United States v. Michael Dunn

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 1, 2025
• Docket: 23-14164
• Status: Unpublished

Opinion

USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-14164 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL RISHARD DUNN, a.k.a. Fat Mike,

Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:23-cr-00166-AMM-SGC-1 ____________________ USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 2 of 6

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Before JORDAN, LUCK, and WILSON, Circuit Judges. PER CURIAM: After being sentenced to seventy-eight months’ imprison- ment and three years’ supervised release, Defendant-Appellant Mi- chael Dunn appeals, arguing that the district court plainly erred by failing to fully enumerate at sentencing each discretionary condi- tion that applied to his term of supervised release. After careful re- view, we affirm. I. Dunn pled guilty to conspiracy to commit wire fraud, in vi- olation of 18 U.S.C. §§ 1343, 1349, and conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 371, 1343. At sentencing the district court orally informed Dunn: On release of imprisonment, you will be placed on supervised release for a term of three years. While on supervised release, you will have to comply with a number of conditions. Some are standard in this court, and some will be special to your situation. I en- courage you to read those really closely and discuss any questions you have with your attorney or the pro- bation officer to minimize the chance that you inad- vertently violate one of these rules. In summary, the special conditions are, one, you must cooperate in the collection of DNA under the administrative supervi- sion of the probation officer. Two, you can’t use or possess narcotics or controlled substances unless USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 3 of 6

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there’s one prescribed to you by a medical practi- tioner, and then you have to follow the rules on the prescription. Three, you can’t go to or stay at places where you know that controlled substances will be il- legally sold or used or administered. Fourth, is a sub- stance abuse intervention program. Fifth, is a restitu- tion condition. Sixth, is related to restitution, but you can’t incur any new debts, other than normal debts for existing utilities or rental expenses or mortgage payments. You can’t increase existing credit lines or open any new lines of credit without the prior permis- sion of the probation officer. And seventh is to assist us in tracking your restitution obligation, you have got to maintain a single checking or savings account in your name where everything that you receive goes into and everything that you pay in terms of personal expenses goes out of so that probation can determine how you are fulfilling your restitution obligations.

The court then asked if the parties had any objections, and Dunn only objected to an unrelated sentencing enhancement. The written judgment listed the same seven special conditions the judge described at the sentencing hearing and the nineteen stand- ard conditions for the Northern District of Alabama. II. If the defendant lacked an opportunity to object at sentenc- ing to the conditions of supervised release because the conditions were included for the first time in the written judgment, we review his legal argument de novo. United States v. Rodriguez, 75 F.4th USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 4 of 6

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1231, 1246 n.5 (11th Cir. 2023). But if the defendant had sufficient notice that there were discretionary conditions attached to his su- pervised release and failed to object, we review for plain error. United States v. Hayden, 119 F.4th 832, 838 (11th Cir. 2024). A court sentencing a defendant to a term of supervised re- lease must impose several mandatory conditions and may order further conditions at its discretion. See 18 U.S.C. § 3583(d). The Sen- tencing Guidelines provide thirteen standard conditions that are generally recommended, as well as several special conditions. U.S.S.G. § 5D1.3(b)-(d). “A district court may impose any condition of supervised release it deems appropriate so long as it comports with the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Tome, 611 F.3d 1371, 1375 (11th Cir. 2010). “To satisfy due process, the district court must pronounce the sentence so that the defend- ant has notice of the sentence and an opportunity to object.” Hay- den, 119 F.4th at 838 (internal quotation marks omitted). Failing to pronounce discretionary conditions of supervised release violates due process, but a failure to pronounce mandatory conditions or- dinarily does not. Id. In Rodriguez, we held that a district court violated the de- fendant’s right to due process by failing to orally pronounce discre- tionary conditions of supervised release at sentencing that were in- cluded in a later written judgment. 75 F.4th at 1247–49. Discretion- ary conditions include any condition other than the mandatory conditions listed in § 3583(d). Id. at 1247. We held that the “mere existence” of a standing order recommending those conditions of USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 5 of 6

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supervised release did not satisfy due process when the district court failed to reference that order or otherwise indicate that it was adopting conditions of supervised release beyond those mandated by statute. Id. at 1249. We noted that district courts can satisfy due process by referencing a written list of supervised release condi- tions because, by doing so, a defendant who is unfamiliar with those conditions will have the opportunity to inquire about and challenge them. Id. at 1248–49 & n.7. In Hayden, which was published after briefing in this appeal was finished, we concluded that the district court did not err under Rodriguez when the court stated that the defendant would have to comply with “the mandatory and standard conditions adopted by the Court in the Middle District” while on supervised release in its oral pronouncement and then described those conditions in detail in the written judgment. Hayden, 119 F.4th at 835–36. First, plain error review applied because, unlike in Rodriguez, the defendant had notice at sentencing that there were standard conditions at- tached to his supervised release but failed to object to the district court’s failure to describe each of the standard conditions. Id. at 838. We found that the district court “did not err—much less plainly err—” because the district court orally referenced the dis- cretionary standard conditions of supervised release for the Middle District of Florida, and the oral pronouncement and written judg- ment did not conflict, as the conditions were listed in the publicly available judgment form and tracked the standard conditions of su- pervised release in the relevant guideline. Id. at 838-39. We USCA11 Case: 23-14164 Document: 30-1 Date Filed: 04/01/2025 Page: 6 of 6

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concluded that “the written judgment specifies what the oral pro- nouncement had already declared.” Id. at 839. III. Here, the district court did not plainly err, as it indirectly ref- erenced the Northern District of Alabama’s general order regard- ing standard conditions of supervised release at sentencing when it said “you will have to comply with a number of conditions. Some are standard in this court, and some will be special to your situa- tion,” and the standard conditions in the written judgment matched those listed in the general order. See Rodriguez, 75 F.4th at 1248–49 & n.7; Hayden, 119 F.4th at 835–36, 838–39. Dunn was therefore put on notice during the oral pronouncement that the court was imposing discretionary conditions on his supervised re- lease. The district court also did not plainly err in pronouncing the special conditions of supervised release because the court explicitly stated the special conditions at sentencing and the special condi- tions in the written judgment matched those stated at sentencing. See Rodriguez, 75 F.4th at 1247–49; Hayden, 119 F.4th at 838–39. Dunn’s due process rights were not violated. AFFIRMED.