant, and the defendant's
educational, vocational, medical or other correctional needs.
Second, the conditions must "involve[ ] no greater
deprivation of liberty than is reasonably necessary" to
advance deterrence, the protection of the public from future
crimes of the defendant, and the defendant's correctional
needs. Finally, the conditions must be consistent with any
pertinent policy statements issued by the [United States
Id., quoting United States v. Crume, 422
F.3d 728, 733 (8th Cir. 2005).
2016, Hill was arrested and charged in state court with
domestic violence. In the "Amended Petition for Warrant
or Summons for Offender Under Supervision" in federal
court, the probation officer alleged:
On September 23, 2016, at 04:02 hours, a domestic disturbance
took place at Mr. Hill's current residence. His
girlfriend, Ms. Andrea Smith, advised Omaha police officers
that she and her boyfriend, Mr. Hill, were arguing about who
she could be friends with on social media. Mr. Hill
eventually threw her onto the floor and slapped her face,
leaving a bruise on her right cheek. Mr. Hill is being
charged with misdemeanor third degree domestic assault for
this incident. A warrant was issued out of Douglas County
Court on October 26, 2016 for this offense. A pretrial
hearing is set for December 9, 2016 at 10 A.M. at the Douglas
denied the allegation. The government produced no evidence of
domestic assault. On the government's motion, the court
dismissed the allegation. (The charge also was dismissed in
state court). Hill has no other documented history of
violence, domestic or otherwise. Still, in the probation
officer's "Adjustment Report and Recommendation for
Offender Under Supervision, " it recommended a condition
of supervision for "Mr. Hill to complete domestic
violence programming." The government repeated this
recommendation at sentencing: "And also the probation
officer is recommending that he participate in a domestic
violence programming as part of that term of supervised
release." The district court adopted the recommendation
dismissed domestic assault allegation "fail[s] to
establish the factual or evidentiary basis necessary to
impose [domestic violence] counseling." United
States v. Bertucci, 794 F.3d 925, 931 (8th Cir. 2015).
"To be sure, [the "Amended Petition"] does
contain allegations that, if proven true, would
support the district court's decision." Id.
at 931-32. But the allegations, and the corresponding state
charge, were dismissed-meaning the evidence of domestic
assault "consists of only bare and unproven accusations
of misconduct from other cases." Id. at 932.
"That alone cannot constitute a sufficient basis for
requiring [domestic violence] counseling." Id.
("[A]n indictment is simply an accusation. It is not
evidence of anything."). "The record is
insufficient to support imposition of the condition."
Id. The district court erred in imposing it. See
id.; United States v. Wisecarver, 644 F.3d 764,
775 (8th Cir. 2011) (holding that the district court's