United States of America v. Jeffery Paul Miller

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 2, 2016
Decided March 17, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
Nos. 14‐3644 & 15‐2727
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JEFFERY PAUL MILLER,
Defendant‐Appellant.
Appeals from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:14CR77‐001
Robert L. Miller, Jr.,
Judge.
O R D E R
Jeffery Miller agreed in writing to waive his right to appeal his sentence, but he
has now thought better of it and seeks to challenge his sentence nonetheless. After
pleading guilty to transporting stolen goods interstate, see 18 U.S.C. § 2314, and to
money laundering, see 18 U.S.C. § 1956(a)(1)(B)(i), the district court sentenced him to 135
months’ imprisonment and two years’ supervised release. In his first appeal (No.
14‐3644), Miller argues that this court should ignore his appeal waiver and order a
resentencing because the district court imposed unconstitutionally vague conditions of
supervised release. After he filed that appeal, the district court granted a motion from
the government to fix the challenged conditions. Although Miller has no particular
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 6 --

Nos. 14‐3644 & 15‐2727 Page 2
objection to the changes the court made, he has appealed from the revised sentence (No.
15‐2727), on the ground that the court lacked the power to modify his conditions. We
consolidated the two appeals. We now dismiss the first one, No. 14‐3644, because Miller
cannot escape his appeal waiver; we affirm in No. 15‐2727, based on our conclusion that
the district court had the authority to modify the conditions of supervised release
despite the pending appeal, and it committed no error in doing so.
I
For two years Miller made a living by stealing copper wire from his former
employer in Indiana and selling the wire in Michigan. To hide the source of the money,
Miller gambled his profits at casinos. When he won, he deposited the money in a bank
account; to avoid suspicion, he kept his deposits below $10,000. In the end, Miller stole
and laundered over a million dollars’ worth of copper wire.
After he was caught, Miller and the government reached a written plea deal. In
return for a favorable sentencing recommendation from the government, Miller waived
his “right to appeal or to contest [his] conviction and all components of [his] sentence, or
the manner in which [his] conviction or [his] sentence was determined or imposed, to
any court on any ground.” The district court accepted his guilty plea on that basis.
Sentencing followed. A week before the sentencing hearing, the district court
provided Miller and the government with twelve proposed conditions of supervised
release. Miller objected to none of them. At the sentencing hearing, the district court
imposed two years’ of supervised release, “the conditions of which would be the terms
that [the court] proposed in that order last week.” It also sentenced Miller to 120 months’
imprisonment for transporting the stolen wire across state lines, to be served
concurrently with 135 months’ imprisonment for his money laundering.
Despite his waiver, Miller appealed. He now argues that the following three
conditions of supervised release are unconstitutionally vague, and that he is entitled to a
full resentencing:
7. The defendant shall not travel outside the district without the
permission of the probation officer, who shall grant such permission unless
the travel would significantly hinder the defendant’s rehabilitation.

-- 2 of 6 --

Nos. 14‐3644 & 15‐2727 Page 3
9. The defendant shall permit a probation officer to meet the defendant at
any time at home or elsewhere and shall permit confiscation of any
contraband the probation officer observes in plain view.
10. The defendant shall not intentionally associate with any person who
has been convicted of a felony without permission of the probation officer.
The government responded to Miller’s appeal by asking the district court to use
its authority under 18 U.S.C. § 3583(e)(2) to modify the three challenged conditions.
Miller objected, arguing that “he is entitled to a full re‐sentencing and not just
modification of the conditions of supervised release.” The district court, however,
granted the government’s motion. It recognized that “[a]mending a judgment during an
appeal is unusual, but district courts have discretion to modify supervised release terms
during the pendency of an appeal.” It concluded that the risk of disruption to the appeal
was minimal because the proposed modifications conformed to recent guidance from
this court. Significantly, the district court added that “[t]he changes the government
seeks would not lead the [district] court to modify any other aspect of Mr. Miller’s
sentence,” and so modifying the conditions “might mean the district court won’t need to
do anything more.” The district court modified the conditions by inserting the italicized
language:
7. The defendant shall not travel knowingly outside the district without
the permission of the probation officer, who shall grant such permission
unless the travel would significantly hinder the defendant’s rehabilitation
or present a public safety risk.
9. The defendant shall permit a probation officer to meet the
defendant at any time at home or elsewhere and shall permit confiscation
of any contraband the probation officer observes in plain view. The
probation officer shall not conduct such a visit between the hours of 11:00 p.m. and
7:00 a.m. without specific reason to believe a visit during those hours would reveal
information or contraband that wouldn’t be revealed through a visit during regular
hours.
10. The defendant shall not intentionally meet, communicate, or otherwise
interact with any person who defendant knows to have been convicted of a
felony, without permission of the probation officer.

-- 3 of 6 --

Nos. 14‐3644 & 15‐2727 Page 4
Miller challenges these changes, and more broadly what he sees as the district court’s
evasion of his right to a full resentencing, in No. 15‐2727.
II
A
We begin with appeal No. 14‐3644. Miller argues that because the three
challenged conditions, as originally crafted, are unconstitutionally vague, his appeal
waiver does not bar his challenge to them. They remain in place, he asserts, because the
district court did not have jurisdiction to fix them while this appeal was pending. The
only possible outcome in his view is for this court to restore the original conditions, and
then to vacate the entire sentence and remand for a full resentencing.
Miller is getting ahead of the game. The first question we must resolve is whether
his appeal waiver permitted him to pursue appeal No. 14‐3644. It is well established that
a knowing, voluntary, and unambiguous waiver of the right to appeal generally bars
appellate review. United States v. Lacy, No. 15‐2740, 2016 WL 624790, at * 2 (7th Cir. Feb.
17, 2016). Miller does not contend that he did not understand or freely approve the
waiver, nor does he dispute that it explicitly bars an attack on his sentence, including his
conditions of supervised release. See United States v. Sines, 303 F.3d 793, 797–99 (7th Cir.
2002). In addition, he does not contest that he received notice of those conditions before
sentencing, that he had a chance to complain about them if he thought they were
unclear, and that he said nothing. Under the circumstances, it is hard to see how his
appeal is not barred. See United States v. Smith, 759 F.3d 702, 706–07 (7th Cir. 2014); United
States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010).
Miller thinks he has found a way to circumvent his waiver based on a limited
exception, expressed in United States v. Adkins, 743 F.3d 176, 192–94 (7th Cir. 2014), but
we recently rejected application of the Adkins exception in identical circumstances.
See United States v. Campbell, No. 15‐1188, 2016 WL 685119 (7th Cir. Feb. 19, 2016). In
Adkins, a condition of supervised release barred the defendant from viewing or listening
to “any pornography or sexually stimulating material or sexually oriented material or
patronize locations where such material is available.” Id. at 191 (emphasis added). Because
this condition barred Adkins from protected free expression such as using a library or
computer, we held that “fundamental fairness” required us to overlook that particular
appeal waiver. Id. at 192–94. The defendant in Campbell tried to extend the Adkins
holding to his situation, which raised the same three conditions that Miller challenges

-- 4 of 6 --

Nos. 14‐3644 & 15‐2727 Page 5
here. We were not persuaded. None of the conditions Campbell, and now Miller, are
challenging (prohibiting unapproved out‐of‐district travel, requiring in‐home visits, and
barring unapproved contact with known felons) threatens to muzzle protected speech.
See Campbell, 2016 WL 685119 at *2. Campbell demonstrates why Adkins does not help
Miller. His appeal waiver is enforceable, and it requires us to dismiss case No. 14‐3644.
B
That brings us to appeal No. 15‐2727, which challenges the appropriateness of the
new order modifying the conditions of supervised release. Miller argues that, because
the first appeal was pending, the district court lacked jurisdiction to use § 3583(e)(2) to
fix the conditions.
Before reaching the merits of his argument, we say another word about the appeal
waiver, and we address Miller’s standing to appeal the modified conditions. Courts have
suggested that appeal waivers may not bar appeals where the government has asked the
district court to modify conditions of supervised release. See United States v. Scallon,
683 F.3d 680, 684 n.4 (5th Cir. 2012) (broad appeal waiver bars appeal from denial of
defendant’s motion to modify conditions of supervised release under § 3583(e)(2), but
may allow appeal from a decision if the government had moved to modify); see also
United States v. Wilson, 707 F.3d 412 (3d Cir. 2013) (appeal from order modifying
conditions of supervised release falls outside the scope of appeal waiver); United States v.
Lonjose, 663 F.3d 1292, 1302 (10th Cir. 2011) (same). And the government here does not
argue that the appeal waiver bars appeal No. 15‐2727. See United States v. Kieffer, 794 F.3d
850, 852 (7th Cir. 2015) (government’s silence about appeal waiver can waive reliance on
it). The government’s concession alone is enough to allow us to proceed without
confronting the broader issues.
We are also satisfied that Miller has standing to appeal. Generally a party not
harmed by a judgment lacks standing to appeal. See Parr v. United States, 351 U.S. 513,
516–17 (1956); Wachovia Sec., LLC v. Loop Corp., 726 F.3d 899, 907 (7th Cir. 2013); Chase
Manhattan Mortg. Corp. v. Moore, 446 F.3d 725, 727 (7th Cir. 2006). Viewed one way, Miller
is now under less restrictive conditions as a result of the modifications. But the modified
judgment still leaves Miller under conditions of supervised release. Because those
conditions restrict his liberty, he, like any sentenced defendant, has standing to appeal.
Cf. United States v. McAndrews, 12 F.3d 273, 278–79 (1st Cir. 1993) (criminal defendant has
standing to appeal when “dissatisfied with the quantum of relief obtained” even though

-- 5 of 6 --

Nos. 14‐3644 & 15‐2727 Page 6
he received some reduction in term of imprisonment under Federal Rule of Criminal
Procedure 35(b)).
These procedural victories are probably cold comfort, however, because on the
merits Miller cannot prevail. We held in United States v. Ramer, 787 F.3d 837, 838–39 (7th
Cir. 2015), that while an appeal is pending a district court retains jurisdiction under
§ 3583(e)(2) to modify conditions of release. One member of the court, in a concurring
opinion in United States v. Taylor, 796 F.3d 788, 797–98 (7th Cir. 2015), questioned
whether Ramer correctly decided that a district court retains jurisdiction to modify
conditions during an appeal. But this case is not a good candidate for the closer look at
these issues that he recommended. Miller has no quarrel with the modifications other
than his desire for a full resentencing. But a proceeding under § 3583(e)(2) is not an
opportunity for a full resentencing. Even if, on Miller’s premise that the district court’s
modifications were ineffective, we were to remand his case for the district court to fix the
conditions now, Miller would still not be entitled to a resentencing. Vague conditions
like those in Miller’s original sentence require only a remand for clarification. See United
States v. Purham, 795 F.3d 761, 767–68 (7th Cir. 2015); United States v. Sewell, 780 F.3d 839,
851–52 (7th Cir. 2015). Moreover, the district court has already announced that clarifying
the challenged conditions “would not lead the court to modify any other aspect of Mr.
Miller’s sentence.”
Finally, we note that the modified conditions go a long way toward curing the
kind of problems we have flagged in the past. They now include a scienter requirement,
they replace the word “associate” with more precise verbs, and they put time limits on
home visits. See United States v. Armour, 804 F.3d 859, 869–70 (7th Cir. 2015); Kappes, 782
F.3d at 849–50. The only arguable error is in condition number 9, which allows the
probation officer to visit Miller at home “or elsewhere.” As we noted in United States v.
Henry, No. 14‐3810, 2016 WL 629992, at *2–3 (7th Cir. Feb. 17, 2016), “elsewhere” does
not limit the visits to a reasonable location. Miller, however, does not raise this argument
(he attacks only the lack of time restriction in the original condition), and so it is waived.
In any case, if he eventually finds that the probation officer unreasonably abuses this
condition, he will be free to seek a modification under § 3583(e)(2). See United States v.
Neal, 810 F.3d 512, 518–19 (7th Cir. 2016).
Accordingly we DISMISS No. 14‐3644 as barred by the appeal waiver and we
AFFIRM the district court’s order in No. 15‐2727.

-- 6 of 6 --