In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3377

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT D. McKISSIC,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 CR 30028—Jeanne E. Scott, Judge.

____________

ARGUED SEPTEMBER 19, 2005—DECIDED NOVEMBER 8, 2005

____________

Before RIPPLE, WOOD and WILLIAMS, Circuit Judges.

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.
2 No. 04-3377

I

BACKGROUND

A. Facts

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

statement. On April 26, 2004, Mr. McKissic pleaded guilty

to one count of armed bank robbery. See 18 U.S.C. § 2113(a)

and (d).

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
No. 04-3377 3

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:

1. The defendant shall refrain from any use of alcohol

and shall not purchase, possess, use, distribute, or

administer any controlled substance, or any paraphernalia related to any controlled substance, except as

prescribed by a physician. He shall, at the direction of

the Probation Office, participate in a program for

substance abuse treatment including testing to determine whether he has used controlled substances and/or

alcohol. He shall pay for these services as directed by

the probation officer.

. . .

3. The defendant shall attend an educational program

and make reasonable efforts to obtain a GED or high

school diploma.

4. The defendant shall obtain and maintain employment

or participate in a program of job training or employment counseling as directed by the probation officer.

5. If the defendant is unemployed after the first 60 days

of supervision, or if unemployed for 60 days after

termination or lay-off from employment, he shall

perform at least 20 hours of community service work
4 No. 04-3377

per week at the direction of and in the discretion of the

U. S. Probation Office until gainfully employed.

R.16 at 4. Mr. McKissic raised no objections to the conditions

of supervised release at the sentencing hearing.

II

DISCUSSION

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

imposition of the special conditions during his sentencing

hearing, we review his claim only for plain error. United

States v. Guy, 174 F.3d 859, 862 (7th Cir. 1999). In order for

us to correct a plain error, there must have been 1) an error,

2) that is plain, 3) that affects substantial rights and 4) that

“seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S.

625, 626 (2002). In this case, there has been no plain error in

the imposition of supervised release conditions.

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
No. 04-3377 5

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:

The court may impose other conditions of supervised

release to the extent that such conditions are (1) reasonably related to (A) the nature and circumstances of the

offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford

adequate deterrence to criminal conduct; (C) the need to

protect the public from further crimes of the defendant;

(D) the need to provide the defendant with needed

educational or vocational training, medical care, or

other correctional treatment in the most effective

manner; and (2) involve no greater deprivation of

liberty than is reasonably necessary for the purposes set

forth above and are consistent with any pertinent policy

statements issued by the Sentencing Commission.

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
6 No. 04-3377

1 Cf. United States v. Modena, 302 F.3d 626, 636 (6th Cir. 2002)

(holding that a condition banning alcohol was an abuse of the

district court’s discretion when the presentence report only stated

that the probation officer “has no information pertaining to

substance abuse/use”).

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 his arrest for this

offense. He also admitted to marijuana use and indicated to

his probation officer that he could benefit from treatment for

marijuana use while in prison. Given Mr. McKissic’s record

and his use of alcohol, in combination with contraband

substances, the district court certainly had grounds to

conclude that the further use of alcohol would create an

obstacle to his rehabilitation while on supervised release.1

Moreover, given that Mr. McKissic’s employment history

and criminal record, including the most recent offense,

show a progressive unwillingness to conform his conduct to

the law, it appears that he tends to be an impulse-oriented

individual. The district court recognized this tendency and

obviously crafted the conditions of relief to provide a
No. 04-3377 7

remedy—and, for Mr. McKissic, an opportunity for rehabilitation. See United States v. Cooper, 171 F.3d 582, 586-87 (8th

Cir. 1999) (special condition banning alcohol was not an

abuse of discretion, even though the defendant had no

“concrete evidence” of alcohol abuse, when defendant

abused his wife and children, consumed large quantities

of alcohol on the weekends, and argued more with his

wife when he had been drinking).

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 reason-
8 No. 04-3377

ably 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, such as

filtering software. Id. at 878-79. Here, by contrast, the court

determined that Mr. McKissic’s deteriorating behavior

pattern needed to be addressed by a total ban on alcohol,

and there certainly is a reasonable basis for such a determination. Additionally, in Holm, we were concerned that a

complete internet ban would jeopardize the defendant’s

ability to find employment because he had spent almost

thirty years working in computerized telecommunications.

Id. at 878. For Mr. McKissic, it can hardly be said that an

alcohol ban will harm his employment opportunities.

Therefore, this case is very different from Holm; there is not

a greater deprivation of liberty than necessary.

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.
No. 04-3377 9

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
10 No. 04-3377

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 the potential to be a very capable

worker. Both a high school degree and community service

can give Mr. McKissic the training he needs for a vocation

of his choosing.

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
No. 04-3377 11

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 (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.”
12 No. 04-3377

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. Mills, 959 F.2d 516, 519 (5th Cir. 1992).

Agreeing with our sister circuits, we now determine that

there was adequate notice for the special conditions involving employment, community service and education special

conditions because they are contemplated explicitly in the

recommended “standard” conditions found in U.S.S.G.

§ 5D1.3(c) as described above. See also 18 U.S.C. §§ 3563(b),

3583(d).

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 enum-
No. 04-3377 13

2 Mr. McKissic also raised a concern at oral argument that he

would not be able to afford to pay for alcohol treatment, as

required by the special condition imposed by the district court.

As he did not raise this issue in his brief, his argument is waived.

See Holman v. Indiana, 211 F.3d 399, 406 (7th Cir. 2000). Despite

this waiver, Mr. McKissic will be able to seek relief. If, after an

alcohol assessment, it is determined that Mr. McKissic does not

need further treatment, he can seek modification of the condition

from the district court. If it is determined that Mr. McKissic does

need continued treatment, but he is unable to pay for such

treatment, he also can ask the district court to modify the

condition that he pay for his own treatment.

erated 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.2

 The district court can modify Mr. McKissic’s

conditions of supervised release; 18 U.S.C. § 3583(e)(2) states
14 No. 04-3377

that the court “may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration

or termination of the term of supervised release.” (emphasis

added). The district court has authority to hear a motion to

modify the terms of supervised release under Federal Rule

of Criminal Procedure 32.1. See also United States v. Montiero,

270 F.3d 465, 472 (7th Cir. 2001). Because the district court

can modify Mr. McKissic’s conditions, the lack of notice

does not rise to the level of plain error.

Conclusion

For the foregoing reasons, the sentence imposed by the

district court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit

USCA-02-C-0072—11-8-05