In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-2435 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ERIC S. SPIVEY, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:13-cr-0787 — Virginia M. Kendall, Judge. 

____________________ 

ARGUED MAY 16, 2019 — DECIDED JUNE 7, 2019 

____________________ 

Before BAUER, HAMILTON, and ST. EVE, Circuit Judges. 

ST. EVE, Circuit Judge. After the district court revoked Eric 

Spivey’s supervised release, it sentenced him to 24 months in 

custody. Spivey now argues the district court violated due 

process because it sentenced him based on a nonexistent condition of supervised release. We disagree and affirm. 

 
2 No. 18-2435 

I. Background 

In September 2005, Spivey was convicted of predatory 

criminal sexual assault in the Circuit Court of Cook County, 

Illinois. This conviction required him to register under the Sex 

Offender Registration Notification Act. In April 2014, Spivey 

pleaded guilty in federal district court to one count of knowingly failing to register as a sex offender in violation of 18 

U.S.C. § 2250(a). The district court sentenced him to 41 

months in prison and a five-year term of supervised release. 

Relevant to this appeal is Spivey’s supervised release condition that he truthfully answer his probation officer’s inquiries, 

which the original judgment contained. For reasons unclear 

in our record, the district court struck that condition and others in an amended judgment issued about two weeks later. 

Spivey began serving his term of supervised release in October 2016. Throughout that term, probation officers submitted multiple special reports reflecting eighteen separate violations of Spivey’s conditions. From June 2017 until Spivey’s 

final revocation hearing approximately one year later, the district court conducted multiple rule to show cause hearings. 

During these hearings, Spivey explained that because he was 

homeless, he had challenges registering as a sex offender. 

Spivey also told the court he could not fulfill his supervised 

release conditions due to his work schedule, lack of funds, 

and illnesses requiring hospitalization. 

In March 2018, Spivey failed to appear before the district 

court on three separate occasions. His counsel informed the 

court that Spivey said he was in the hospital, but when Spivey 

failed to appear at the third status hearing, counsel indicated 

that he did not know his client’s whereabouts. The district 

court then issued a bench warrant for Spivey’s arrest. Law 
No. 18-2435 3

enforcement arrested Spivey on March 28, 2018, at his girlfriend’s house, where she lived with her two young children. 

The district court conducted Spivey’s final revocation and 

sentencing hearing on June 14, 2018. The government called 

two witnesses to testify. First, Spivey’s probation officer testified that he went to the Chicago Police Department’s Office 

for Criminal Registration, where he found that Spivey had not 

registered as a sex offender. The probation officer stated that 

Spivey explained he did not register because he did not have 

the money to complete the registration, and, that during the 

winter months, he had to wait outside in the cold for hours to 

register. Spivey’s probation officer, however, observed that 

the registration office had a waiting room and that the Chicago Police Department waives registration fees under certain 

circumstances. 

Further, the probation officer testified that Spivey missed 

an October 2017 meeting with him claiming to be in the hospital. After requesting Spivey’s medical documentation, the 

officer discovered that Spivey had not been in the hospital on 

the meeting date. The probation officer also testified that law 

enforcement arrested Spivey at his girlfriend’s home where 

he was living, which contradicted Spivey’s assertion that he 

was homeless and sleeping on public transportation. 

Next, the government called a senior inspector for the 

United States Marshals Service who testified she arrested 

Spivey on two occasions. The first time was in August 2017 at 

Spivey’s sister’s home on a state charge of failing to register 

as a sex offender. When arresting Spivey, his sister told the 

inspector that Spivey was living with her. In addition, the inspector observed a 16- or 17-year-old living at his sister’s 

home. 
4 No. 18-2435 

The inspector also arrested Spivey on March 28, 2018, pursuant to the district court’s warrant. She explained that she 

knew Spivey would be at his girlfriend’s home because the 

State of Illinois had issued a driver’s license to Spivey with 

that address. The inspector talked to Spivey’s girlfriend at the 

time of his arrest, and she explained that she had two children, ages 8 and 10, living with her. Spivey’s girlfriend added 

that she had been dating Spivey for about four months and 

had no idea he was a sex offender. 

At his revocation hearing, Spivey admitted that he had 

failed to register as a sex offender amounting to four separate 

violations, which were numbered Violations 1, 6, 10, and 14. 

Based on evidence in the record, the district court also found 

Spivey had violated three other supervised release conditions, including another violation of failing to register as a sex 

offender (Violation 18), unsupervised private contact with 

minors at his sister’s home (Violation 9), and commission of a 

state crime (Violation 8). 

Violation 17, which Spivey calls the nonexistent supervised release condition, was listed in the probation officer’s 

February 2018 special report. It required Spivey to answer his 

probation officer’s inquiries truthfully. The district court 

mentioned Violation 17 at the revocation hearing. It did not, 

however, make a finding that Spivey committed Violation 17. 

Instead, the court concluded that Spivey’s March 2018 arrest 

at his girlfriend’s house where he was living with her two minor children established he had unsupervised private contact 

with minors. In addressing the violation, the court said: 

Court: And then Violation 17 is the most recent 

arrest and him living with the two children, 8 

and 10, with his girlfriend, correct? 
No. 18-2435 5

Prosecutor: That’s correct. 

Court: And I also find the evidence is sufficient 

to support that conclusion. 

At sentencing, the district court calculated the advisory 

sentencing range under the Chapter 7 Policy Statement as 21 

to 27 months based on the supervised release violations that 

were Grade B offenses and Spivey’s criminal history category 

of VI. See U.S.S.G. § 7B1.1(a)(2). The court sentenced Spivey to 

24 months in custody, which was the maximum sentence because his original offense was a Class C felony. See 18 U.S.C. 

§ 3583(e)(3); United States v. Ford, 798 F.3d 655, 661 (7th Cir. 

2015) (“Title 18 U.S.C. § 3583 limits the length of the prison 

term a court may impose after it revokes a defendant’s supervised release.”). Spivey appealed. 

II. Discussion 

On appeal, Spivey argues the district court violated his 

due process right to be sentenced on the basis of accurate information because the court relied on a violation of a non-existent condition of supervised release when imposing his sentence, namely, the condition that he truthfully answer all inquires of his probation officer. Spivey did not object to this 

alleged procedural error; therefore, we review the court’s sentencing decision for plain error. United States v. Kopp, 922 F.3d 

337, 341 (7th Cir. 2019). Under plain error review, we will reverse if Spivey demonstrates “(1) an error or defect, (2) the 

error is clear or obvious and not subject to reasonable dispute, 

(3) the error affected substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Freed, 921 F.3d 716, 720 

(7th Cir. 2019). 
6 No. 18-2435 

To establish a Fifth Amendment due process violation, 

Spivey “must show that inaccurate information was before 

the court and that the court relied upon it.” United States v. 

Pennington, 908 F.3d 234, 239 (7th Cir. 2018). A sentencing 

court relies on inaccurate information if it gives specific consideration to this information before imposing a sentence or 

imposes the defendant’s sentence at least in part on the misinformation. United States v. Tucker, 404 U.S. 443, 447 (1972); 

United States v. Miller, 900 F.3d 509, 513 (7th Cir. 2018) (per 

curiam). We have said this standard requires only that the 

false information was part of the basis of a defendant’s sentence. Id. 

Spivey cannot meet this standard on plain-error review. 

The district court held a lengthy hearing and made specific 

findings on Spivey’s violations. As discussed, the district 

court found Spivey had violated several conditions of supervised release, including five violations for failing to register 

as a sex offender, one violation of unsupervised private contact with minors, and one violation based on the commission 

of a state crime. 

As to the truthfulness condition, nothing in the record 

shows that the district court considered the nonexistent condition when imposing Spivey’s sentence. The district court 

mentioned Violation 17. But the same sentence in the transcript reveals that the district court’s focus was on the fact that 

Spivey had been “living with the two children, 8 and 10,” 

which was the conduct evidenced when Spivey was most recently arrested. When the district court did assess Spivey’s 

truthfulness, it was appropriately in the course of reciting his 

history and characteristics under 18 U.S.C. § 3553(a), not in 

finding a release violation. 
No. 18-2435 7

The fairest reading of the transcript, then, is that the district court simply misspoke in referencing Violation 17. And 

that conclusion does not change because the final judgment 

reflects a finding of Violation 17. Our case law makes clear 

that the oral pronouncement during sentencing controls. 

United States v. Hudson, 908 F.3d 1083, 1085 (7th Cir. 2018). 

Spivey has thus failed to establish that the court plainly erred. 

Spivey makes a vague argument that the sentencing court 

improperly emphasized his lies when imposing his sentence. 

This argument falls flat because he does not challenge the 

court’s underlying factual findings concerning his numerous 

lies. See 18 U.S.C. § 3661 (“No limitation shall be placed on the 

information concerning the background, character, and conduct of a person convicted of an offense which a court of the 

United States may receive and consider for the purpose of imposing an appropriate sentence.”). Spivey therefore cannot 

establish that “the judge misapprehended the record with respect to an aggravating factor that the judge considered important,” Miller, 900 F.3d at 514, as he argues. 

Also under plain error review, Spivey must show the district court’s alleged error affected his substantial rights. 

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018). 

In other words, Spivey must establish he was prejudiced by 

the district court’s alleged error. Miller, 900 F.3d at 512-13. 

Spivey cannot make this showing either. As discussed, the 

court did not err because it found that Spivey violated the 

condition pertaining to minors—not that he lied to his probation officer. Even if the district court had erred, Spivey cannot 

show prejudice because at his revocation hearing, he admitted to four Grade B supervised release violations for failing to 

register as a sex offender. And only one Grade B violation 
8 No. 18-2435 

results in an advisory guideline range of 21 to 27 months with 

Spivey’s criminal history category of VI—the same guideline 

range the district court considered in the first instance. See

U.S.S.G. §§ 7B1.1(b), 7B1.4(a). Because the alleged error did 

not affect Spivey’s advisory guideline range, there is no likelihood that he would have received a different sentence absent any such error. United States v. Kruger, 839 F.3d 572, 580 

(7th Cir. 2016). 

We AFFIRM the district court’s judgment.