                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 11a0557n.06

                                            No. 11-3314

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                            FILED
UNITED STATES OF AMERICA,                                                              Aug 09, 2011
          Plaintiff-Appellee,                                                   LEONARD GREEN, Clerk

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
MICHAEL G. JACKSON,                                         COURT FOR THE NORTHERN
                                                            DISTRICT OF OHIO
          Defendant-Appellant.


                                                       /

Before:          MARTIN, CLAY, and WHITE, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Michael G. Jackson appeals the judgment of the

district court sentencing him to five years imprisonment for violating the conditions of his supervised

release. Because the district court imposed an improper conditional sentence, we VACATE the

sentence and REMAND for de novo resentencing.

                                                  I.

          In 1992, Jackson pled guilty to one count of unlawful receipt of a firearm by a convicted

felon. The district court sentenced Jackson under the Armed Career Criminal provision to fifteen

years incarceration, followed by four years of supervised release. This court affirmed. United States

v. Jackson, 995 F.2d 1068 (6th Cir. 1993) (unpublished table decision). In July 2008, while still on

supervised release, Jackson was arrested in Lorain, Ohio, and charged in the Lorain County Court
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Page 2

of Common Pleas with drug trafficking, possession of drugs, and possession of criminal tools and

drug paraphernalia. Jackson agreed to act as a confidential informant and assist the Lorain police.

       As a result of these state proceedings, Jackson was charged with two violations of his

supervised release: (1) a “Law Violation” for the commission of another crime while on release; and

(2) violation of a specific term of his supervised release that prohibited acting as an informer or

special agent for a law enforcement agency. Jackson admitted the violations and the district court

stated that it was going to revoke Jackson’s supervised release and impose a five-year sentence. But,

the court also stated that it would hold the sentence in abeyance for six months after which it would

consider vacating the sentence. The court also modified Jackson’s supervised release to require

home confinement during the six-month abeyance. Specifically, the court stated:

       All right. I am going to impose the maximum 60 months, hold it over Mr. Jackson’s
       head. And if you do anything, Mr. Jackson, between now and six months from now,
       we will set another date, you are going right to prison. There will be no more mercy
       from this court.

       ...

       Now, if you stay clean, if you are a law-abiding citizen over this period, I will
       consider vacating that sentence. We may have to amend his supervised release to
       include a period of — in fact, I am going to do it now, even during the pendency. It
       reads kind of funny. But I am going to require that he remain at home. So I am
       going to order home confinement as an additional condition. We’ll make it a
       condition of supervised release.

The court’s written order imposing the judgment reads:

       Based on this Court’s review of all relevant factors, the Court hereby orders the
       defendant’s supervised release is REVOKED, and the defendant is committed to the
       custody of the Bureau of Prisons for a term of sixty (60) months. The sentence shall
       be held in abeyance until April 6, 2011, at 10:30 a.m., when the Court will determine
       whether or not to implement the sentence imposed. Additionally, the defendant’s
No. 11-3314
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Page 3

       supervised release is hereby modified to include as a condition home confinement
       with GPS monitoring for a period of six months while the sentence is held in
       abeyance.

       The district judge who imposed this sentence retired, and Jackson’s case was re-assigned to

a second judge, who reviewed the matter at the request of the probation department. Finding no

authority for such a conditional sentence, the second judge ultimately concluded that he had no

choice but to immediately impose the five-year sentence that had been imposed, and ordered Jackson

to surrender as directed by the Bureau of Prisons. Jackson sought a writ of prohibition from this

court and filed a motion requesting that he remain on release pending appeal. A panel of this Court

denied the writ of prohibition and granted Jackson’s motion to remain on release.

                                                 II.

       The parties agree that the second district judge had considerably limited authority and was

bound to follow the initial sentencing order. District courts may modify sentences only as authorized

by statute. See United States v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010); accord 18 U.S.C. §

3582(c) (2006). The first district court imposed a sentence on Jackson and neither party identifies

any authority that would allow the second district judge to modify that sentence. However, while

this principle is clear, the procedural infirmities and ambiguous explanation of Jackson’s initial

sentence make it decidedly unclear what that sentence was.

       Jackson argues that he received a conditional sentence. According to Jackson, the district

court placed him on house arrest until April 6, 2011. And, if he did not commit any infractions

before the end of his house arrest, he would not go to jail. The United States argues that Jackson did

not receive a conditional sentence because the written order memorializing the oral sentence failed
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Page 4

to explicitly include the condition. The second district judge considered the contradictory and

uncertain language in the oral pronouncement and written order imposing the initial sentence, agreed

that it was not a proper conditional sentence, and imposed a five-year sentence consistent with his

interpretation of the first district judge’s sentence.

        In several recent unpublished opinions this Court has questioned the validity of conditional

sentences. See, e.g., United States v. Leon, No. 08-3422, 2011 WL 1754074, at *1 (6th Cir. May 10,

2011); United States v. Garcia, 312 F. App’x 801, 807 (6th Cir. 2009) (per curiam). “But ‘to the

extent conditional sentencing [is] acceptable,’ the sentence must be precise and unequivocal.” Leon,

2011 WL 1754074, at *1 (quoting United States v. Martin, 913 F.2d 1172, 1176 (6th Cir. 1990)).

Here, Jackson’s final sentence remained bound up in the district court’s discretion. While it is

possible to infer from the sentencing colloquy and order that the district court would not impose any

jail time if Jackson did not commit any additional crimes in the six-month period following the

sentencing hearing, the sentence did not precisely and unequivocally establish this. The district court

stated merely that it would “consider vacating the sentence” and would “determine whether or not

to implement the sentence.” Therefore, Jackson’s sentence fails the requirement that conditional

sentences be precise and unequivocal. Because Jackson’s sentence is not a proper conditional

sentence, we vacate and remand for resentencing de novo.

                                                  III.

        The United States agrees with Jackson that the district court improperly calculated his

advisory guideline range. Additionally, Jackson asserts that he should be given credit for the period

of home confinement that he served. The district court should address these issues at resentencing.
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Page 5



                                               IV.

       Because the district court’s initial sentence failed to satisfy the requirements of a valid

conditional sentence, we VACATE both the initial sentence and the subsequent order putting the

sentence into effect, and REMAND for de novo resentencing.
