NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 11, 2017*
Decided January 12, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐2391
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff‐Appellee, District Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 1:10‐cr‐00018‐LJM‐KPF
CHARLES COLSON,
Defendant‐Appellant. Larry J. McKinney,
Judge.
O R D E R
Charles Colson pleaded guilty in 2011 to possessing and transporting child
pornography, see 18 U.S.C. § 2252(a)(1), (a)(4)(B), and was sentenced to 10 years’
incarceration and a lifetime of supervised release. In January 2016, Colson moved to
modify or remove several conditions of his supervised release. See 18 U.S.C. § 3583(e)(2);
FED. R. CRIM. P. 32.1(c); United States v. Neal, 810 F.3d 512, 516–20 (7th Cir. 2016). After
* We have unanimously agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16‐2391 Page 2
four months passed without a response from the government (despite having been
granted extra time), Colson moved for “summary judgment”—in effect, a default, albeit
in a criminal case. Cf. FED. R. CIV. P. 55(a). The district court, without conducting a
hearing, entered an order granting some of the relief Colson requested, but also adding
several new conditions. We conclude that those modifications should not have been
made without a hearing, and thus we remand for further proceedings.
Federal Rule of Criminal Procedure 32.1(c) provides that, with two exceptions, a
district court must conduct a hearing before modifying conditions of supervised release.
At that hearing, the defendant has a right to counsel and must be given an opportunity
to make a statement and present any information in mitigation. FED. R. CRIM P. 32.1(c)(1).
The court may dispense with a hearing only if (1) “the person waives the hearing” or
(2) “the relief sought is favorable to the person and does not extend the term of
probation or of supervised release” and “an attorney for the government has received
notice of the relief sought, has had a reasonable opportunity to object, and has not done
so.” FED. R. CRIM. P. 32.1(c)(2).
Colson argues that a hearing was required because, he says, neither exception
applied. The government counters that Colson expressly waived his right to a hearing by
moving for “summary judgment.” See FED. R. CRIM. P. 32.1(c)(2)(A). We reject that
construction of Colson’s motion. The government twice missed deadlines for responding
to the requested modifications, so Colson simply asked the court to enter his
proposed—and unopposed—changes. He did not, however, invite the court to add
several of its own modifications without giving him a chance to be heard. The
government alternatively argues that a hearing was unnecessary because, it says, all of
the modifications are “more precise” and favorable to Colson. See FED. R. CRIM. P.
32.1(c)(2)(B), (C). But we agree with Colson that several of the revised conditions are
more restrictive than the originals and, thus, less favorable to him.
As an initial note, it is unclear from the district court’s order whether the listed
conditions are comprehensive or simply reflect those modified. The court may have
eliminated several conditions, making the new order favorable to that extent. Our focus,
though, is limited to the revisions Colson challenges in his brief. (We note that Colson
sought changes to several conditions which he and the prosecutor had jointly proposed
in their plea agreement. The government, by ignoring Colson’s postjudgment challenge
to the conditions of supervised release, has waived any argument that his motion
constituted a breach of the plea agreement.)
No. 16‐2391 Page 3
First, Colson asked the district court to modify the condition that he “refrain from
excessive use of alcohol” and not “purchase, possess, use, distribute, or administer any
controlled substance” unless prescribed by a physician. Colson objected to this ban on
“excessive use of alcohol” as unconstitutionally vague. See United States v. Kappes,
782 F.3d 828, 849 (7th Cir. 2015). The district court struck that language but then added
“psychoactive substances” to the ban on nonprescription use of controlled substances.
The government contends that this new condition clarifies the original condition by
incorporating language proposed in Kappes, 782 F.3d at 853. But in fact the modification
is more restrictive because it literally prohibits all use of psychoactive substances,
including sleeping pills, certain herbal supplements, and other legal substances. On
remand, the district court should consider our suggestion to use language prohibiting
“illegal mood‐altering substances.” See United States v. Cary, 775 F.3d 919, 924 (7th Cir.
2015); see also United States v. Hill, 818 F.3d 342, 345 (7th Cir. 2016) (“[T]he more vague a
condition is, the harder it is for the defendant to determine what restrictions it actually
imposes and whether any of them are so onerous that he should object.”). The judge’s
choice of wording, taken literally, would preclude Colson from even eating chocolate,
and surely that was not the judge’s intention.
Second, Colson asked the district court to add a scienter requirement to the
condition prohibiting him from associating with “persons engaged in criminal activity”
or “convicted of a felony.” The court did so, see Kappes, 782 F.3d at 848–49, but also
added another condition that, with limited exceptions, prohibits all “non‐incidental
communications” with anyone known to be “a registered sex offender or to have been
convicted of a felony sex offense involving an adult or minor.” The government
contends that the original condition is broader because the verb “associate” is undefined
and, unlike the court’s added condition, the original does not make an exception for
encountering felons during mental‐health treatment or religious services. On those
points, we agree with the government that the original condition is broader. See Kappes,
782 F.3d at 848–49. But the additional condition casts a wider net encompassing all
registered sex offenders, even those without a felony conviction. And since this broader
restriction is not favorable to Colson, he was entitled to a hearing before it could be
imposed.
The third modification Colson requested was removing the ban on storing
encrypted information, which is included in a condition governing the monitoring of his
computer usage. The district court granted this request but then also deleted other
language that Colson had successfully advocated at sentencing: “The monitoring of
internet and email communications as a condition of supervision should not be applied
No. 16‐2391 Page 4
so as to impair or impede” Colson’s future employment “in the computer technology
industry, so long as any computer used by the defendant to access other computers or
networks is subject to monitoring as otherwise provided.” Colson contends that deleting
the quoted language gives the probation office greater leeway to monitor his computer
use and could hinder his ability to find productive work in information technology. The
government dismisses Colson’s concerns as speculative. But we held in Kappes that
conditions must not “be worded in such a way as to endow probation officers with
essentially unlimited discretion.” 782 F.3d at 857 (quotation marks and citation omitted).
The removal of this sentence eliminates a check on the authority of Colson’s probation
officer, so the condition as modified is less favorable to Colson. Again, Colson was
entitled to a hearing before the modification was made.
Finally, the district court, on its own initiative, clarified the original condition
limiting Colson’s interaction with minors and then added three related conditions. The
original condition prohibits Colson from having “any unsupervised contact with any
minor child, unless the contact has been disclosed to and approved by the probation
officer.” The district court rewrote this condition to prohibit Colson from having
“unsupervised meetings, non‐incidental communications, activities, or visits with any
minor, unless they have been disclosed to the probation officer and approved by the
court.” Colson apparently concedes that this rephrasing narrows the original language.
He argues, though, that the three conditions added by the district court are
broader than the original. The first of these specifies that, absent court approval, Colson
may “not be employed in any position or participate as a volunteer in any activity that
involves unsupervised meetings, non‐incidental communications, activities, or visits
with minors.” Although this condition is more precise in that it exempts incidental
interactions with minors, see United States v. Thompson, 777 F.3d 368, 376 (7th Cir. 2015), it
also requires specific approval from a judge—arguably more burdensome than obtaining
approval informally from a probation officer with whom Colson will be in frequent
contact. This change is not favorable to Colson.
The second addition provides that Colson “shall not remain at a place for the
primary purpose of observing or contacting children under the age of 18.” This
condition, too, is less favorable than the original because observation is not a subset of
contact. Whether warranted or not, barring Colson from being where he might even look
at children widens the scope of his prohibited activities.
The third added condition is also more onerous. It prohibits Colson from
“entering any place primarily frequented by children under the age of 18, including
No. 16‐2391 Page 5
parks, schools, playgrounds, and childcare facilities.” This condition places a broad
prohibition on entering any building or space where children typically are—a more
expansive restriction than simply prohibiting activities involving contact with minors.
Moreover, the condition imposes strict liability because it lacks a scienter requirement
that Colson know or have reason to know that the space he is entering is one frequented
by children. See Kappes, 782 F.3d at 849–50.
In short, the district court’s response to Colson’s unopposed motion was to
modify the conditions of his supervised release to make them more, not less, restrictive.
The court’s modifications might well be reasonable, but Colson is entitled to a hearing
before these or other unfavorable changes may be made. We thus VACATE the court’s
order and REMAND for the court to take a fresh look at Colson’s motion. On remand the
court also should take note of Colson’s projected release date in 2021 and, in its
discretion, may elect to deny his motion without prejudice or defer ruling until a date
closer to the commencement of his term of supervised release. See United States v.
Williams, 840 F.3d 865, 865 (7th Cir. 2016) (upholding district court’s determination that
motion to modify conditions of supervised release made 14 years before defendant’s
projected release was premature); United States v. Siegel, 753 F.3d 705, 716–17 (7th Cir.
2014) (noting that “best practices” include considering modifications on the “eve” of
defendant’s release).
VACATED and REMANDED.