United States Court of Appeals

For the Eighth Circuit

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No. 14-2269

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Christopher J. Harris,

lllllllllllllllllllll Defendant - Appellant.

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: January 13, 2015

 Filed: July 21, 2015

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

After Christopher J. Harris sold cocaine to an undercover officer at his

residence, police obtained a search warrant and discovered cocaine and several

firearms on July 17, 2013. Harris eventually pleaded guilty to unlawful possession

of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). 
At sentencing, the district court determined that Harris was an armed career

criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of

180 months’ imprisonment. The court, on its own initiative, also imposed a novel

special condition of supervised release that “there be no unprotected sex activities

without probation office approval during the period ofsupervised release.” In a later

written order and judgment, the court attempted to modify the special condition to say

that Harris “shall use contraceptives before engaging in sexual activity that may

otherwise cause pregnancy unless such use would violate his religious scruples or is

expressly rejected by his sexual partner.” On appeal, Harris challenges both the

armed career criminal determination and the special condition.

I.

We consider first the term of imprisonment. The Armed Career Criminal Act

providesfor a minimum term of fifteen years’ imprisonment for a felon in possession

of a firearm, if the defendant has three previous convictions for a “violent felony” or

a “serious drug offense,” committed on occasions different from one another. 18

U.S.C. § 924(e)(1). Otherwise, the statutory maximum punishment for Harris’s

offense is ten years’ imprisonment. 18 U.S.C. § 924(a)(2). Before committing the

offense in this case, Harris had sustained one conviction for felony assault and two

convictions for felony sale of a controlled substance on different occasions. The

district court thus concluded that Harris had previous convictions for one violent

felony and two serious drug offenses, and that he wassubject to enhanced punishment

under § 924(e)(1). The court imposed the statutory minimum term of fifteen years.

On appeal, Harris argues that whether his prior drug convictions were

committed on different occasions is a fact that increases the prescribed punishment

for his offense. Relying on Alleyne v. United States, 133 S.Ct. 2151, 2160-61 (2013), 

he argues that the district court violated his rights under the Sixth Amendment by

finding that his prior offenses were committed on different occasions without

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requiring that the fact be proved beyond a reasonable doubt to a jury or admitted by

the defendant. According to Almendarez-Torres v. United States, 523 U.S. 224, 243-

44 (1998), however, recidivism is not an element that must be admitted or proved to

a jury. The Court in Alleyne did not revisit that “narrow exception” to the general

rule. 133 S. Ct. at 2160 n.1. Whether prior offenses were committed on different

occasions is among the recidivism-related facts covered by the rule of AlmendarezTorres. United States v. Evans, 738 F.3d 935, 936-37 (8th Cir. 2014) (per curiam). 

In any event, Harris admitted that his prior drug offenses were committed on two

different occasions during a colloquy at his plea hearing, R. Doc. 32, at 9-10, and by

not objecting to the factual recitation in the presentence report. United States v. Paz,

411 F.3d 906, 909 (8th Cir. 2005). Harris’s challenge to the application of § 924(e)

is therefore without merit.1

II.

A.

The district court raised the special condition ofsupervised release concerning

Harris’s sexual activity for the first time during a brief discussion with counsel

immediately before the sentencing hearing. The probation office did not recommend

the condition. The government did not suggest it. The defendant received no

advance notice about it. The district court acknowledged that it was “probably a

surprise to everyone.”

The district court observed that Harris had fathered ten children out of wedlock

with seven different women and declared that Harris’s conduct was “creating a very

Harris does not assert that his prior conviction for felony assault was counted

1

as a violent felony under the “residual clause” of § 924(e)(2)(B)(ii), rather than under

§ 924(e)(2)(B)(i), so the invalidation of the residual clause in Johnson v. United

States, No. 13-7120, 2015 WL 2473450 (U.S. June 26, 2015), has no effect here.

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serioussocial problem” that was “more seriousthan a lot of the thingsthat we do deal

with on conditions ofsupervised release.” During the hearing, the court again raised

a “social problem of apparently a great deal of unprotected sex.”

Harris, through counsel, objected to the suggested condition, stating that there

was no evidence that the mothers of his ten children were incapable of caring for

them. He argued that “[b]abies aren’t diseases,” and that many single mothers are

capable of caring for children by themselves. Harris also alluded to a “right to

procreate” and raised logistical problems that would arise from requiring the

probation office to approve his sexual activities. The government described the

court’s proposal as “an unexpected situation” and made no recommendation on the

condition. In his allocution, Harris declared that none of his children was “a

hindrance to the government.”

The district court then commented further on its suggested condition ofrelease. 

The court said that it would “back away” if there was “a religious problem,” because

it doubted the court’s authority to modify First Amendment rights. The court

explained that if Harris advised the probation office that he had a spouse or a partner

with whom he was living on a regular basis, and that the couple wanted to have

children, then the court was “confident that the probation officer would allow

unprotected sex” or the court would direct that it be permitted. The court explained

that it did not mean to be “targeting” Harris, and that the court contemplated imposing

a condition regarding sexual activity “rather frequently when there appears to be a

problematic number of illegitimate children.”

In the oral pronouncement of sentence, the court directed that Harris must

comply with an “additional special condition that there be no unprotected sex

activities without probation office approval during the period ofsupervised release.” 

The court then declared that there are many times when “the worst conduct by a

defendant, although not illegal, is the apparent irresponsibility in a sexual manner,”

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and expressed concern about “its effect on society” and “its effect on the children

who have frequently, not perhaps in this case, frequently no financial or emotional

support from a defendant.”

One week later, the district court filed a memorandumto counsel reporting that

the judgment form submitted to the court included “an accurate statement of the

additional condition ofsupervised release” pronounced in the courtroom, to wit: “the

defendant shall not participate in any unprotected sex activities without approval of

the Probation Office during the term of supervision.” The court wrote that its

comments atsentencing also had referred to its “supposition that the Probation Office

would defer to religious scruples and to the desire of couples to conceive children.” 

The court stated that on further consideration, it believed that the condition should

include “specific language to that effect, and that open-ended discretion by the

Probation Officer is inappropriate.”

The memorandum explained that the written judgment would substitute “more

limited” language for the oral pronouncement, providing that “the defendantshall use

contraceptives before engaging in sexual activity thatmay otherwise cause pregnancy

unless such use would violate his religious scruples or is expressly rejected by his

sexual partner.” The court believed that because the substitute language was “less

restrictive and more clearly articulated than the original wording,” there was no need

for “a reopened sentencing hearing.”

The court then acknowledged the likelihood of an appeal and closed the

memorandum as follows:

We deal with various types of less serious social evils during

supervision, including minimal drug usage, unlicensed driving,

associations with felons and being present in a barroom. Irresponsible

sexual conduct by defendants under supervision greatly burdens women

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who may be unwilling to conceive children as well as offspring

routinely abandoned by biological fathers.

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B.

Conditions of supervised release are governed by 18 U.S.C. § 3583(d). The

court may order a special condition of release if it is consistent with any pertinent

policy statement of the Sentencing Commission and satisfies two other criteria. The

condition must be “reasonably related to” four factors: the nature and circumstances

of the offense and the history and characteristics of the defendant, the need to afford

adequate deterrence to criminal conduct, the need to protect the public from future

crimes of the defendant, and the need to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in the

most effective manner. The condition also must “involve[] no greater deprivation of

liberty than isreasonably necessary” to afford adequate deterrence, protect the public

from future crimes of the defendant, and provide the defendant with needed training

and medical care. 18 U.S.C. § 3583(d); see 18 U.S.C. § 3553(a). 

Harris renews his objections to the special condition of supervised release,

arguing both that the district court abused its discretion under § 3583(d) and violated

Harris’s constitutionalrights. The government does not address the special condition

pronounced at sentencing, but defends the special condition set forth in the district

court’s written judgment. According to the government, the written condition

“merely requires [Harris] to follow the law and not engage in non-consensual sexual

contact or essentially engage in sexual assault.”

This defendant is said to offer financial support and

2

nurturing for his illegitimate children. There are ten such

children, with numerous mothers. In my view, this would

not preclude addressing a general problem.

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This argument is unsupported. No law cited by the government requires a man

to use contraception unless his sexual partner “expressly rejects” its use. If a man

proposes to engage in consensual sexual activity without mentioning contraception,

and a woman voluntarily agrees without mentioning contraception, then there is no

violation of law. If a man proposes to forego use of contraception while engaging in

consensualsexual activity, and a woman voluntarily agrees, then there is no violation

of law. That the woman in neither case “expressly rejects” a proposed use of

contraceptives does not mean that the man has committed sexual assault or engaged

in non-consensual sexual contact. The written condition imposes a restriction that

exceeds a general requirement to obey the law. This point evidently was not lost on

the district court, which described Harris’s pastsexual conduct as “irresponsible” but

“not illegal.”

Harris, like the government, addresses the written version of the special

condition, but the written judgment is not the correct focus. It is well established that

when an oral pronouncement ofsentence conflicts with the written judgment, the oral

pronouncement controls. Hill v. United States ex rel. Wampler, 298 U.S. 460, 464-65

(1936); United States v. Morais, 670 F.3d 889, 895 (8th Cir. 2012); United States v.

Brave, 642 F.3d 625, 627 (8th Cir. 2011); United States v. Durham, 618 F.3d 921,

945 (8th Cir. 2010). The sentencing court cannot alter the terms of a sentence once

the defendant has begun to serve it, Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir.

1979), and an after-the-fact written judgment cannot cure an illegal sentence imposed

in court. United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008).

The special condition as pronounced orally provided in substance that Harris

“shall not participate in any unprotected sex activities without approval of the

Probation Office during the term of supervision.” This special condition cannot be

sustained.

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For one thing, the special condition as pronounced is even broader than the

novel restriction on fathering children that the court seemed to contemplate during

the hearing. By restricting “unprotected sex activities,” without limitation, the

condition purports to regulate conduct that could not result in pregnancy. The

condition is not even reasonably related to the purposesthat motivated the condition.

The special condition also is not reasonably related to the statutory factors set

forth in § 3583(d). As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where

this court set aside a special condition attempting to regulate a defendant’s fathering

of children while on supervised release, the condition here is not related to the nature

and circumstances of Harris’s offense. The court did not find that Harris’s sexual

activity wasrelated to his unlawful possession of a firearm. Nor did the district court

explain how restrictions on Harris’s sexual activity would deter Harris from future

criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s

training, medical care, or correctional treatment. For similar reasons, the condition

impermissibly involves a greater deprivation of liberty than is reasonably necessary

to afford adequate deterrence, protect the public from future crimes, and provide the

defendant with needed training, care, or treatment. As in Smith, the district court

sought to address a perceived social problem that does not have the required nexus

to factors that guide sentencing in a federal criminal case.

We conclude that the district court exceeded its authority under § 3583(d) when

it imposed the special condition of supervised release at sentencing. The revised

condition included in the written judgment is not properly before us, but it would of

course raise similar issues with respect to the requirement that a condition bear a

reasonable relationship to the statutory factors that govern sentencing. 

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For the reasons stated, we modify the judgment of the district court to delete

the eighth additional condition of supervised release. The judgment of the district

court is affirmed as modified. See United States v. Juan-Manuel, 222 F.3d 480, 488

(8th Cir. 2000).

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