FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 31, 2003

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 02-11751

 

D.C. Docket No. 01-CR-123-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY JAMES RIDGEWAY,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Alabama

 

(January 31, 2003)
*

 Honorable James H. Hancock, United States District Judge for the Northern District of

Alabama, sitting by designation.

1

 Since the Court determines that Condition 16 is so broad and vague that a court cannot

justifiably make in any case the requisite findings under § 5D1.3(b), the Court refrains from

discussing the constitutional issue on appeal. Generally, courts will not grasp a constitutional

question for decision even though properly presented, if there is also present some other

legitimate ground upon which the case can be decided. See e.g., City of Mesquite v. Aladdin's

Castle, Inc., 455 U.S. 283, 294, 102 S.Ct. 1070, 1077 (1982); U.S. v. Odom, 252 F.3d 1289,

1293 ( 11th Cir. 2001); Santamorena v. Ga. Military Coll., 147 F.3d 1337, 1343 (11th Cir.1998). 

“If there is one doctrine more deeply rooted than any other in the process of constitutional

adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such

adjudication is unavoidable.” Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65

S.Ct. 152, 154 (1944); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct.

2794, 2800 (1985); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483 (1936) (Brandeis,

J., concurring); Liverpool, New York & Philadelphia S.S. Co. v. Comm'rs of Emigration, 113

U.S. 33, 39, 5 S.Ct. 352, 355 (1885). This is a “fundamental rule of judicial restraint” which has

received the sanction of time and experience. Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 2279 (1984). 

Further, the Supreme Court has described this canon as “corollary” to the Article III case or

2

Before CARNES and HULL, Circuit Judges, and HANCOCK*, District Judge. 

PER CURIAM:

Larry James Ridgeway appeals his 87-month sentence, imposed following

his guilty plea to one count of possession of an unregistered firearm, in violation of

26 U.S.C. § 5861(d). Ridgeway challenges a condition of his supervised release

requiring him to refrain from “conduct or activities that would give reasonable

cause to believe” that he had violated any criminal law. He claims that this

condition is not authorized by U.S.S.G. § 5D1.3(b) because the court failed to

make findings of fact sufficient to satisfy § 5D1.3(b). He additionally claims that

the condition is unconstitutionally vague and overbroad.1
controversy requirement. See Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549,

570, 67 S.Ct. 1409, 1420 (1947). 

2

 The facts underlying Ridgeway's conviction are undisputed and are not at issue.

3

I. Background

In a two-count indictment, Ridgeway was charged in Count 1 with

possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) and in

Count 2 with being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). He pled guilty to Count 1 without the benefit of a written plea

agreement, and the government later dismissed Count 2.2

 The district court

sentenced Ridgeway to 87 months imprisonment and three years supervised

release. 

At the sentencing hearing, the district court imposed certain conditions on

the supervised release term, stating:

During that time [on supervised release] you are not to commit any

other state, federal or local crime, abide by all the conditions of

release on file with this court, not possess any firearms, dangerous

weapons or controlled substances. And participate in whatever

program is available at that time for testing and/or treatment, if

necessary, for substance abuse. 

(R2-8.) (emphasis added) The “conditions of release on file with this court”

referred to by the district judge are a list of eighteen conditions of supervised

release adopted by the Southern District of Alabama and encompassed in Probation
3

 The entire colloquy addressing the objection and the ruling was as follows: 

MS. CAMPBELL: We object to the imposition of condition 16, my appellate specialist

tells me that I need to ask the Court to make some findings regarding why that condition was

imposed.

THE COURT: Why it was imposed?

MS. CAMPBELL: Why it was imposed.

THE COURT: Why not?

MS. CAMPBELL: Because we believe it's already covered in condition number 8, which

is that –

THE COURT: Then why would you object to it?

MS. CAMPBELL: Because it lowers the burden of proof for the government. Condition

number 8 is you shall not violate any state, federal or local law. Condition number 16 is you

shall not do anything to give reasonable cause to believe you violated any state, federal or local

law. They are basically the same condition. The difference being under condition 8, the

government would have to prove by a preponderance of the evidence that the defendant

committed the crime. Under condition 16 it can be argued that merely being arrested for the

crime is enough to satisfy the condition.

THE COURT: You have some reaction to that Mr. Bordenkircher?

MR. BORDENKIRCHER: You Honor, I won't battle the semantics of how its [sic] done. 

At the hearing the court follows specific guideline on whether to find a preponderance of the

4

Form 7A. These conditions are routinely imposed as conditions of supervised

release in the Southern District of Alabama. Condition 16 states: “You shall

refrain from conduct or activities which would give reasonable cause to believe

you have violated any criminal law.”

At sentencing, Ridgeway's counsel objected to the imposition of Condition

16. (R2-8.) Counsel also asked the district judge to make findings to support the

imposition of the condition; however, the district court overruled the objection,

stating “I'm not going to . . . state any reason for the imposition of it, other than I

think it is a reasonable requirement of the conditions of release that this Court is

authorized to impose.” (R2-10, 11.)3
evidence – find whether the person violated the condition. I think the Court then –

THE COURT: Excuse me, isn't what Ms. Campbell is saying is that's true with condition

8. Condition 16, the condition is that the offender not give reasonable cause to believe – how is

it worded Ms. Campbell?

MS. CAMPBELL: Reasonable cause to believe you violated any criminal law.

THE COURT: As opposed to condition 8, that he has violated another.

MR. BORDENKIRCHER: Well, I think reasonable cause, you are still going to have to

find by a preponderance of the evidence that reasonable cause is that he violated the law. And I

don't think, from my experience with the Court, just a simple arrest would not be enough.

MS. CAMPBELL: I would point out, Your Honor, there is at least one judge in this

district, Judge Hand, who believes that merely being arrested satisfies condition 16.

THE COURT: Yeah. Under certain circumstances it might. But I'm not going to grant

your objection or state any reasons for the imposition of it, other than I think it is a reasonable

requirement of the conditions of release that this Court is authorized to impose.

All right. This matter is concluded.

(R2-8 through 11.)

5

II. Issue on Appeal

As an initial matter, although Condition 16 is not listed as a condition of

supervised release in Ridgeway's written judgment, the court orally imposed it at

the sentencing hearing. (R1-14; R2-8 through 11.) When the orally imposed

sentence differs from the written order of judgment, the oral sentence controls. 

United States v. Jones, 289 F.3d 1260, 1264 n.5 (11th Cir.), cert. denied ___ S.Ct.

____, 2002 WL 1906967 (2002); United States v. Khoury, 901 F.2d 975, 977 (11th

Cir. 1990).

This Court reviews a district court's imposition of a supervised release term

for abuse of discretion. See United States v. Bull, 214 F.3d 1275, 1277-78 (11th

Cir.), cert. denied, 531 U.S. 1056 (2000). A district court may impose conditions
6

of supervised release in accordance with four classes of conditions found in

U.S.S.G. § 5D1.3. The first class of supervised release conditions is the list of

“mandatory” conditions in U.S.S.G. § 5D1.3(a). When sentencing a defendant to a

term of supervised release, a district court must impose § 5D1.3(a)(1), §

5D1.3(a)(2) and, in an appropriate case, must impose §§ 5D1.3(a)(3)-(7). 

The second class of conditions is the list of fifteen “standard” conditions

recommended in U.S.S.G. § 5D1.3(c) for supervised release. The Sentencing

Guidelines note that several of these fifteen standard conditions are “expansions of

the conditions required by statute.” U.S.S.G. § 5D1.3(c). The third class of

supervised release conditions is the list of “special” conditions in §§ 5D1.3(d) and

(e). Section 5D1.3(d) contains seven special conditions that “are recommended in

the circumstances described [in the condition], and, in addition, may otherwise be

appropriate in particular cases.” U.S.S.G. § 5D1.3(d). Section 5D1.3(e) contains

five special conditions that “may be appropriate on a case-by-case basis.” U.S.S.G.

§ 5D1.3(e). 

The fourth class of supervised release conditions embraces any “other

conditions” that a court may impose if the condition meets the requirements set

forth in § 5D1.3(b). Section 5D1.3(b) states:

The court may impose other conditions of supervised release to the

extent that such conditions (1) are reasonably related to (A) the nature
4

 In Bull, the condition was not related to the nature and circumstances of the offense of

conviction, but this Court determined “this is not fatal where the other considerations in section

5D1.3 so clearly apply.” Bull, 214 F.3d at 1278.

7

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; and (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(b). This Court has held, however, that special conditions

imposed pursuant to § 5D1.3(b) need not be related to each factor listed in §

5D1.3(b)(1); instead, each factor is an independent consideration to be weighed. 

See Bull, 214 F.3d at 1278.4

Conditions 1 through 15, plus 17 and 18 on Probation Form 7A, the list of

conditions routinely imposed in the Southern District of Alabama, are embraced in

§§ 5D1.3(a),(c), (d) or (e). The parties in this case agree that (a) Condition 16 is

not a § 5D1.3(a) mandatory condition, nor a § 5D1.3(c) standard condition, nor a

§§ 5D1.3(d), or (e) special condition and (b) the court could have imposed

Condition 16 only pursuant to § 5D1.3(b) as the guidelines and their statutory

foundation, 18 U.S.C. § 3553(d), do not indicate that a court may create other

conditions not subject to this section's limitations. While we find no fault with this
5

 Condition 16 is certainly broader than the conditions set out in § 5D1.3(a)(1), §

5D1.3(c)(8) and § 5D1.3(c)(9) which address the subject of being a law-abiding person. Those

three conditions are Conditions 1, 9 and 10 of Probation Form 7A utilized by the Southern

District of Alabama.

6

 The Court cannot envision what advice an attorney might give to a client, with

reasonable professional confidence, regarding “conduct or activities” proscribed by Condition

16.

8

agreement, the problem with Condition 16 is more fundamental.

Condition 16, requiring of Ridgeway that he “refrain from conduct or

activities which would give reasonable cause to believe [he has] violated any

criminal law,”5

 proscribes not just criminal activity but a range of behavior so

broad as to be inherently vague.6

 Since it is impossible to determine exactly what

conduct is prohibited by Condition 16, no court could sufficiently evaluate it to

determine if it satisfies the requirements of § 5D1.3(b)(1) and § 5D1.3(b)(2). As

noted earlier, the Southern District of Alabama imposes Condition 16 as a part of

every sentence of supervised release, apparently without complying with the

requirement in Bull that each § 5D1.3(b)(1) factor is an independent factor to be

weighed before imposing a condition of supervised release that can only be

imposed under the authority of § 5D1.3(b). Certainly no findings of fact were 

made by the district court with regard to the § 5D1.3(b)(1) factors before it was

imposed in this case, and the lack of clarity as to what conduct was proscribed

would have prevented a proper consideration of § 5D1.3(b). In fact, though
9

requested, the district court expressly refused to make specific findings as to

Condition 16 other than it was a “reasonable requirement” that the district court

was authorized to impose. We do not hold that specific findings must be made by

the district court on each § 5D1.3(b) factor in every case. In a proper case, §

5D1.3(b) may be satisfied where the condition being imposed is clear and

undisputed facts contained in the Presentence Investigation Report (“PSI”) support

the condition under a § 5D1.3(b) analysis. See Bull, 214 F.3d at 1278 (relying

solely on information in the PSI to find no abuse of discretion in imposing the

challenged required condition).

We simply hold that Condition 16 was not validly imposed because, given

its breadth and vagueness, a court could not reasonably determine that it meets the

“reasonably related” requirements of § 5D1.3(b)(1) or the “no greater deprivation”

requirement of § 5D1.3(b)(2). Accordingly, we VACATE the portion of

Ridgeway's sentence imposing Condition 16 as a condition of supervised release.