United States of America v. Robert S. Anderson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 6, 2024
Decided August 19, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2657
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT S. ANDERSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 2:20-CR-20022-001
Michael M. Mihm,
Judge.
O R D E R
Robert Anderson, who was convicted under 18 U.S.C. § 2422(b) of attempted
enticement of a minor, appeals his sentence. He seeks to strike a condition of supervised
release that prohibits him from having contact with any sex offender. He argues that
this condition (“Condition 15”) is unconstitutionally vague and overbroad, and results
in a duplicative, and therefore unnecessary, restraint on his liberty. He further contends
that the court imposed the conditions of supervised release without a proper discussion
of the sentencing factors under 18 U.S.C. § 3553(a). We vacate and remand to the district
court with instructions to modify Condition 15.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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Background
In 2020, Anderson was charged with attempted enticement of a minor after he
drove to a gas station to pick up a 15-year-old girl, intending to return to her home and
engage in sexual activity. In fact, FBI agents had posed as the young girl online; they
met Anderson at the gas station to arrest him. Anderson pleaded not guilty and
proceeded to a jury trial. The jury found him guilty, but we later reversed his conviction
and ordered a new trial because the district court had erroneously prohibited Anderson
from presenting an entrapment defense. See United States v. Anderson, 55 F.4th 545, 560
(7th Cir. 2022). After a new trial in May 2023, the jury again found him guilty.
In anticipation of Anderson’s sentencing, the probation officer prepared a
presentence investigation report (PSR) and included as a proposed discretionary
condition of supervised release that Anderson participate in a sex offender treatment
program (“Condition 6”). Because that program would prohibit Anderson from having
contact with any sex offender outside of treatment, the probation officer concluded
there was no need for a separate condition barring contact with other sex offenders. In
the addendum to the PSR, the officer further explained that the Central District of
Illinois typically does not recommend a condition prohibiting contact with certain
persons unless “unique circumstances” require it (such as prior criminal activity with
convicted felons), and here there was nothing to suggest that unique circumstances
existed.
The government objected to the omission of a no-contact condition. It argued
that including the prohibition as a condition of supervised release would make
enforcement more efficient because, if Anderson had contact with a sex offender, the
probation officer could seek revocation directly instead of waiting until Anderson was
discharged from sex-offender treatment for breaking the rules (and thus violating the
condition requiring treatment).
At the sentencing hearing, the district court heard arguments from both parties
and agreed with the government. As its rationale, the court stated that adding
Condition 15 was “important,” that no harm stemmed from its inclusion, and that the
condition was needed if the period of supervision extended beyond the period of
treatment. The court then sentenced Anderson to 120 months in prison and 5 years of
supervised release.

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Analysis
On appeal, Anderson challenges the inclusion of Condition 15 on constitutional
and procedural grounds.
A. Constitutional Arguments
Anderson asserts that Condition 15 is unconstitutionally vague and overbroad
for two reasons: The condition lacks an explicit scienter requirement, and it does not
define “contact.” We review the constitutionality of a condition of supervised release de
novo. See United States v. Shannon, 851 F.3d 740, 743 (7th Cir. 2017).
The government concedes that the lack of a scienter requirement renders
Condition 15 unconstitutionally overbroad, and so it admits that one should be added.
Prohibiting both knowing and unknowing contact imposes strict liability and renders
the condition overbroad. See United States v. Kappes, 782 F.3d 828, 852 (7th Cir. 2015).
And unlike conditions that prohibit contacting people of a certain age, for example,
when “sensory cues” allow a defendant to estimate age with “enough accuracy,”
see United States v. Edwards, 944 F.3d 631, 638 (7th Cir. 2019), here, there are no sensory
cues that enable Anderson to identify another person as a sex offender. Instead, the
condition should prohibit Anderson from contact with a person whom he knows or
reasonably should know is a sex offender. See, e.g., United States v. Thompson, 777 F.3d
368, 377 (7th Cir. 2015).
Second, Anderson contends that prohibiting “contact” is vague because he
cannot discern whether passing or incidental contact—such as routine transactions with
cashiers—is prohibited. The government responds that we already held in United States
v. Miller, 829 F.3d 519, 530 (7th Cir. 2016), that a condition need not define the method
or nature of prohibited “contact.” Regardless, it continues, adding a scienter
requirement will eliminate any vagueness associated with “contact.”
The government has the better argument. Anderson’s concern with the lack of an
exception for “normal commercial business” (which could itself trigger a debate over
meaning) or some other exception for incidental contact is addressed sufficiently by
prohibiting only “knowing” contact with a sex offender. His analogy to an incidental
contact exception referenced in two cases—Thompson and Miller—is off-base, assuming
a scienter requirement is imposed. In Thompson, we warned that failing to add
exceptions to a condition prohibiting any contact with minors was “troubling.” 777 F.3d
at 376. And in a case factually similar to Thompson, we affirmed a “normal commercial

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business” exception. Miller, 829 F.3d at 529–30. But with the added scienter
requirement, Anderson would not be subject to strict liability, in contrast to the
defendants in Thomspon and Miller. Further, another exception would not serve a
meaningful purpose here; a separate scienter requirement already prevents Anderson
from unwittingly violating the condition, and a “commercial business” exception would
do nothing to narrow down “contact” because a person’s sex-offender status is not
visible or obvious.
B. Procedural Arguments
Anderson next contends that the district court failed to provide required
justifications under 18 U.S.C. § 3553(a) for imposing Condition 15. See 18 U.S.C.
§ 3583(c), (d). The government maintains that the court’s brief statement justified the
condition and that reference to the § 3553(a) factors is not required when imposing a
contested condition of supervised release. Because an adequate justification for the
sentence, including the conditions of supervised release, is required as a procedural
matter, we review de novo whether the district court sufficiently explained its decision.
See Kappes, 782 F.3d at 864.
When imposing supervised release, sentencing courts must attach the mandatory
conditions—including some that are offense-specific—that are set forth in the statute
governing supervised release, 18 U.S.C. § 3583(d), and in § 5D1.3(a) of the Sentencing
Guidelines (with exceptions). The district court may also impose discretionary, or
special, conditions. Section 5D1.3(a) and 18 U.S.C. § 3563(b) suggest several possibilities,
but a court may create “any other condition it considers to be appropriate” if it is
“reasonably related” to the statutory sentencing factors in § 3553(a)(1) and
§ 3553(a)(2)(B)–(D) (the nature and circumstances of the offense, the defendant’s history
and characteristics, the need to protect the public, and the need to provide educational
training or other correctional treatment). Discretionary conditions also must cause “no
greater deprivation of liberty than is reasonably necessary” and be consistent with
policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d); see also
United States v. Morgan, 987 F.3d 627, 633–34 (7th Cir. 2021) (citations omitted).
Accordingly, we have explained that a sentencing court must justify
discretionary conditions of supervised release “by an adequate statement of reasons,
reasonably related to the applicable § 3553(a) factors.” Kappes, 782 F.3d at 839, 845
(citing United States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014)). The court cannot merely
say that a condition is justified. See United States v. Siegel, 753 F.3d 705, 712 (7th Cir.
2014). But the court “need not address every factor in checklist fashion, explicitly

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articulating its conclusions regarding each one” or “give a speech about each
condition.” Kappes, 782 F.3d at 845–46 (citations omitted).
The district court sufficiently explained the § 3553(a) factors supporting its
decision to impose Condition 15. The court said that Condition 15 was “important,”
harmless, and prudent in case the term of supervision outlasted sex-offender treatment.
This explanation adequately addresses Condition 15’s rehabilitative purpose: In case
Anderson’s supervised release period outlasts his treatment program, the extended
prohibition on his contact with sex offenders will allow for a more effective
rehabilitative process, where Anderson will not be persuaded to reoffend. See id.
§ 3553(a); Farmer, 755 F.3d at 854–55. Indeed, the explanation for the previous iteration
of the proposed condition in this case (barring contact with other “felons”), which
appeared in the first two versions of the PSR, suggests as much:
Associating with others who are engaged in criminal activity or, in some
instances, who have been convicted of a felony, increases the defendant’s
risk of reoffending. Limiting contact with others who may place the
defendant at risk of reoffending is an important factor in reducing the
defendant’s risk of violating conditions of supervised release and
maintaining a law abiding lifestyle. The defendant’s ability to remain in
society and avoid risk for himself by limiting contact with others who
might place him at risk will be a key component in determining his
success while being supervised.
Therefore, the district court adequately justified Condition 15 with reference to the
§ 3553(a) factors.
C. Remedy
The final issue is the scope of the remedy. Neither party argues for a full
resentencing. Anderson urges that a remand is altogether unnecessary; he contends that
we can modify the judgment sua sponte, see 28 U.S.C. § 2106, and should do so by
excising Condition 15. The government asserts that we should vacate Condition 15 and
order a remand with instructions to the district court to add a scienter element.
A modification or remand limited to modifying Condition 15, and not a full
resentencing, is proper because there is no reason to think that the rest of Anderson’s
sentence would change as a result of altering one condition of his supervised release.
See United States v. Wylie, 991 F.3d 861, 865 (7th Cir. 2021). This is a risk if the court

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would have changed another part of the sentence (e.g., imposing more prison time or
longer supervised release or other more onerous conditions) had it agreed not to
impose Condition 15. See id. The record gives no hint of this implausible scenario.
Indeed, Anderson does not even consider the possibility.
We believe that the district court is in the best position to modify the judgment.
Because the district court erred when it imposed Condition 15 without a scienter
requirement, we VACATE that portion of the judgment and REMAND for proceedings
consistent with this opinion. The remand is limited to modifying Condition 15 to
include a scienter requirement.

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