United States of America v. Abdullah Shabazz, also known as DANIEL CLINCY

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3948
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABDULLAH SHABAZZ, also known as DANIEL CLINCY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 127--J.P. Stadtmueller, Chief Judge.
Argued September 29, 2000--Decided October 6, 2000/*
Before EASTERBROOK, RIPPLE and EVANS, Circuit Judges.
PER CURIAM. Abdullah Shabazz seeks review of the
sentence of supervised release imposed after he
was found to have violated his parole. Because
Mr. Shabazz already has completed that portion of
the supervised release period that was to be
served in a community corrections facility, we
cannot address the legality of such a condition
on his supervised release. For the reasons set
forth in this opinion, however, we hold that the
district court should not have imposed a three-
year term of supervised release. We therefore
remand this case with directions that the court
set the term within the one-year maximum
permitted by statute.
I
BACKGROUND
Abdullah Shabazz entered a plea of guilty to
misprision of felony on July 30, 1999. The
district court imposed a sentence of five years
of probation commencing July 30, 1999. It also
imposed a one-year period of supervised release
as well as a restitution obligation.
On October 6, 1999, Mr. Shabazz’s probation
officer filed a Petition to Revoke Probation on
the ground that Mr. Shabazz had not complied with
the conditions of probation. Consequently, Mr.
Shabazz was arrested on November 4, 1999, and
appeared with counsel before the district court

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the following day. At that hearing, Mr. Shabazz
waived his right to a revocation hearing and
stipulated to the accuracy of five of the six
violations set forth in the Petition to Revoke
Probation and the Revocation Hearing Report. The
district court denied defense counsel’s request
to modify the probation pursuant to U.S.S.G. sec.
7B1.3(a)(2). The court then revoked Mr. Shabazz’s
probation and sentenced him to six months in
prison and three years of supervised release. As
a condition of this sentence of supervised
release, Mr. Shabazz was ordered to spend 161
days in a community corrections facility. Neither
Mr. Shabazz nor his counsel objected to the
district court’s imposition of the 161 days in a
community corrections facility as a condition of
Mr. Shabazz’s supervised release, nor did they
object to the three-year period of supervised
release.
Mr. Shabazz then filed a timely notice of appeal
on November 12, 1999. Appellate counsel filed a
no-merit brief and motion to withdraw. This court
denied counsel’s motion to withdraw and ordered
him to file a brief addressing the issue of
whether the district court was authorized by
statute to require that the defendant reside at a
community corrections facility as a condition of
his supervised release. After the filing of the
new briefs, counsel filed a motion asking that
the court take notice that the sentence of
supervised release for a period of three years
was in excess of the statutory maximum of one
year permitted by 18 U.S.C. sec. 3583(b)(3). The
Government filed a reply that noted its agreement
with the defendant on this latter point. We
directed that the motion and the Government’s
reply be treated as supplemental briefs.
II
DISCUSSION
1.
Mr. Shabazz has argued to this court that the
district court erred in imposing, as a condition
of supervised release, that he serve the first
161 days of his period of supervised release in a
community corrections facility. Mr. Shabazz
contends that this condition is not permitted by
the terms of 18 U.S.C. sec. 3583(d). At oral
argument, however, counsel informed us that Mr.
Shabazz already had completed that period of his
supervised release that was to be served in a
community corrections facility. Moreover, counsel
was aware of no collateral consequences that
still might burden Mr. Shabazz because of the
imposition of that condition. Nor is it likely
that Mr. Shabazz will find himself in this
situation again and that the matter necessarily
would evade review. See Weinstein v. Bradford,

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423 U.S. 147, 149 (1975). With respect to Mr.
Shabazz’s present sentence, there is no
possibility of such repetition. It is a matter of
pure speculation as to whether Mr. Shabazz will
ever again find himself under such a sentence and
in circumstances in which review will not be
possible. See Preiser v. Newkirk, 422 U.S. 395,
403 (1975). Under these circumstances, Mr.
Shabazz’s argument is moot and cannot be
addressed by this court.
2.
The parties are in agreement that the district
court erred in sentencing Mr. Shabazz to a period
of supervised release of three years. Although
this matter was not raised before the district
court, we can address it as a matter of plain
error. See United States v. Hall, 212 F.3d 1016,
1022 (7th Cir. 2000) (noting that challenges
raised for the first time on appeal are waived
and, therefore, reviewed only for plain error);
see also United States v. Bauer, 129 F.3d 962,
964 (7th Cir. 1997) (holding that under the plain
error standard, this court will only reverse a
district court if the error at issue is "palpably
wrong" and likely would have resulted in a
different sentence) (internal quotations
omitted).
We agree with the assessment of the parties.
Misprision of felony is punishable by a term of
imprisonment not to exceed three years. See 18
U.S.C. sec. 4. A person found guilty of an
offense punishable by a term of imprisonment of
not more than three years is guilty of a Class E
felony. See 18 U.S.C. sec. 3581(b)(5). The term
of supervised release for a Class E felony is not
more than one year. See 18 U.S.C. sec.
3583(b)(3). Accordingly, we must vacate the
sentence imposed by the district court and remand
the case to the district court with the direction
that it impose a sentence of supervised release
that does not exceed the statutory maximum of one
year. See 18 U.S.C. sec. 3583(b)(3).
At oral argument, counsel represented to the
court that Mr. Shabazz soon will have fulfilled
the maximum period of supervised release
allowable under the statute. We therefore trust
that the district court will attend to this
matter as soon as its other obligations permit
and make the adjustment required by this opinion.
Conclusion
The sentence imposed by the district court is
vacated, and the case is remanded. The district
court is directed to correct the sentence of

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supervised release so that it does not exceed the
statutory maximum of one year. The mandate of
this court shall issue immediately.
IT IS SO ORDERED
/* This opinion was released initially in typescript
form.

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