United States of America v. Ernest Russell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1817
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ERNEST R USSELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-680-2 — Edmond E. Chang, Judge.
____________________
A RGUED F EBRUARY 14, 2023 — DECIDED A UGUST 31, 2023
____________________
Before R OVNER , K IRSCH , and JACKSON -A KIWUMI , Circuit
Judges.
K IRSCH , Circuit Judge. A jury found Ernest Russell guilty of
distributing heroin and fentanyl in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced Russell to a below-
Guidelines sentence of 96 months’ imprisonment, followed by
three years of supervised release. On appeal, Russell
challenges one special condition of his supervised release:
that he undergo a sex-offender evaluation to determine

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whether sex-offender treatment is necessary. In imposing the
condition, the district court relied on facts from a police
report, summarized in the Presentence Investigation Report.
The PSR reported that Russell had been convicted of an
offense that involved the sexual assault of a minor. Because
the district court did not abuse its discretion in imposing the
sex-offender assessment as a condition of supervised release,
we affirm.
I
In 2010, Ernest Russell was convicted of misdemeanor
domestic battery. According to the arrest report, Russell’s
girlfriend (now wife) and her 11-year-old daughter told police
officers that Russell had inappropriately touched the child
while her mother was at work. The victim told the officers that
she was in her bed when Russell entered her room, laid in bed
with her, and began to rub his pelvic region. The victim added
that when she tried to get away from Russell, he turned her
on her stomach, got on top of her, and rubbed his pelvic
region against her body. The victim screamed for help, at
which time Russell stopped and asked her not to tell her
mother. But the victim called her mother at work and told her
that Russell had inappropriately touched her. At sentencing,
Russell offered, at most, a bare denial of this information and
furnished no evidence to call the PSR into question.
In fact, during Russell’s allocution at sentencing, he called
his 2010 conviction a “sexual assault case,” but stressed that it
was only a misdemeanor, not a felony. Russell said the offense
was “some he said/she said stuff,” and that although “the little
girl” involved in the incident was his stepdaughter and it
caused problems in his marriage, he and his wife “never
divorced because of that situation” and had “moved on.” He

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No. 22-1817 3
and his wife “actually removed” the girl “from the home, and
she stayed with her sister for a while” before they “brought
her back up into [their] home.” Russell said there were “a lot
of things going on in that situation.” Although Russell did not
offer any evidence to refute the facts recounted in the police
report and, in turn, the PSR, he maintained that he was not a
sex offender and expressed concern that imposing the
assessment condition could cause problems for him in prison.
The district court found that the 2010 conviction gave rise
to the concern that Russell had committed sexual assault. The
court inferred that, despite being a misdemeanor resulting in
a relatively short sentence, the case may have been pleaded
down to a lesser offense due to the victim’s young age. The
district court also found that the facts in the PSR were quite
detailed for the type of offense and age of the victim.
After finding the information from the PSR credible, the
district court ordered Russell to participate in a sex-offender
assessment as a condition of his supervised release. If the
assessment provider were to deem treatment necessary, the
government or the probation officer could seek an order from
the court requiring Russell to comply with the recommended
treatment. The court explained that if treatment were
recommended following the assessment, maybe Russell
would agree to it, but if Russell objected, the court would then
decide if treatment was necessary. Russell’s counsel objected
to the imposition of the condition but did not articulate
reasons for doing so. Russell now appeals.
II
At the outset, we can quickly dispense with Russell’s
argument that the district court delegated Article III

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sentencing authority to a treatment provider. The condition
does not delegate judicial authority to anyone and vests final
decision making with the judge alone. Even if the provider
deemed treatment necessary after an assessment, the district
court retained exclusive control over whether treatment
would be ordered.
Moving to the merits, Russell frames his challenge to the
special condition as one of procedural error, seeking de novo
review. But Russell does not identify a procedural error or
develop any argument to that effect. Thus, because Russell
objected below and centers his appeal on the reasonableness
of the court’s decision, we review the imposition of the special
condition for an abuse of discretion. See United States v.
Douglas, 806 F.3d 979, 983 (7th Cir. 2015) (“The sentencing
judge is in a superior position to find facts and judge their
import under [18 U.S.C.] § 3553(a) in the individual case and
district courts have an institutional advantage over appellate
courts in making these sorts of determinations.”) (cleaned
up).
Special conditions of supervised release must be based on
accurate information and reasonably relate to factors
identified in 18 U.S.C. § 3553(a). That is, conditions must
account for the history and characteristics of the defendant;
involve no greater deprivation of liberty than is reasonably
necessary to achieve deterrence, incapacitation, and
rehabilitation; and be consistent with the Sentencing
Commission’s policy statements. United States v. Kappes, 782
F.3d 828, 845 (7th Cir. 2015) (collecting cases). All of these
requirements were met here.
First, the district court did not abuse its discretion in
considering the information contained in the 2010 police

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No. 22-1817 5
report when evaluating Russell’s history and characteristics
before concluding that the condition was necessary. True, we
“cannot simply assume that any police report … is reliable
without more information or corroborating evidence.” United
States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014). But here,
Russell’s allocution supports a finding that the police report
was credible. Not only did Russell offer nothing to undermine
the reliability of the report, his allocution suggested that the
conviction was about the sexual assault of his stepdaughter
and characterized the incident as a “sexual assault case.”
Although Russell characterized the situation as a “he said/she
said” situation, he offered no details or evidence to suggest
that the “he said” portion undercut the police report.
Second, the condition was narrowly tailored: the district
court ordered an assessment (not treatment) to evaluate
whether Russell might benefit from treatment. There is no
record that Russell had received an assessment or treatment
in the past. And a condition imposing a sex-offender
assessment does not require the defendant to be a convicted
sex offender. See United States v. Ross, 475 F.3d 871, 872, 875
(7th Cir. 2007) (concluding it was not plain error to impose a
sex-offender assessment condition and possible treatment
even when the defendant was not a convicted sex offender but
had a history of sexual misconduct). The modest special
condition did not deprive Russell of more liberty than
reasonably necessary.
Third, the condition requiring a sex-offender assessment
promoted the Sentencing Commission’s policy goals of
deterrence, rehabilitation, and protecting the public. The
district court proceeded carefully by only imposing a sex-
offender condition and not considering whether treatment

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was warranted unless and until the assessment recommended
treatment. Russell argues that his conviction was too old to
support any present need to rehabilitate him or protect the
public, relying on our decision in United States v. Johnson, 756
F.3d 532, 538–42 (7th Cir. 2014). But Johnson is inapposite, and
Russell misses the point. At sentencing for Johnson’s drug
crime, the district judge, without explanation, imposed a sex-
offender treatment (not assessment) condition based on a 15-
year-old conviction for sexual misconduct. Id. at 540. We
reversed, reasoning that sex-offender treatment did not
provide just punishment for the drug offense at issue, deter
criminal conduct, rehabilitate the defendant, or protect the
public. Id. at 541–42. Russell may be right that sex-offender
treatment is unnecessary to deter or rehabilitate him or to
protect the public. But that is not what the district court
ordered. Instead, the court carefully considered the facts of
Russell’s past conviction and imposed a much more modest
condition—an assessment—that may never result in sex-
offender treatment. If it does, it will become mandatory only
after the district court agrees with the recommendation and
has considered and overruled any objection Russell might
raise. See Douglas, 806 F.3d at 983–84 (distinguishing Johnson
from an instance where the district court explained its reasons
and ordered only an assessment, not treatment).
Given the reliable information in the PSR that Russell had
sexually assaulted a minor, and the lack of any record that
Russell had received an assessment or treatment in the past,
the district court did not abuse its discretion by imposing the
modest assessment condition here.
A FFIRMED

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