United States of America v. ROBERT D. McK ISSIC

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3377
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R OBERT D. McK ISSIC ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 30028—Jeanne E. Scott, Judge .
____________
A RGUED S EPTEMBER 19, 2005—DECIDED N OVEMBER 8, 2005
____________
Before R IPPLE , W OOD and W ILLIAMS , Circuit Judges.
R IPPLE , 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 contem-
plating such special conditions. For the reasons set forth in
the following opinion, we affirm the judgment of the district
court.

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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 num-
ber 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 commit-
ted 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

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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 parapher-
nalia 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 deter-
mine 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 employ-
ment 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

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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 commu-
nity 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 reputa-
tion 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

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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) reason-
ably related to (A) the nature and circumstances of the
offense and the history and characteristics of the defen-
dant; (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 de-
fendant “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

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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

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No. 04-3377 7
remedy—and, for Mr. McKissic, an opportunity for rehabili-
tation. 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 some-
what 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 situa-
tion 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-

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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 determi-
nation. 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 com-
munity service.

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No. 04-3377 9
Mr. McKissic submits that the conditions that he at-
tempt 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 occupa-
tion,” 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 ig-
nore 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 defen-
dant 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

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10 No. 04-3377
discretionary condition that a defendant “work in commu-
nity 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

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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, educa-
tion, 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 appropri-
ate 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.”

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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 involv-
ing 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 com-
plete 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-

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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 stat-
ute nor the guidelines provided Mr. McKissic with no-
tice 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 neces-
sary.
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 condi-
tions 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

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that the court “may modify, reduce, or enlarge the condi-
tions 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.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-8-05

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