United States of America v. Gregory Hayes

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2016 *
Decided December 22, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 16‐1803
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GREGORY HAYES,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 95‐CR‐135
Rudolph T. Randa,
Judge.
O R D E R
With about 3 years left on his 26‐year federal prison sentence, Gregory Hayes
asked the district court to modify the conditions of his impending supervised‐release
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 16‐1803 Page 2
term. The court treated his request as a motion under 18 U.S.C. § 3583(e)(2),1 denied it
as premature, and invited him to refile three months before his release date. We affirm.
In his motion Hayes argued that the sentencing judge (1) failed to justify the
conditions using the factors in 18 U.S.C. § 3553(a), and (2) imposed “many” conditions
that were vague or overbroad. He pointed to only one as vague—the condition that
barred him from associating or communicating with any member, associate member, or
prospective member of a gang. The district court denied the motion without prejudice.
Hayes’s failure‐to‐justify argument, the court concluded, was not authorized by
§ 3583(e)(2) because it was a late challenge based on an asserted procedural error from
the time of sentencing. As for his vagueness argument, the district court acknowledged
that the term “associating” needed clarification after United States v. Kappes, 782 F.3d 828
(7th Cir. 2015), but pointed out that Hayes still faced three years in prison and didn’t
specify the other conditions that he challenged. The court invited him to refile the
motion three months before his release date.
On appeal Hayes contends that a full resentencing is necessary because several of
his conditions are overly vague. But correcting vague conditions under § 3583(e)(2)
would require only remand for clarification. See United States v. Bickart, 825 F.3d 832,
842 (7th Cir. 2016); United States v. Purham, 795 F.3d 761, 768 (7th Cir. 2015).
He also contends that refusing to “correct” the conditions upon his motion was
error because § 3583(e)(2) allows district judges to modify conditions of release at any
time. We disagree. Although judges have authority to adjust supervised‐release
conditions at any time, this does not mean that a judge must revise them whenever
prisoners ask. United States v. Williams, 840 F.3d 865, 865 (7th Cir. 2016) (upholding
determination that modification request 14 years before release was premature).
Governing law and circumstances sometimes change during incarceration, so judges
may require prisoners to make challenges all at once “in the year or so before
release.” See id.; United States v. Myers, 426 F.3d 117, 129–30 (2d Cir. 2005); see also
United States v. Siegel, 753 F.3d 705, 717 (7th Cir. 2014) (noting that “best practices”
1 Section 3583(e)(2) provides that courts may, after considering certain factors in
18 U.S.C. § 3553(a), “modify, reduce, or enlarge the conditions of supervised release, at
any time prior to the expiration or termination of the term of supervised release,
pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the
modification of probation and the provisions applicable to the initial setting of the terms
and conditions of post‐release supervision.”

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No. 16‐1803 Page 3
commend considering modifications on the “eve” of release). In this case Hayes
explained some but not all of his substantive challenges and still had three years to
serve in prison. The district court acted within its discretion by denying his request and
allowing him to refile a single motion to be resolved before his release. And to the
extent that Hayes now challenges other conditions on vagueness grounds, those
arguments are similarly premature.
AFFIRMED.

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