                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3588
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

David Allen (Allan) Bell, also known as David Allen Bell, also known as Donte Borae

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 15, 2018
                             Filed: February 12, 2019
                                  ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

      David Bell appeals the district court’s imposition of special conditions of
supervised release prohibiting the consumption of alcohol and setting a curfew. We
reverse and vacate those conditions.
       Under a binding plea agreement, Bell pleaded guilty to conspiracy to distribute
marijuana and conspiracy to commit money laundering. The plea agreement included
a waiver of appellate and post-conviction rights. As relevant here, Bell “expressly
waive[d] the right to appeal any sentence, directly or collaterally, on any ground
except . . . (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) an
illegal sentence, or; (4) that the Court imposed a sentence other than the one set out
in this binding plea agreement.” The plea agreement defined an illegal sentence as
“a sentence imposed in excess of the statutory maximum or different from that set out
in this binding plea agreement” but “not a misapplication of the Sentencing
Guidelines or an abuse of discretion.” The plea agreement provided for a sentence
of 15 months’ imprisonment and 3 years’ supervised release.

       A presentence investigation report was also prepared. It stated that Bell
“consumes alcohol occasionally, primarily on weekends.” It also noted that Bell first
used marijuana in high school and eventually began using it “regularly.” Neither Bell
nor the Government objected to the facts contained in the presentence investigation
report.

       After the district court confirmed that the plea agreement and appellate waiver
were knowing and voluntary, Bell was sentenced to 15 months’ imprisonment and 3
years’ supervised release. The district court also imposed special conditions of
supervised release that were not described in the plea agreement. Special Condition
No. 4 requires that Bell “not consume or possess alcoholic beverages or beer,
including 3.2 percent beer, at any time, and [that he] shall not be present in any
establishment where alcoholic beverages are the primary items for sale.” Special
Condition No. 5 requires Bell to be at his “place of residence between the hours of
10:00 p.m. and 6:00 a.m., 7 days per week,” unless his work schedule requires
otherwise.




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       According to the court, the alcohol ban was necessary because “I’ve had too
many defendants that go out and get to drinking, then they get intoxicated and then
they go out and violate their supervised release.” The court pointed to similar
justifications in imposing the curfew:

      And the same reason I put that curfew on there. . . . [T]hey violate their
      probation, they’re out usually past midnight. They’re out on the prowl, and
      they get into trouble. They get drinking, then they’re out prowling the streets.
      Now, there’s no indication you do that. But I’m going to leave it on there
      because I’m not even going to give you the chance to be tempted by it.

Bell timely appealed the imposition of these conditions.

       We must first consider whether the appellate waiver prevents Bell from
challenging the two special conditions of supervised release.1 We review the validity
of an appellate waiver de novo. United States v. Seizys, 864 F.3d 930, 931 (8th Cir.
2017). Ordinarily, plea agreements “will be strictly construed and any ambiguities
in these agreements will be read against the Government and in favor of a defendant’s
appellate rights.” United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc).
“[T]he burden of proof is on the Government to demonstrate that a plea agreement
clearly and unambiguously waives a defendant’s right to appeal.” Id. But Bell’s plea
agreement proposed a different standard. It provided that “in interpreting this
agreement, any drafting errors or ambiguities are not to be automatically construed
against either party, whether or not that party was involved in drafting or modifying
this agreement.” We need not decide whether the parties can contract around our case
law construing ambiguities against the Government. Giving the words their “normal


      1
       In a separate pro se brief, Bell also invokes ineffective assistance of counsel
and challenges subject-matter jurisdiction and venue. We decline to address the
ineffective assistance of counsel claim on direct appeal. See United States v. Cooke,
853 F.3d 464, 475 (8th Cir. 2017). And as Bell’s counsel acknowledged, the other
claims are without merit.

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and ordinary meanings,” as the plea agreement itself demands, we conclude that the
waiver does not prevent Bell from challenging the special conditions of supervised
release.

        The plea agreement expressly stated that Bell may appeal a sentence “other
than the one set out in this binding plea agreement.” While the plea agreement
provided for a sentence of 15 months’ imprisonment and 3 years’ supervised release,
it did not describe any special conditions of supervised release. According to Andis,
special conditions of supervised release are part of a sentence. 333 F.3d at 892 n.7;
see also 18 U.S.C. § 3583(a) (stating that courts may include a term of supervised
release “as a part of the sentence”). We therefore find that Bell is appealing a
sentence other than the one provided for in the plea agreement. In response, the
Government points to the additional language stating that Bell cannot appeal “a
misapplication of the Sentencing Guidelines or an abuse of discretion.” Because we
ordinarily review a sentencing court’s imposition of conditions of supervised release
for an abuse of discretion, the Government contends that the waiver blocks Bell’s
appeal here. But this language defines an illegal sentence, the third category of
exceptions to the appellate waiver. The definition does not purport to limit the fourth
category: “that the Court imposed a sentence other than the one set out in this
binding plea agreement.” The special conditions are part of Bell’s sentence but were
not set out in the plea agreement. They therefore meet the “other than” exception and
do not fall within the scope of the waiver.

      Because Bell objected at sentencing to Special Condition No. 4 imposing an
alcohol ban, we review its imposition for abuse of discretion. See United States v.
Forde, 664 F.3d 1219, 1222 (8th Cir. 2012). While the district court’s discretion is
broad, it is not absolute. Id. The conditions must 1) be “reasonably related to the
sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involve[] no greater
deprivation of liberty than is reasonably necessary for the purposes set forth in
§ 3553(a); and 3) [be] consistent with any pertinent policy statements issued by the

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Sentencing Commission.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.
2011). Moreover, the sentencing court “must make an individualized inquiry into the
facts and circumstances underlying a case and make sufficient findings on the record
so as to ensure that the special condition satisfies the statutory requirements.” Id.
(internal quotation marks omitted). The court “may not impose a special condition
on all those found guilty of a particular offense.” Id. But a special condition need not
be vacated if its basis can be discerned from the record, even in the absence of
individualized findings. United States v. Deatherage, 682 F.3d 755, 758 (8th Cir.
2012).

       “We have repeatedly affirmed total bans on alcohol consumption when either
the defendant’s history and characteristics or the crime of conviction supported the
restriction.” United States v. Robertson, 709 F.3d 741, 748 (8th Cir. 2013). We have
also held that a history of drug abuse can support a condition prohibiting the
consumption of alcohol because it is “within the district court’s discretion to
recognize the threat of cross addiction and respond by imposing the ban on alcohol
use.” See Forde, 664 F.3d at 1224; see also U.S.S.G. § 5D1.3(d)(4) (recommending
such conditions for defendants who abuse drugs or alcohol). But we have vacated
complete bans on alcohol “where the defendant’s history or crime of conviction” did
not support them. United States v. Walters, 643 F.3d 1077, 1080 (8th Cir. 2011). In
particular, we have refused to treat the distribution of drugs as a crime of conviction
that in itself justifies banning alcohol. See Forde, 664 F.3d at 1222-23. Likewise,
we have held that the threat of cross addiction justifies a total prohibition on alcohol
only where the defendant is truly drug dependent, and we have explained that even
repeated marijuana use and light alcohol consumption are not necessarily sufficient
to establish dependency, which exists when “a person is psychologically or
physiologically reliant on a substance.” United States v. Woodall, 782 F.3d 383, 387
(8th Cir. 2015) (per curiam).




                                          -5-
       Applying these principles here, we conclude that the sentencing court abused
its discretion in imposing the condition prohibiting Bell from any consumption of
alcohol and from frequenting establishments where it is the primary item for sale.
Rather than conducting an individualized inquiry into the circumstances of Bell’s
alcohol use and drug dependence, the district court cited its general experience with
prior offenders. In fact, the court admitted that “there’s no indication you do that
[drinking and prowling the streets].” Moreover, the court made no finding that Bell
is drug dependent and susceptible to cross addiction to alcohol. See Walters, 643
F.3d at 1080. While the presentence investigation report did indicate that he used
marijuana “regularly,” it did not specify how frequently he used it. We have held that
consumption of one or two beers each month and use of marijuana once every other
month did not amount to drug dependence, and the record does not show that Bell’s
regular use of marijuana and occasional consumption of alcohol resulted in
dependence. See Woodall, 782 F.3d at 387. And while officers found hundreds of
marijuana plants in the basement of the residence where Bell was arrested, this
evidence could relate primarily to his effort to make money by distributing marijuana
and was not used to make any findings concerning his own addiction. See Forde, 664
F.3d at 1222-23 (explaining that a conviction for distributing drugs does not
necessarily justify an alcohol ban). Given the sentencing court’s lack of findings
particular to Bell and its express reliance on the general characteristics of other
offenders, we vacate the special condition prohibiting him from consuming any
alcohol or visiting establishments where it is served.

      We conclude that the sentencing court also abused its discretion in imposing
the curfew. Rather than making individualized findings, the court referenced its
general experience with offenders and admitted that there was “no indication” this
experience pertained to Bell. See Wiedower, 634 F.3d at 493 (requiring
individualized findings). We also do not see a reasonable probability that the court
would have imposed the condition after an individualized assessment. See U.S.S.G.
§ 5D1.3(e)(5) (suggesting that a “curfew may be imposed if the court concludes that

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restricting the defendant to his place of residence during evening and nighttime hours
is necessary to protect the public from crimes that the defendant might commit during
those hours, or to assist in the rehabilitation of the defendant”). The presentence
investigation report did indicate that Bell met a coconspirator at a nightclub, but it
otherwise is unclear how the curfew is reasonably related to the protection of the
public or Bell’s criminal history and rehabilitative and correctional needs given that
the conspiracy involved distributing marijuana through the mail and laundering the
proceeds. Bell’s case bears little resemblance to those in which we have upheld
curfews. See, e.g., United States v. Asalati, 615 F.3d 1001, 1008 (8th Cir. 2010)
(upholding a curfew condition for a defendant who “demonstrate[d] a continued and
escalating inability to operate within the confines of the law” and committed several
crimes while on supervised release); United States v. Mack, 455 F. App’x 714, 716
(8th Cir. 2012) (per curiam) (upholding a curfew for a defendant who repeatedly had
been arrested for driving under the influence after midnight).

       For the foregoing reasons, we vacate Special Condition No. 4, which prohibits
Bell from consuming alcohol or frequenting establishments where alcoholic
beverages are the primary items for sale, and Special Condition No. 5, which imposes
a curfew upon Bell.
                       ______________________________




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