(U.S.S.G. §5B) (for Revocation, see §800)
3d Circuit reverses probation condition barring entry into U.S. as unlawful “banishment.” (560) At sentencing for making false statements to the Coast Guard, defendant was sentenced to probation on condition that he not enter the U.S. The Third Circuit reversed, holding that the Immigration and Nationality Act provides the sole basis for barring a person from the U.S. and that the district court lacked authority to impose a probation condition of banishment. U.S. v. Vastardis, __ F.4th __ (3d Cir. Dec. 7, 2021) No. 20-2040.
Commission encourages alternatives to incarceration for nonviolent first offenders. (560) The Commission added a new Application Note to §5C1.1, stating that if a defendant is a “nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment.” This is consistent with a recent study by the Commission: Tracey Kyckelhahn & Trishia Cooper, U.S. Sentencing Comm’n, The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders at 6 –9 (2017). The Commission’s definition of “nonviolent first offender” avoids the “categorical approach.” See U.S. v. Starks, 861 F.3d 306, 324 (1st Cir. 2017) (describing the “immensely complicated analysis required by the categorical approach”). Proposed Amendment 7, effective Nov. 1, 2018.
10th Circuit says Assimilative Crimes Act probation and fines are based on state, rather than federal law. (190)(560)(603) Defendant assaulted his wife in Veterans Administration housing and was convicted under the federal Assimilative Crimes Act (ACA), 18 U.S.C. §13, of committing the New Mexico offense of aggravated assault on a household member. Under the ACA, a federal court is to impose a punishment “like” that available under state law. Consistent with this ACA directive, the district court imposed the statutory maximum term of probation and maximum fine available under New Mexico law, rather than the greater terms of probation and fines available under federal law. The Tenth Circuit affirmed, holding that the district court did not err in using the state, rather than federal, law to determine the maximum term of probation and fines. Like imprisonment, both probation and fines are “punishments.” U.S. v. Chapman, 839 F.3d 1232 (10th Cir. 2016).
9th Circuit upholds condition of probation barring California marijuana use. (560) Defendant was convicted in California of maintaining a drug-involved premises, in violation of 21 U.S.C. §856(a)(1). At sentencing, as a condition of probation, the district court required defendant to refrain from unlawful use of a controlled substance. After defendant had served a year of probation, Congress enacted a provision that barred the Department of Justice from using funds to prevent California from implementing laws regarding medical marijuana. Defendant then moved to modify his conditions of probation to allow him to use marijuana for medical purposes. The district court denied the motion. The Ninth Circuit affirmed, holding that the congressional provision had no effect on the court or Probation, which is an arm of the court. For that reason, the court of appeals found that the district court did not abuse its discretion in declining to modify the conditions of defendant’s probation. U.S. v. Nixon, __ F.3d __ (9th Cir. Oct. 17, 2016) No. 16-55097.
Commission revises and rearranges conditions of probation and supervised release. (560)(580) In an effort to make conditions of probation and supervised release easier to understand and enforce, the Commission revised, clarified, and rearranged the conditions in §§5B1.3 and 5D1. The amended conditions relate to (1) court-established payment schedules, (2) the Sex Offender Registration and Notification Act, (3) reporting to the probation officer, (4) leaving the jurisdiction, (5) answering truthfully and following instructions, (6) residence and employment, (7) visits by probation officer, (8) association with criminals, (9) arrested or questioned by a law enforcement officer, (10) firearms and dangerous weapons, (11) acting as an informant, (12) duty to notify of risks posed by the defendant, (13) support of dependents, (14) alcohol and controlled substances and frequenting places where controlled substances are sold, and (15) material change in economic circumstances. Amendment 5, effective November 1, 2016.
7th Circuit allows court to modify conditions of probation even after defendant filed notice of appeal. (560) Defendant was convicted of transferring obscene material to a person under 16 and was sentenced on August 15 to probation. On September 25, while his appeal was pending, he filed a motion asking the court to modify the conditions of probation. The court granted in part and denied in part this request in an order dated December 22. That same day, defendant filed a notice of appeal of the district court’s order modifying the probation conditions. The Seventh Circuit held that the district court had jurisdiction to enter the December 22 order modifying defendant’s conditions of probation, even though it came after defendant filed his notice of appeal of his conviction. The statute at issue, 18 U.S.C. § 3563(c), provides that “[t]he court may modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation….” In U.S. v. Ramer, 787 F.3d 837 (7th Cir. 2015), the court held that Congress’s use of “at any time” in § 3583(e)(2) meant that the district court retained jurisdiction to modify a defendant’s conditions of supervised release even while his appeal was pending. The probation statute, § 3563(c) contained the same language. U.S. v. Taylor, __ F.3d __ (7th Cir. Aug. 6, 2015) No. 14-3790.
7th Circuit rejects ban on adult pornography where no link to current offense. (560) Defendant was convicted of transferring obscene material to a person under 16, and was sentenced to three years’ probation. He challenged on appeal a special condition of probation that barred him from viewing adult pornography and from knowingly visiting any place where adult pornography was sold or available for viewing. The Seventh Circuit reversed the condition. There was no evidence that viewing or listening to adult pornography in any way led defendant to commit the crime here, or led him to commit any other crime. Although defendant created adult pornography by sending videos of himself masturbating to a person he believed was a 13-year old girl, the sexual images were not facilitated by or motivated by his access to adult pornography. The record did not justify the ban. U.S. v. Taylor, __ F.3d __ (7th Cir. Aug. 6, 2015) No. 14-3790.
7th Circuit permits probation officer to check defendant’s internet-capable devices without reasonable suspicion. (560) Defendant was convicted of transferring obscene material to a person under 16, and was sentenced to three years’ probation. As a condition of probation, prior to accessing an internet capable device, defendant was ordered to give notice to the probation department of the type and location of such device, and make the device available for inspection. Defendant argued that a probation officer should only be allowed to access his personal computer upon reasonable suspicion that he had violated a probation condition or committed a crime. The Seventh Circuit disagreed, and upheld the condition. Defendant used his computer to commit the offense. While on his computer, he accessed an online chat room and transferred obscene material to someone he thought was under the age of 16. Because of the nature of the offense, the district court did not abuse its discretion by imposing a condition that allowed the probation department to check defendant’s internet-capable devices even without reasonable suspicion. U.S. v. Taylor, __ F.3d __ (7th Cir. Aug. 6, 2015) No. 14-3790.
7th Circuit reverses bar on all direct contact with minors as overbroad. (560) Defendant was convicted of transferring obscene material to a person under 16, and was sentenced to three years’ probation. The district court ordered as a condition of probation a bar on all direct contact with minors. The Seventh Circuit agreed that some restriction on contact with minors while defendant was on probation was justified, but found the special condition imposed here to be overbroad, since it did not contain any exceptions. The condition should include exceptions for contact with non-related minors in the course of normal commercial business, in the presence of an adult approved by probation, and in other cases of unintentional or incidental contact. U.S. v. Taylor, __ F.3d __ (7th Cir. Aug. 6, 2015) No. 14-3790.
Supreme Court says exclusionary rule does not apply to parole revocation hearings. (560) The Pennsylvania Supreme Court held that the federal exclusionary rule applied to the parolee’s revocation hearing because the officers who conducted the search were aware of his parole status. In a 5-4 opinion written by Justice Thomas, the Supreme Court reversed, holding that evidence obtained in violation of the Fourth Amendment is admissible at parole revocation hearings regardless of whether the officer performing the search knows that the subject of his search is a parolee. The majority noted that previous decisions have declined to extend the exclusionary rule to proceedings other than criminal trials. See U.S. v. Calandra, 414 U.S. 338, 343-346 (1974) (grand jury proceedings); U.S. v. Janis, 428 U.S. 433, 447 (1976) (civil tax proceedings); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (civil deportation proceeding). The majority said that the court has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Justices Souter, Ginsburg, Breyer and Stevens dissented. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998).
1st Circuit approves sentence of imprisonment after government’s successful appeal of probation. (560) The government appealed several of the court’s sentencing decisions that resulted in defendant receiving a sentence of three years’ probation. At the time of appeal, defendant had served 15 months of probation, including a six-month portion in home detention. The First Circuit held that imposing a term of imprisonment after the government’s appeal from a sentence of probation did not exceed the court’s sentencing authority. The sentencing statutes explicitly provide for the appeal and modification of probation sentences that fall outside the guideline range. See 18 U.S.C. § 3563. The similarities between probation and imprisonment were sufficient to allows crediting of probation against imprisonment. The proper means for crediting probation against imprisonment is a downward departure by the court upon remand. However, “fully crediting” probation does not require a day-to-day offset against time to be served in prison, since time served in both home detention and on probation is less restrictive than imprisonment. U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit approves intermittent confinement in non-guidelines case. (560) Defendant was convicted of willfully failing to pay child support under the Child Support Recovery Act (CSRA), a Class B misdemeanor to which the guidelines do not apply. For a first time offender, the offense carries a maximum of six months imprisonment. The district court sentenced him to five years probation, on condition that he remain in custody for 12 hours per day during the first 12 months of the probationary period. The First Circuit upheld the “intermittent confinement.” Under 18 U.S.C. § 3563(b)(11), a court may in its discretion require a defendant to remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than one year or the term of imprisonment authorized for the offense. If defendant were in the custody of the Bureau of Prisons 12 hours each night, that total time in a year would be six months. To consider only the period of time (one year) for which the court imposed the condition of probation would ignore the number of hours that defendant actually would be confined. U.S. v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997).
1st Circuit holds that community service is not equivalent to intermittent confinement. (560) Defendant’s minimum guideline range was one month. Thus guideline § 5C2.1(c)(2) permitted the substitution of a sentence of probation conditioned on intermittent confinement “in prison or jail or community confinement in a community treatment center, halfway house, or similar residential facility,” under 5C2.1(e). Instead of these alternatives, the district court imposed 1,000 hours of community service. The 1st Circuit reversed, holding that community service is not to be considered an acceptable substitute for a term of confinement under the guidelines. U.S. v. Delloiacono, 900 F.2d 481 (1st Cir. 1990).
2nd Circuit holds that computer monitoring condition of probation was overbroad. (560) Defendant pled guilty to receiving and distributing child pornography in interstate commerce. The district court ordered, as a special condition of probation, that defendant “consent to the installation of systems that will enable the probation office or its designee to monitor and filter defendant’s computer use on a regular or random basis.” The Second Circuit held that the “special needs” of the probation system may render a computer monitoring condition reasonable under the Fourth Amendment. However, the scope of the computer monitoring condition as it currently stood might be overbroad. The panel remanded for the district court to evaluated the privacy implications of the proposed computer monitoring techniques as well as their efficacy as compared with computer filtering. U.S. v. Lifshitz, 369 F.3d 173 (2d Cir. 2004).
2nd Circuit upholds extra term of probation to ensure payment of restitution. (560) The PSR recommended a three-year term of probation and restitution of $8200. Based on fears that defendant would be unable to pay full restitution immediately, the district judge placed defendant on probation for five years, but stated that the probation officer could recommend minimal supervision after three years. Further, the probation could “be terminated after three years if restitution has been paid in full.” Defendant argued that the court violated his due process rights by extending his term of probation to five years on account of his financial situation and current inability to pay restitution. The Second Circuit found no due process violation. A judge has considerable scope and discretion to consider a defendant’s financial resources in setting his initial sentence. In Bearden v. Georgia, 461 F.3d 660 (1983), the Supreme Court held that defendant’s probation could not be revoked for failure to pay a fine or restitution without evidence and findings that he was responsible for the default. Under the balancing approach used the Bearden, the extended probation did not violate due process. The effect on defendant’s liberty interest was much less significant than in Bearden, and there was a rational connection between the purpose of the sentence, to ensure that defendant paid full restitution, and the means employed, extending defendant’s probation. Moreover, guideline § 5B1.2 says that a term or probation may “be used to enforce conditions such as fine or restitution payments.” U.S. v. Johnson, 347 F.3d 412 (2d Cir. 2003).
2nd Circuit holds that cases on supervised release conditions are applicable to conditions of probation. (560) Defendant argued that the district court erred in including in the written judgment conditions of probation that were not mentioned orally at her sentencing. In U.S. v. Truscello, 168 F.3d 61 (2d Cir. 1999), the Second Circuit held that the mandatory and standard guidelines conditions of supervised release are basic administrative requirements, generally imposed by sentencing courts, and therefore, need not be mentioned orally at sentencing. The Second Circuit held that Truscello and its progeny, although involving supervised release, were fully applicable to a sentence to probation. Therefore, it was not reversible error for a sentencing court to impose probation conditions without mentioning them orally at sentencing where the challenged conditions clarified rather than conflicted with the sentence imposed orally. The determination of whether the oral and written sentences are in conflict shall be governed by the Truscello line of cases. Here, all but one of the 19 additional conditions were derived from the lists of mandatory and recommended probation conditions in the guidelines. The one new condition, requiring defendant comply with all INS obligations, did not impose on defendant any new obligations because as a permanent resident alien she was required to comply with INS obligations regardless of her sentence. Thus, this last condition amounted to a clarification of the requirement that she obey the law. U.S. v. Jacques, 321 F.3d 255 (2d Cir. 2003).
2nd Circuit holds that bar on TV viewing during home detention was impermissible. (560) The sentence imposed consisted of five years of probation, the first ten months of which were to be spent in home detention. As a condition of probation, the court barred defendant from watching television, making clear that the restriction was intended to force “deprivation and self-reflection” and thus encourage defendant to “conquer the habit of recidivism that has marred his life.” The Second Circuit reversed, finding that the television bar was not reasonably related to the statutory sentencing factors. The restriction was not designed to further respect for the law, to impose just punishment, to deter criminal conduct, or to provide defendant with needed training. See U.S.S.G. § 5B1.3(b)(1)(D). Moreover, without a closer connection between watching television and this defendant or his crime, the relationship between the challenged condition and the statutory factors was not reasonable. Also lacking was a sufficient relationship between the television restriction and the abatement of defendant’s criminality. A district court is not prohibited from imposing conditions of probation that restrict a defendant’s access to household amusements and comforts. Imposition of such conditions might be proper where “the amenities available in the residence of a defendant would cause home detention not to be sufficiently punitive.” Here, however, the court made it clear that it was not imposing the condition for that purpose. U.S. v. Bello, 310 F.3d 56 (2d Cir. 2002).
2nd Circuit narrows conditions of probation relating to prior sex offense. (560) Defendant pled guilty to bank larceny. He was sentenced to probation, subject to several special conditions that were influenced by his previous conviction for incest. The Second Circuit held that a restriction on defendant’s computer ownership and Internet access was not reasonably related to his prior conviction, nor reasonably necessary to protect the public from future crimes. Defendant’s past incest offense had no connection to computers or to the Internet. The condition constituted an unnecessary occupational restriction, since it prohibited him from using “commercial computer systems/services” for employment purposes. Given defendant’s past sexual abuse of his 14-year old disabled daughter, the court was justified in prescribing mandatory sex offender therapy. Although the court could leave the details of such therapy to the probation officer, the court could not delegate the decision whether defendant needed to attend such therapy. The court could properly require defendant to notify third parties of the current bank larceny offense, but it lacked authority to require defendant to provide notification of his prior incest conviction. Finally, the restriction on “being on any school grounds, park, recreational facility or in any area in which children are likely to congregate” was ambiguous, and, depending on its meaning, excessively broad. There was no justification for barring defendant from being at parks and educational or recreational facilities where children do not congregate. U.S. v. Peterson, 248 F.3d 79 (2d Cir. 2001).
2nd Circuit rules court may not have known it could impose probation without departing. (560) Defendant had an offense level of 7 and a criminal history of I. Those calculations placed him within Zone A of the Sentencing Table, with a resulting sentencing range of 0-6 months. The PSR recommended against sending defendant to prison, finding a sentence of three years’ probation would serve defendant and the victim better. At sentencing, the judge adopted the guideline calculations in the PSR, but then said “I am not granting a departure. Although I have the authority, it is not warranted.” The judge sentenced defendant to six months in prison. The Second Circuit remanded, since judge’s comments suggested that he erroneously believed that he needed to depart downward to impose a probationary sentence. That belief, if held by the judge, was wrong, since the guidelines authorize a sentence of probation for a Zone A defendant without the necessity of a downward departure. U.S. v. Thorpe, 191 F.3d 339 (2d Cir. 1999).
2nd Circuit reverses probation violation where probationary sentence was invalid. (560) Defendant pled guilty to wire fraud. In December 1995, the judge sentenced her to 9 months’ home detention followed by 3 years supervised release. The judge modified the order 8 days later to correct a clerical error in the docketing number. He further modified the order in March 1996, altering the sentence from 3 years of supervised release to 3 years of probation. However, the court mistakenly provided that the 9 months of home confinement should follow that term of probation, rather than having the probation include a period of home detention as a special condition. Later in March the judge corrected this error and made the home confinement a condition of probation. Defendant was then accused of violating her probation. The Second Circuit held that the original sentence and the subsequent modifications were invalid. Therefore, there was no probation violation. The original sentence was illegal because home detention can never be a proper sentence in its own right. It must be either a condition of a term of probation or of supervised release. Moreover, a period of supervised release presupposes a period of imprisonment. Under Rule 35(c) and Rule 36 corrections must be made within 7 days, and these were not the type of corrections permitted under Rule 36. U.S. v. Thomas, 135 F.3d 873 (2d Cir. 1998).
2nd Circuit approves truthfulness as condition of probation. (560) Defendant was sentenced to a three year term of probation on condition that he submit a truthful and complete written report each month and answer truthfully all inquiries by the probation officer. Defendant argued that the Sentencing Act does not require him to give information that is truthful. The Second Circuit found the argument meritless. Implicit in the Act’s authorization for the court to require that a probationer make reports and answer inquiries is authority to require that those reports and answers be truthful. If the court did not require truthfulness, it would promote disrespect for the law. Moreover, the policy statements in § 5B1.4(a) (2) and (3) require truthfulness. U.S. v. Conte, 99 F.3d 60 (2d Cir. 1996).
2nd Circuit strikes down occupational restriction not supported by findings. (560) Defendant, an accountant, was convicted of aiding and abetting the preparation and filing of false income tax returns. The district court ordered him, as a condition of his probation, to notify his tax preparation clients of his conviction. Defendant argued that the condition was not reasonably necessary to protect the public, and the Second Circuit agreed. An occupational restriction may only be imposed under 18 U.S.C. § 3563(b)(6) if it is reasonably necessary to protect the public from further crimes. Under the guidelines, a court may not impose an occupational restriction unless it finds that there is reason to believe that the defendant will continue to engage in unlawful conduct similar to that for which he was convicted. Here, defendant was not a repeat offender. He was guilty of a single offense in 1988. He began cooperating with the government four years before sentencing, and in the same year began his own tax preparation service. During the period of cooperation — a period of more than twice the probationary period imposed — he committed no further crimes. U.S. v. Doe, 79 F.3d 1309 (2d Cir. 1996).
2nd Circuit upholds contempt, suspending lawyer from practicing law in the district. (560) Defendant, a criminal defense attorney, was convicted of criminal contempt for repeatedly speaking to the media in violation of local court rules. Section 2J1.1 instructed the court to apply § 2X5.1, which in turn directed the court to apply the most analogous guideline, and if there was not a sufficiently analogous guideline, to apply 18 U.S.C. § 3553(b). That statute directed the court to impose “an appropriate sentence.” The Second Circuit upheld a sentence of three years probation, a concurrent 180-day suspension from practicing law within the district, and a 90-day period of house arrest. Defendant was not ordered to surrender his license or resign from the Bar. He was simply barred from practicing law before a single federal court during a portion of his probationary period. The connection between defendant’s profession and his contemptuous behavior was readily apparent. No further fact-finding was necessary. The length of the probation was well within the five-year maximum term of probation for misdemeanors. Nonetheless, the court was troubled by the potentially severe collateral consequences of defendant’s probation. U.S. v. Cutler, 58 F.3d 825 (2d Cir. 1995).
3rd Circuit holds that statutes’ bar against probation applied to defendant, despite eligibility for safety valve protection. (560) Defendant pled guilty to importation of more than 100 grams of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2), a Class B felony with a five-year mandatory minimum sentence. The district court granted her a downward departure for aberrant behavior, and imposed a sentence of five years’ probation. However, under 18 U.S.C. § 3651(a)(1) a defendant who is found guilty of a class B felony may not be sentenced to a term of probation. In addition, a defendant who is found guilty under § 952 of importing 100 grams or more of a mixture or substance containing heroin cannot be placed on probation. The Third Circuit held that the district court plainly erred in sentencing defendant to probation. Defendant’s eligibility for safety valve protection did not render the prohibitions on probation inapplicable to her. See U.S. v. Green, 105 F.3d 1321 (9th Cir. 1997). The “notwithstanding any other provision of law” language in § 3553(f) of the safety valve statute is tied only to the ability to disregard statutory minimum terms of imprisonment. U.S. v. Dickerson, 381 F.3d 251 (3d Cir. 2004).
3rd Circuit rejects travel restriction as special condition of probation. (560) While attempting to cooperate with authorities, defendant transported illegal drugs into the U.S. from Belgium. He pled guilty to simple possession of a controlled substance. The Third Circuit reversed a special condition of probation barring defendant from traveling outside of the United States. In order to impose a special condition of probation, a district court must engage in an inquiry which results in findings on the record to justify that condition, and should indicate how that condition meets the statutory purposes of probation. In the present case, the district court did not make any findings to support the travel restriction, and did it indicate how the restriction fit within the statutory aims of probation. Although it would probably be in defendant’s best interest that he not revisit his old “stomping grounds” in Israel, where his troubles began, in view of the inadequacy of the record, the travel restriction could not stand. U.S. v. Warren, 186 F.3d 358 (3d Cir. 1999).
3rd Circuit finds defendant’s eligibility for probation should be based on classifications in effect when offense was committed. (560) Defendant committed an offense which, at the time it was committed, was a Class B felony. By the time he was sentenced, the law had been amended and defendant’s offense was reclassified as a Class C felony. One who commits a Class C felony is eligible for probation, while one who commits a Class B felony is not. The district court determined that defendant had committed a Class C felony, and sentenced her to probation. The 3rd Circuit remanded for resentencing. The “savings statute,” 1 U.S.C. § 109, provides that the repeal of any statute does not extinguish any “penalty” incurred under such statute, and such statute will be treated as remaining in force for the purpose of enforcing such penalty. The court found that ineligibility for probation was a type of penalty, and therefore the savings statute prohibited the application of the amendment to defendant. U.S. v. Jacobs, 919 F.2d 10 (3rd Cir. 1990).
4th Circuit holds that probation eligibility is governed by statute in effect at time of offense. (560) A drug defendant argued that she was eligible for probation because Congress subsequently amended the statute under which she was sentenced to make her offense a class C felony. The 4th Circuit disagreed, holding that because the offense which she committed was a Class B felony at the time of the commission, the district court properly found that probation was an unavailable option under 18 U.S.C. § 3561(a). The “savings statute,” 1 U.S.C. § 109 prevents application of the statutory change. Thus, the fact that her offense was a Class C offense at the time of sentencing did not make her eligible for parole. U.S. v. Cook, 890 F.2d 672 (4th Cir. 1989).
4th Circuit holds that a probation sentence requires community confinement if the minimum term is between one and six months. (560) A convicted check kiter received a sentence of probation, and the government appealed, arguing that the guidelines mandated a term of imprisonment. The 4th Circuit agreed, stating that under § 5B1.1, although probation is permitted where the minimum sentence is six months, as was the case here, some intermittent confinement or community confinement is required as a condition of probation. U.S. v. Bolden, 889 F.2d 1336 (4th Cir. 1989).
5th Circuit finds errors not plain where court strongly believed probation for child pornographer was appropriate. (560) Defendant received a 60-month probationary sentence for possessing child pornography. The government argued for the first time on appeal that the district court committed procedural error when it (1) took into account the disparity between defendant’s sentence and his co-defendant’s sentence, and (2) failed to consider pertinent Guidelines provisions barring probation where the guideline range falls within Zone D. The Fifth Circuit agreed that the district court erred when it considered the sentencing disparity between defendant and his co-defendants, because the disparity was caused by the co-defendant’s receipt of a substantial assistance departure. Despite the error, the panel could not remand under plain error review because the government failed to establish that the error affected substantial rights. The district court strongly believed that probation was appropriate given defendant’s unique circumstances. Therefore, any potential procedural error did not affect the outcome. The sentence was also substantively reasonable. U.S. v. Duhon, 541 F.3d 391 (5th Cir. 2008).
5th Circuit rejects firearm prohibition as condition of probation. (560) Defendant was convicted of one count of negligent discharge of a pollutant into navigable waters. The 5th Circuit rejected a condition of defendant’s probation that prohibited him from possessing a firearm during his probation. Prohibition of firearm possession is a discretionary condition of probation that may be imposed if it is “reasonably related” to the goals of sentencing and involves “reasonably necessary” deprivations of liberty and property. Defendant was convicted of a nonviolent misdemeanor. The offense had no relevance to or connection with the use or possession of firearms. There was no evidence that defendant had any tendency to violence or that he posed any danger to the public. U.S. v. Voda, 994 F.2d 149 (5th Cir. 1993)
5th Circuit says court may not designate place of confinement under 18 U.S.C. §3563(b)(11). (560) As a condition of probation, 18 U.S.C. §3563(b)(11) provides that a convict may be required to remain in the custody of the Bureau of Prisons for certain limited intervals of time. The 5th Circuit held that only the Bureau of Prisons, and not the district court, is authorized to designate the place of confinement under section 3563(b)(11). Thus, the district court was not authorized to designate Mansfield Law Enforcement Center as the place for defendant’s 60-day jail term. The court was also not authorized under section 3563(b)(12) to make this designation. This section permits a court to designate a community corrections facility, which does not include jails. U.S. v. Voda, 994 F.2d 149 (5th Cir. 1993)
5th Circuit limits probationer’s financial disclosures to tax years covered by indictment. (560) Defendant was convicted of three counts of tax evasion for not filing federal tax returns for the years 1985, 1986 and 1987. His conditions of probation required him to provide his probation officer with access to any requested financial information and cooperate with the IRS to resolve the tax matter in the indictment. The 5th Circuit found that the conditions were overbroad. To the extent the conditions applied to tax years other than those which were the subject of the litigation, they interfered with defendant’s fourth and fifth amendment rights. To the extent that the conditions interfered with defendant’s ability to fully and fairly litigate his civil tax liability, they were required to be reversed. Thus, the condition to provide financial information and cooperate with the IRS was limited to tax years 1985, 1986 and 1987, and could not exceed the requirements of federal civil discovery and trial rules. However, once his tax liability is finally determined, defendant can be required to provide financial information regarding his ability to pay. U.S. v. Stafford, 983 F.2d 25 (5th Cir. 1993).
5th Circuit refuses to grant credit for time spent in official detention to reduce a term of probation. (560) Defendant argued that the time he served in prison prior to his sentencing should be credited towards the community confinement portion of the three year sentence of probation he eventually received. The 5th Circuit rejected this argument because the statute governing credit for time served, 18 U.S.C. section 3585(b), only allows credit for presentence official detention to be applied to a term of imprisonment, not a term of probation. Under the Supreme Court’s recent decision in United States v. Wilson, 112 S.Ct.1351 (1992), a necessary condition to obtaining a section 3585(b) credit is that the offender must first exhaust his administrative remedies with the Bureau of Prisons. However, defendant was not committed to the custody of the Bureau of Prisons after sentencing and his sentence of probation is not supervised by the Bureau of Prisons. Thus, he cannot exhaust his administrative remedies before it. This scheme does not violate equal protection. U.S. v. Dowling, 962 F.2d 390 (5th Cir. 1992).
5th Circuit rules total, not base offense level is used to determine probation. (560) Defendant pled guilty to transporting a firearm with an obliterated serial number, and received a four month suspended term and five years probation. The defendant’s base offense level was six, but he received a two point decrease for acceptance of responsibility leaving him with a total offense level of four. Section 5B1.2 provides that “where probation is imposed, the term shall be (1) at least one year but not more than five if the offense level is six or greater, (2) no more than three years in any other case.” The 5th Circuit agreed with the defendant that offense level meant total offense level, and vacated the five year probation term. It remanded the district court with directions either to enter a three year term or to make findings justifying an upward departure. U.S. v. Harry, 874 F.2d 248 (5th Cir. 1989).
6th Circuit upholds prohibition against employment in banking industry during probation. (560) Defendant, the vice president of a bank, made loans to fictitious customers and then used the money for his own use. The Sixth Circuit upheld a prohibition against defendant obtaining employment in the banking industry during his period of probation, even though the court failed to state its reasons for the departure. Conditions of probation or supervised release must be upheld if they are reasonably related to the goals of probation, rehabilitation of the defendant, and protection of the public. The reasons for the employment restriction were quite clear. The prohibition would assist defendant in avoiding conditions that led him to commit his current crime. The court’s failure to state its reasons on the record was harmless error. U.S. v. Berridge, 74 F.3d 113 (6th Cir. 1996).
6th Circuit upholds prohibition against serving in or seeking public office as a condition of probation. (560) Defendant was an elected city councilman convicted of violating the Hobbs Act by soliciting a bribe. Part of defendant’s sentence included two years of supervised probation. One of the conditions of probation prohibited defendant from serving in or seeking public life. The 6th Circuit rejected defendant’s argument that this condition deprived him of his First Amendment rights without due process. 18 U.S.C. § 3563(b)(6) specifically allows a court to impose as a condition of probation that the individual refrain from engaging in a specified occupation. Probation restrictions that affect fundamental rights such as freedom of speech or freedom of association are permitted if the conditions are primarily designed to meet the ends of rehabilitation and protection of the public. The court found that the condition imposed upon defendant served this dual purpose by insulating him from the same environment that enabled him to violate the Hobbs Act and protected the public from defendant’s recidivism. U.S. v. Peete, 919 F.2d 1168 (6th Cir. 1990).
7th Circuit says husband lacks standing to challenge wife’s probation condition. (560) Defendant and his wife pleaded guilty to bankruptcy fraud. The district court sentenced defendant’s wife to two years of probation, on condition that she refrain from all contact with defendant during those two years. Defendant was sentenced in a separate proceeding. In his appeal, defendant argued that his wife’s probation condition violated his right to a marital relationship. The Seventh Circuit held that defendant lacked standing to challenge a probation condition imposed on his wife. U.S. v. Diekemper, 604 F.3d 345 (7th Cir. 2010).
7th Circuit rejects downward departure to sentence of 37 months’ home detention. (560) The district court determined that defendant’s medical condition warranted a downward departure and imposed a sentence of 37 months of home detention. The court tried to keep defendant’s sentence consistent with the guidelines while also keeping him out of prison. Thus, instead of departing through offense levels, the judge departed from the restrictions of § 5B1.1 and § 5C1.1. The Seventh Circuit held that the district court improperly departed outside the guidelines. Although § 5H1.4 allows the use of home detention, the defendant’s offense level must be in Zone A or B to satisfy the requirements of § 5B1.1(a) (probation not allowed for Zone C or D offense levels), § 5C1.1(f) (if applicable guideline range is in Zone D, the minimum term shall be satisfied by a sentence of imprisonment), and § 5F1.1 (community confinement may be imposed a condition of probation or supervised release). Consequently, upon resentencing, unless defendant’s offense level was in Zone A or B, the district court could not sentence him to home detention. U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000).
7th Circuit affirms that sentence of “conditional discharge” is the same as probation. (560) The 7th Circuit affirmed the inclusion in defendant’s criminal history of a one year sentence of “conditional discharge” for resisting a peace officer. Although section 4A1.2(c)(1) excludes “hindering or failing to obey a police officer” from a defendant’s criminal history, there is an exception for a term of probation of at least one year. For purposes of this guideline exception, a term of probation is the same as a term of conditional discharge. Probation means that the convicted defendant is not incarcerated but must comply with various conditions set by the sentencing court and monitored by a probation officer. Conditional discharge is the same except that there is no probation officer. U.S. v. Caputo, 978 F.2d 972 (7th Cir. 1992).
7th Circuit holds court may not depart downward to impose probation under 21 U.S.C. 841(b)(1)(A). (560) Defendant’s crime carried a mandatory minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A). The district court departed downward based on defendant’s substantial assistance to authorities, and sentenced defendant to probation. The 7th Circuit remanded for resentencing, finding that § 841(b)(1)(A) prohibited a court from imposing probation in lieu of imprisonment. That section provides for a minimum 10-year term of imprisonment, and expressly prohibits a court from placing on probation any person sentenced under the section. Permitting a court to then depart downward and sentence a defendant to probation would render the prohibition meaningless. U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
8th Circuit upholds total ban on alcohol during probation. (560) Defendant, a member of an Indian tribe, was convicted of embezzlement and willful misapplication of tribal property, and sentenced to three years of probation. One of the conditions of probation required that defendant “totally abstain from the use of alcohol [and] submit to drug/alcohol screening at the direction of the U.S. Probation Officer to verify compliance.” The Eighth Circuit found ample evidence to support a total alcohol ban. Defendant had three alcohol-related offenses, including two recent offenses – public intoxication in January 2009 and driving under the influence in October 2010, when her grandchildren were in the car she was driving. It was significant that the court, varying downward from the advisory guideline range of six to 12 months of imprisonment, sentenced defendant to 36 months of probation, with the first six months in home confinement at her home on the reservation. Tribal law prohibited alcohol consumption by Indians within the reservation boundaries. It was reasonable to require defendant to comply with tribal law while confined to her home as a more lenient alternative to incarceration. U.S. v. Robertson, 709 F.3d 741 (8th Cir. 2013).
8th Circuit bars defendant from contact with child who was victim of sexual abuse. (560) Defendant, convicted of aiding and abetting the abuse of a minor, had failed to respond to an incident of sexual abuse between her partner and one of her children, and had allowed her underage children to drink and be exposed to drug use. The court orally imposed several specific conditions of probation, including one that stated that defendant could not reside with any child under the age of 18. Defendant argued that the written condition in her judgment broadened the scope of the oral condition because it prevented defendant from having contact with all of her children, not just the victim. The Eighth Circuit agreed that the oral pronouncement of the special condition controlled, and vacated the written condition to the extent it did not conform with the oral special condition. The panel also found no abuse of discretion in prohibiting defendant, as a condition of probation, from having any contact with a child who was a victim of sexual abuse. Defendant allowed her minor children to drink and smoke marijuana, and repeatedly ignored evidence that the victim was being sexually abused by defendant’s partner. The court acted well within its discretion in imposing conditions that allowed the probation officer to monitor defendant’s contact with the victim and her other children. U.S. v. Brave, 642 F.3d 625 (8th Cir. 2011).
8th Circuit says defendant waived right to appeal condition of probation. (560) Defendant pled guilty to one misdemeanor count of making a false statement to the U.S. Department of Housing and Urban Development. The district court sentenced her to five years’ probation, and imposed a condition of probation requiring her submission to mandatory drug testing. The Eighth Circuit ruled that defendant waived the right to appeal this condition of probation. Her plea agreement stated that she waived “any right to raise on appeal or collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement.” The appeal waiver was knowing and voluntary. Moreover, even if defendant had not waived her right to appeal her sentence, her appeal was meritless. The PSR detailed defendant’s drug use. Even though she stopped using methamphetamine a year prior to sentencing, given her history of substance abuse and her limited means, drug testing was appropriate to make sure she made full restitution to HUD. U.S. v. Cervantes, 420 F.3d 792 (8th Cir. 2005).
8th Circuit upholds no probation for Zone C misdemeanor. (560) Defendant, a county sheriff, was convicted of violating the civil rights of a victim by sexually assaulting her and soliciting sexual favors, 18 U.S.C. § 242. He argued that because his offense was a misdemeanor, he should have been eligible for straight probation, and the Sentencing Commission should not have precluded that option for misdemeanors within Zone C of the Sentencing Table. See USSG § 5C1.1(d) (Zone C sentences must include a term of imprisonment). The Eighth Circuit found this argument without merit. Congress gave the Commission broad authority to promulgate the Sentencing Guidelines. In U.S. v. Barrett, 937 F.3d 1346 (8th Cir. 1991), the court held that while Congress authorized the Commission to make probation available for some crimes, “it did not require probation to be made available.” Other courts have reached the same conclusion. See, e.g., U.S. v. Lueddeke, 908 F.2d 230 (7th Cir. 1990). U.S. v. Webb, 214 F.3d 962 (8th Cir. 2000).
8th Circuit strikes condition barring defendant from entering national park for recreational purposes. (560) Defendant was convicted of operating a tour boat business within Voyageurs National Park (VNP) without a permit. One of the conditions of defendant’s probation was that defendant have “no presence” in VNP except pursuant to the terms and conditions of any permits for the conduct of commercial operations granted to him by the National Park Service (NPS). Defendant argued that the condition was cruel and unusual punishment because his livelihood depended on his traveling through VNP as a federally licensed tanker to deliver supplies to families on the lake. The Eighth Circuit found no merit, since defendant could seek a permit from the NPS to operate his tanker delivery service. However, the Eighth Circuit agreed that it was improper to bar defendant from entering VNP to pursue the same non-business activities that other visitors to VNP pursue. Although defendant had “persisted for a long time to have the federal courts decide that the NPS [was] without authority to regulate commercial activities on the lake, … this fact [was] not a sufficient reason to deny [defendant] the same satisfaction that other visitors of VNP enjoy.” U.S. v. Armstrong, 186 F.3d 1055 (8th Cir. 1999).
8th Circuit upholds home detention and psychiatric treatment as conditions of probation. (560) The Eighth Circuit upheld the imposition of home detention as a condition of probation. Home detention is expressly authorized for offenses within Zone A of the Sentencing Table by the guideline commentary. The fact that home detention may be imposed “only as a substitute for imprisonment,” does not mean it is a form of imprisonment that cannot be coupled with probation. The court also properly gave the probation officers the authority to order psychiatric treatment. The PSR said defendant’s family and friends had expressed concerns as to defendant’s emotional condition. The procedural requirements of the Insanity Defense Reform Act apply to convicted persons committed in the custody of the Bureau of Prisons, not persons placed on probation. U.S. v. Iversen, 90 F.3d 1340 (8th Cir. 1996).
8th Circuit says 1989 sentence modification did not affect probation so 18 U.S.C. § 3561 did not apply. (560) In 1986, defendant was sentenced to eight years on 14 counts, five years on other counts, and five years probation on three additional counts. Probation was to begin after she completed the concurrent sentences. In 1989, the sentencing court reduced the eight year terms to four years, but did not alter the other sentences. Probation commenced in 1991. Defendant claimed that the probation sentence was illegal because it was imposed together with a term of imprisonment, in violation of 18 U.S.C. § 3561(a)(3). The Eighth Circuit rejected the argument because § 3561 was not in effect when defendant was originally sentenced in 1986, and the 1989 modification affected only those counts on which custodial sentences had been imposed. The reduction merely adjusted the date defendant began serving probation. It did not affect the date she was sentenced to probation or trigger the application of § 3561. U.S. v. Smith, 62 F.3d 1073 (8th Cir. 1995).
8th Circuit vacates alcohol restrictions as conditions of probation. (560) Defendant was convicted of converting collateral pledged to a government agency. As a condition of probation, defendant was prohibited from purchasing, possessing, or using alcohol, and was subject to warrantless searches for alcohol and drugs at any time. The 8th Circuit vacated these conditions, holding that they were not reasonably related to the crime to which he pled guilty. The rationale of U.S. v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), which struck down similar conditions on a defendant’s supervised release, was equally applicable to conditions of probation. The court may impose conditions that are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) if they involve only such deprivations or liberty or property as are reasonably necessary. U.S. v. Stoural, 990 F.2d 372 (8th Cir. 1993).
8th Circuit says court properly considered need for medical care in denying probation. (560) Defendant had a sentencing range of four to 10 months, and thus was eligible for probation under section 5B1.1(a)(2). He requested probation with an appropriate condition of confinement so that his physical and psychological treatment would not be disrupted. The 8th Circuit held that in rejecting this request, the district court properly considered defendant’s need for medical care as required by 18 U.S.C. section 3553(a)(2)(D). That section also requires the district court to consider the history and characteristics of the defendant. The court considered defendant’s medical needs by recommending that he be incarcerated in Rochester, where he had been undergoing medical treatment, so that he could continue his treatment with the same medical personnel. U.S. v. Byrd, 984 F.2d 251 (8th Cir. 1993).
8th Circuit remands for district court to explicitly consider probation option. (560) The presentence report set defendant’s offense level at 11, with a guideline range of 8 to 14 months. In this range, imprisonment would be required, and therefore the presentence report did not discuss probation. The district court did not impose one of the enhancements, resulting in an offense level of nine, and a guideline range of four to eight months. In this lower range, probation with community confinement and without incarceration was available. The district court imposed a sentence of four months, two to be served in confinement and the other two in a community treatment center. The 8th Circuit remanded to consider whether probation was appropriate. While the trial court was not required explicitly to reject probation, the appellate court thought remand was desirable in light of presentence report, which clearly excluded the probation option. U.S. v. Wollenzien, 972 F.2d 890 (8th Cir. 1992).
8th Circuit rules guidelines are consistent with Sentencing Reform Act. (560) Defendant contended that the sentencing guidelines applicable to his case were inconsistent with the Sentencing Reform Act of 1984, which requires a sentencing court to consider the “history and characteristics of the defendant” and alternatives to imprisonment. The 8th Circuit rejected this claim. The district court had the benefit of the pre-sentence report on defendant, which detailed his history and characteristics. This was sufficient to fulfill the mandate in the Sentencing Reform Act. While Congress authorized the Sentencing Commission and the courts to make probation available for some crimes, it did not require probation to be made available. U.S. v. Barrett, 937 F.2d 1346 (8th Cir. 1991).
8th Circuit declines to review validity of probation guidelines as defendant did not raise issue below. (560) Defendant argued that 28 U.S.C. § 994 required the Commission to promulgate guidelines that set forth probation as the only available sentence for specific offenses. Since he did not raise the issue below, the 8th Circuit declined to review it. However, the court stated that it did not appear that § 994 required the Commission to establish probation as the only sentence for certain offenses. U.S. v. Fritsch, 891 F.2d 667 (8th Cir. 1989).
9th Circuit requires juvenile to register as sex offender under SORNA. (560) Juveniles pleaded “true” to committing aggravated sexual abuse with children. As a condition of probation or supervised release, the juveniles were ordered to register as sex offenders under the federal Sex Offender Registration and Notification Act. The Ninth Circuit held that the SORNA registration requirement did not impermissibly conflict with the confidentiality requirement of the Federal Juvenile Delinquency Act. The court also rejected challenges to the registration requirement under the Equal Protection Clause, the Eighth Amendment prohibition on cruel and unusual punishment, the Self-Incrimination Clause, and the Due Process Clause. U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012).
9th Circuit says suspicionless, warrantless probation search condition does not violate Fourth Amendment. (560) At defendant’s sentencing for misdemeanor drug possession, the district court imposed a condition of probation requiring defendant to submit his person, property, place of residence, vehicle, and personal effects to a warrantless, suspicionless search by any law enforcement officer. The Ninth Circuit held that because the Supreme Court had held that a suspicionless search of a parolee does not violate the Fourth Amendment and because the Ninth Circuit has held that there is no constitutional difference between probation and parole, the search condition was valid. U.S. v. Baker, 658 F.3d 1050 (9th Cir. 2011), overruled by U.S. v. King, 687 F.3d 1189 (9th Cir. 2012) on other grounds.
9th Circuit says DNA collection may not be probation condition for misdemeanor drug possession. (560) As a condition of probation on defendant’s conviction for misdemeanor drug possession, the district court ordered defendant to cooperate in the collection of DNA as directed by the probation officer. The Ninth Circuit held that under the “plain text” of 42 U.S.C. § 14135a, a court lacks authority to order the probation officer to collect DNA from a defendant convicted of a misdemeanor drug offense. U.S. v. Baker, 658 F.3d 1050 (9th Cir. 2011), overruled by U.S. v. King, 687 F.3d 1189 (9th Cir. 2012) on other grounds.
9th Circuit finds challenge to probation condition ripe on direct appeal from conviction. (560) At sentencing on defendant’s misdemeanor drug conviction, the district court imposed a condition of probation requiring defendant to submit to a suspicionless probation search. On appeal, defendant challenged this condition, and the government argued that the challenge was not ripe because no search had ever been conducted pursuant to the condition. The Ninth Circuit held that defendant could bring a facial challenge to the probation condition on direct appeal from a sentence in which that condition was imposed. U.S. v. Baker, 658 F.3d 1050 (9th Cir. 2011), overruled by U.S. v. King, 687 F.3d 1189 (9th Cir. 2012) on other grounds.
9th Circuit says statute requiring mandatory minimum precludes imposition of probation. (560) The statute authorizing a court to impose a sentence of probation, 18 U.S.C. § 3561, allows a court to impose probation unless, among other limitations, “the offense is an offense for which probation has been expressly excluded.” Under 18 U.S.C. § 2252, a court must impose a five-year mandatory minimum sentence for defendants convicted of receiving child pornography, but the statute does not expressly preclude imposition of probation. Under the now-advisory guidelines, probation is precluded for offenses carrying mandatory minimum sentences. The Ninth Circuit held that the mandatory minimum sentence in § 2252 precluded imposition of a probationary sentence under § 3651. U.S. v. Mueller, 463 F.3d 887 (9th Cir. 2006).
9th Circuit says probation condition requiring probationer to answer officer’s questions violated Fifth Amendment. (560) The terms of defendant’s state felony probation required him to answer all reasonable inquiries from correctional personnel. Failure to comply with a probation condition was grounds for revocation of probation. During questioning by a probation officer, defendant admitted that he possessed a firearm. Officers seized the firearm, and defendant was later charged in federal court with being a felon in possession of a firearm. The district court suppressed the statement that defendant made to his probation officer, and the government appealed. On appeal, the Ninth Circuit affirmed, holding that because defendant’s probation condition required him to choose between answering the probation officer’s questions or facing probation revocation, his statements to the probation officer were compelled, in violation of the Fifth Amendment privilege against incrimination. U.S. v. Saechao, 418 F.3d 1073 (9th Cir. 2005).
9th Circuit holds that immigration consequences of sentence do not require higher burden of proof. (560) Defendant was charged with possession of methamphetamine with intent to distribute it, but convicted of the lesser-included offense of possession of methamphetamine, in violation of 21 U.S.C. § 844. He sought to be sentenced to probation under the “First Offender Act,” 18 U.S.C. § 3607. The district court found by a preponderance of the evidence that defendant did not possess the methamphetamine for personal use, declined to impose probation, and sentenced him to seven months’ imprisonment. Defendant argued that the district court’s use of a preponderance standard, rather than a clear-and-convincing-evidence standard to impose a sentence of incarceration, violated due process because it had a “disproportionate impact” on his sentence and resulted in his deportation. The Ninth Circuit rejected this argument, holding that the immigration consequences of a sentence do not require a court to use a higher standard of proof in determining facts that support the sentence. U.S. v. Gonzalez, 365 F.3d 796 (9th Cir. 2004).
9th Circuit says no notice is required to depart from probation violation policy statements. (560) After pleading guilty to escape, in violation of 18 U.S.C. § 751(a), defendant was sentenced to five years’ probation. At sentencing, the district court warned defendant that it would depart if he violated the terms of his probation. Defendant violated the terms of his probation by committing numerous felonies, including armed robbery and burglary. The guideline provisions setting sentencing ranges for probation violations in Chapter 7 are policy statements, not guidelines. At sentencing on the probation violations, the district court imposed the maximum sentence of five years. The Ninth Circuit held that because the sentencing ranges in Chapter 7 are merely advisory and not binding on the sentencing judge, a district court is not required to give notice before departing. In any event, the court held, the defendant had received sufficient notice. U.S. v. Garcia, 323 F.3d 1161 (9th Cir. 2003).
9th Circuit reaffirms that repayment of cost of court-appointed counsel cannot be a condition of supervised release. (560) In U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995), the court held that requiring repayment of the cost of a court-appointed attorney is not reasonably related to the factors set forth in 18 U.S.C. § 3553(a)(2)(B) governing imposition of supervised release. The Ninth Circuit here reaffirmed that ruling, holding that the district court erred in conditioning defendant’s supervised release on his repayment of the cost of his court-appointed attorney. The court noted, however, that a valid recoupment order could be enforced under 18 U.S.C. § 3000a(f). U.S. v. Lomow, 266 F.3d 1013 (9th Cir. 2001).
9th Circuit upholds ban on employment in the legal field for two years as condition of probation. (560) Defendant was convicted of practicing law without a license. As a condition of her two-year term of probation, the district court ordered that she “not be employed by, affiliated with, own or control, or otherwise participate, directly or indirectly, in the conduct of affairs of any law office, or any institution in the business of providing legal services.” Defendant argued on appeal that this condition improperly restricted her ability to be employed in the legal field and that a less restrictive alternative could have been adopted. The Ninth Circuit upheld the condition, stating that it “meets the requirement of the applicable guideline, USSG § 5F1.5, and we are not firmly convinced that the district court erred in finding it necessary and reasonable.” The condition was well within the district court’s discretion. U.S. v. Clark, 195 F.3d 446 (9th Cir. 1999).
9th Circuit holds straight prison time and probation are mutually exclusive. (560) Defendant pled guilty to bankruptcy fraud. The district court sentenced him to five years’ probation on condition that he “remain for six months in the custody of the Bureau of Prisons.” On appeal, the Ninth Circuit reversed, noting that 18 U.S.C. § 3561(a)(3) provides for a sentence of probation “unless … the defendant is sentenced at the same time to a term of imprisonment for the same or different offense that is not a petty offense.” The statute thus precludes the imposition of both probation and straight imprisonment. A condition of intermittent confinement on nights or weekends would have been permissible under 18 U.S.C. § 3563(b), but the straight sentence of six months in this case was not intermittent confinement. The error was plain and required reversal. U.S. v. Forbes, 172 F.3d 675 (9th Cir. 1999).
9th Circuit permits judge to correct illegal sentence within seven days under Rule 35(c). (560) Generally, a sentence is deemed imposed when it is announced by the district judge in open court. However, Rule 35(c), Fed. R. Crim. P., provides that the court, acting within seven days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical or other clear error. In this case, the Ninth Circuit held that this rule authorized the district court to correct its illegal sentence two days after it was imposed. The original sentence was illegal because a sentence of straight probation was not authorized for a Class B felon under 18 U.S.C. § 3561(a). Because the correction occurred two days later, it was within the seven-day limit in Rule 35(c), and the correction could be made sua sponte. U.S. v. Colace, 126 F.3d 1229 (9th Cir. 1997).
9th Circuit says “safety valve” does not supersede statutory ban on probation (560) Defendant was convicted of cultivating more than 1,000 marijuana plants in violation of 21 U.S.C. § 841(a)(1). Section 841(b) prescribes the mandatory minimum prison term and also indicates the “notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” Defendant argued that the safety valve provision in 18 U.S.C. § 3553(f) “trumped” this prohibition on probation. The Ninth Circuit disagreed, holding that the safety valve only permits the judge to sentence below the mandatory minimum. It does not affect the statutory ban on probation. Defendant’s sentence of probation was reversed. U.S. v. Green, 105 F.3d 1321 (9th Cir. 1997).
9th Circuit says probationer may agree to modify probation without a hearing or counsel. (560) After the probationer failed to satisfy the requirements of his drug treatment program, his probation officer suggested that he return to the community corrections center for more treatment. The probationer agreed to waive his rights under Rule 32.1(b) Fed. R. Crim. P. to a hearing and counsel and agreed to a modification of probation. Later, he agreed to a second modification, and the district court extended his probation by one year. When he again tested positive for drug use, his probation was revoked. On appeal, the Ninth Circuit held that a probationer may, without counsel, waive his rights under 18 U.S.C. § 3563(c) and Fed. R. Crim. P. 32.1(b) to a hearing and advice of counsel before probation may be modified. The district court found that the probationer’s waiver was knowing and voluntary and held that the law does not require consultation with counsel in order for the waiver to be effective. U.S. v. Stocks, 104 F.3d 308 (9th Cir. 1997).
9th Circuit upholds public apology as condition of probation. (560) Two police officers were convicted of perjury in connection with their EEOC complaint against the police department. As a condition of probation the judge ordered them to publish an apology in the local newspaper or in the police department’s newsletter. On appeal they argued that the probation condition violated their First Amendment right to refrain from speaking. The 9th Circuit rejected the argument, noting that the test for validity of probation conditions, even where preferred rights are affected, is “whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.” Here the court held that a public apology may serve a rehabilitative purpose. U.S. v. Clark, 918 F.2d 843 (9th Cir. 1990), overruled on other grounds by U.S. v. Keys, 95 F.3d 874 (9th Cir. 1995).
9th Circuit says that under old law, no hearing was required before extending probation. (560) Before 1984, no hearing was required before a district court could extend the probation. Effective October 12, 1987, 18 U.S.C. § 3564 now requires a hearing. However, in this case, defendant committed the underlying offenses in 1985, before the new law went into effect. Agreeing with four other circuits, the Ninth Circuit held that due process did not require the district court to hold a hearing before extending probation in this case because the underlying offense was committed before November 1, 1987. U.S. v. Silver, 83 F.3d 289 (9th Cir. 1996).
9th Circuit holds court cannot order repayment of attorney’s fees as a condition of probation. (560) In a 2-1 decision, the Ninth Circuit held that it is improper to order repayment of court-appointed attorney’s fees as a condition of probation, because it is not reasonably related “to the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” under 18 U.S.C. § 3553(a)(2)(A). The decision follows the Ninth Circuit’s recent ruling in U.S. v. Eyler, 67 F.3d 1386, 1393-94 (9th Cir. 1995), holding that it is improper to make repayment of attorneys fees a condition of supervised release. However, under 18 U.S.C. § 3006A, the court may order reimbursement of attorney’s fees if the defendant has the current ability to pay the fees. Judge Fernandez dissented. U.S. v. Lorenzini, 71 F.3d 1489 (9th Cir. 1995).
9th Circuit suggests probation cannot be conditioned on repayment of CJA attorneys fees. (560) In footnote 11, the Ninth Circuit notes that the Guidelines for the Administration of the Criminal Justice Act indicate that 18 U.S.C. § 3006A(f) “does not authorize a judicial officer to require reimbursement as a condition of probation, and the Judicial Conference believes that reimbursement of the cost of representation under the Act should not be made a condition of probation under any other authority.” U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995).
9th Circuit upholds probation condition barring juveniles’ possession of firearms until 21. (560) The 9th Circuit found the district court acted within its discretion in barring two Indian juveniles from possessing firearms until age 21 following their guilty pleas to misdemeanor assault. While under the influence of alcohol, they knocked an elderly woman to the floor, set her house afire and left her to burn to death. The probation condition was “just punishment,” deterred criminal conduct and protected the public under 18 U.S.C. § 3553(a)(2). Even if the juveniles’ participation in Indian tribal hunts was a First Amendment religious exercise, the condition could impinge on that right since it served the foregoing purposes. U.S. v. Juvenile # 1, 38 F.3d 470 (9th Cir. 1994).
9th Circuit says ban on probation applies despite substantial assistance motion. (560) A provision of 21 U.S.C. § 841(b)(1)(A) says, “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” The 9th Circuit held that this ban on probation applies even when the government makes a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In so holding, the court followed the Sixth and Seventh Circuits in U.S. v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 112 S.Ct. 171 (1991) and U.S. v. Snelling, 961 F.2d 93-96-97 (6th Cir. 1991). Thus, the district court properly ruled that it had no discretion to depart downward to probation in response to the government’s substantial assistance motion. U.S. v. Roth, 32 F.3d 437 (9th Cir. 1994).
9th Circuit authorizes 1-to-1 departure for time served on home detention. (560) At the original sentencing the district court departed downward to probation with 6 months home detention. The government appealed, and on remand, the court imposed the same sentence, giving as one of the reasons, that it would be “a travesty of justice” to put the defendant in prison after she had completed 6 months of home detention. The 9th Circuit agreed that this was a proper basis for departure, but remanded for an explanation of the extent of departure. The court noted that departing from defendant’s guideline sentence by exactly six months “would leave her with a lighter punishment than congress authorized, though not unacceptably lighter.” (Emphasis added). When home detention is an appropriate punishment . . . the Guidelines approve of crediting home detention time for prison time on a one-for-one basis.” See U.S.S.G. section 5C1.1(e)(3). Thus, on remanded, the district court “may depart downward by up to six months to take into account her home detention.” U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).
9th Circuit upholds revocation of both probation and supervised release for same act. (560) While on supervised release for a theft offense, defendant was sentenced to probation for escape and placed in a community treatment center. when he walked away from the community treatment center both his supervised release and his probation were revoked, and he was given consecutive sentences. The 9th Circuit rejected defendant’s argument that this constituted double jeopardy. Defendant “was not directly prosecuted for [the act of walking away] at all.” “Although the violating act underlying revocation was the same in both cases, the punishment was for the conduct underlying the original convictions. This does not violate double jeopardy.” U.S. v. Clark, 984 F.2d 319 (9th Cir. 1993).
9th Circuit holds that consecutive sentence on revocation of probation violated original plea agreement. (560) The plea agreement under Fed. R. Crim. P. 11(e) provided that the sentences on the two charges would run concurrently. Before the guidelines became effective, defendant was sentenced to six years for one conviction and consecutive probation for the other. After serving his sentence and being placed on probation, he violated probation and was sentenced to three years in prison. On appeal, the 9th Circuit held that the sentence of imprisonment for violation of probation was not permissible because it was consecutive to the other sentence, and therefore violated the original plea agreement. The court acknowledged that this meant that the order of probation had “almost no teeth.” “Nonetheless this was the bargain the government made and the court accepted and that now must be kept.” U.S. v. Norgaard, 959 F.2d 136 (9th Cir. 1992).
9th Circuit holds that a defendant may simultaneously be on parole and probation. (560) The judgment stated that probation would begin “upon defendant’s release from prison,” not on release from detention or custody. Thus, regardless of how one might characterize his status, once he was released he was no longer in prison. Therefore his probationary term began on the date of his parole. The 9th Circuit held that “a defendant may simultaneously be on parole and probation.” The court found nothing inherently inconsistant about the two custodial formats. “They constitute two separate punishments for two separate crimes.” U.S. v. Laughlin, 933 F.2d. 786 (9th Cir. 1991).
9th Circuit says probation guidelines are consistent with congressional intent. (560) Relying on prior cases, the 9th Circuit reiterated that the sentencing guidelines’ restriction on probation does not violate congressional intent. U.S. v. Mondello, 927 F.2d 1463 (9th Cir. 1991).
9th Circuit finds no error in failure to allow probationer to view his probation file. (560) Prior 9th Circuit precedent held “that failure to allow a probationer to view his probation file prior to a revocation hearing violates neither Fed. R. Crim. P. 32.1(a)(2)(B) nor due process if the government does not use it as evidence against the probationer.” In this case, the only records not made available were the probation officer’s notes reflecting office visits by the probationer. The government did not offer any evidence in its case in chief from these records. Defense counsel opened the inquiry and was furnished “candid unsurprising answers, none of which added to or detracted from the evidence that established the parole violations.” U.S. v. Donaghe, 924 F.2d 940 (9th Cir. 1991).
9th Circuit holds that limits on availability of probation do not violate the Congressional mandate. (560) Defendant argued that the Sentencing Commission ignored the legislative requirement for a separate type-of-sentence guideline; that is, a two stage inquiry which first asks whether a defendant should be imprisoned (or granted probation) and then asks how long imprisonment or probation should last. The 9th Circuit rejected this argument, holding that 28 U.S.C. sections 994(a)(1)(A)-(B) does not “mandate” a separate sentencing guideline for probation. Moreover Congress did not intend 18 U.S.C. § 3561 to require that probation be available to all categories of defendants. “Although the Commission certainly could have been more lenient in its treatment of the subject of probation it was not required to be so.” U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit upholds probation condition requiring defendant to surrender on Canadian charges. (560) As a condition of probation, the district court required the defendant to appear in Canada for the purpose of trial on charges filed against him in that country. The conduct subject to the Canadian prosecution would have been relevant to the determination of an appropriate sentence in this case. But by agreement of the parties and approval of the court, it was not considered because of the expectation that defendant would stand trial on those charges in Canada. Defendant argued that the condition amounted to a mandatory waiver of his right not to be extradited and contravened the accepted principle that one sovereign cannot enforce the criminal law of another. The 9th Circuit rejected these arguments, holding that the district court had the authority to condition probation on the compliance with any law, domestic or foreign. U.S. v. Polchlopek, 897 F.2d 997 (9th Cir. 1990).
9th Circuit holds guidelines’ restriction on probation does not violate due process. (560) Defendant argued that since 18 U.S.C. 3561 allows probation for all but Classes A and B felonies, the guidelines could not further restrict the judges or curtail the authority of the judges to individualize sentences. The 9th Circuit held that Congress had expressly authorized the Sentencing Commission to act in the area of probation. Moreover, Congress had the power to totally remove the district courts’ sentencing discretion, which is not constitutionally based. Since there is no constitutional right to probation, Congress can limit probation as it sees fit. Therefore, the guidelines, prepared under congressional authority, do not violate due process. U.S. v. Belgard, 894 F.2d 1092 (9th Cir. 1990).
10th Circuit upholds 240 hours of community service as condition of probation. (560) Defendant shared a joint bank account with a friend who died. The friend’s Social Security benefits were automatically deposited into the account for 20 years after the friend’s death. Defendant withdrew $130,557 in Social Security benefits intended for the friend. Defendant pled guilty to theft of public money. His guideline range was zero to six months, and he was sentenced to two years’ probation, conditioned on 240 hours of community service. Defendant contended that the imposition of so many hours of community service was procedurally and substantively unreasonable. The Tenth Circuit disagreed, finding the community service requirement reasonable. Defendant admitted stealing $130,557 in Social Security benefits from the federal government over a 23-year period. He was not punished with any imprisonment or fine. Although his wife paid full restitution, this was no more than a repayment of his ill-gotten gains, and it was not even his efforts that accomplished the repayment – the money came from his wife’s inheritance. The district court could properly decide that anything less than the community-service requirement would devalue the rule of law. U.S. v. Middagh, 594 F.3d 1291 (10th Cir. 2010).
10th Circuit refuses to deduct time spent in community confinement as condition of probation. (560) Defendant’s original guideline range was 4-10 months. The district court sentenced him to 3 years’ probation, with 4 months in home detention. This was later amended to provide for 4 months in a halfway house. The district court later revoked his probation and imposed a 9-month sentence. Defendant argued that the 4 months he served in community confinement should have been deducted from the 10-month maximum sentence for his original offense, leaving only 6 months that could be imposed on revocation of his probation. The Tenth Circuit held that the time spent in community confinement as a condition of probation was not “imprisonment.” Although it was clearly a “substitute” for imprisonment under § 5C1.1, this did not mean that it constituted imprisonment. Rather, it was properly viewed solely as a condition of probation. Judge McWilliams dissented. U.S. v. Horek, 137 F.3d 1226 (10th Cir. 1998).
10th Circuit holds that zero months imprisonment may be imposed where statute prohibits a term of probation. (560) Defendant pled guilty to misapplying funds of a FDIC-insured bank, in violation of 18 U.S.C. section 656. This was a Class B felony, and under section 3561(a)(1), Class B felons may not be sentenced to a term of probation. Defendant had a guideline range of zero to six months. The district court, believing that section 3561(a)(1) required a term of imprisonment, sentenced defendant to 30 days in a halfway house and a three year term of supervised release. The 10th Circuit remanded for resentencing, since the district court erroneously believed that a term of imprisonment was required. A sentence of zero months imprisonment is not literally a sentence of probation. Section 656, under which defendant was convicted, gives the court the option of imposing a fine or imprisonment or both. If section 3561(a)(1) were read as requiring a term of imprisonment, it would conflict with section 656, which clearly grants the option of no imprisonment. In such a case, the more specific statutory provision is controlling. U.S. v. Elliott, 971 F.2d 620 (10th Cir. 1992).
11th Circuit upholds imposition of supervised release as part of sentence following probation revocation. (560) For his drug convictions, defendant was sentenced to five years’ probation. The court later revoked his probation, and imposed a sentence of four months’ imprisonment to be followed by a three-year term of supervised release. Defendant argued that the district court erred in concluding that it was required to impose a term of supervised release in addition to a sentence of imprisonment for a probation violation. The Eleventh Circuit held that defendant could not show that the district court imposed supervised release in violation of law. Although there was nothing in 18 U.S.C. § 3583(a) which required the imposition of supervised release in addition to a term of imprisonment, there was nothing in the statute which stated that the court could not impose supervised release upon revocation of probation. U.S. v. Mitsven, 452 F.3d 1264 (11th Cir. 2006).
11th Circuit holds sentencing court’s refusal to grant term of probation was not error. (560) Defendant argued that the district court should have imposed probation rather than an 18 month sentence. The Eleventh Circuit affirmed the sentence, holding that it was within the district court’s discretion to deny probation, considering that it had already granted the defendant a substantial reduction based upon his minor role and his substantial assistance to the authorities. 18 U.S.C. § 3742(a) provides several grounds for appeal of a sentence, but the fact that a favorable departure should have been more favorable is not one of them. U.S. v. Erves, 880 F.2d 376 (11th Cir. 1989).
D.C. District Court imposes no imprisonment but departs upward in probation term for mentally ill defendant. (560) Defendant was diagnosed as mentally ill but competent to stand trial. The D.C. District Court found that in a supervised environment defendant accepted medication, which regularized his behavior. Without such medication, defendant would quickly revert to his “irresponsible state in which he engaged in criminal conduct and became a danger to his family and to the community.” The guidelines left imprisonment to the sentencing court’s discretion and mandated a one- to three-year term of probation. The court found that incarceration was not indicated as long as defendant continued to accept his medication, but departed upward and sentenced defendant to five years’ probation. It found the departure was justified by concern for the safety of defendant’s family and the community if his medication and treatment were not supervised by the probation officer for as long as possible. U.S. v. Coleman, 762 F.Supp. 1513 (D.D.C. 1991).
D.C. Circuit rejects defendant’s argument that probation guidelines violate the statutory mandate. (560) Defendant argued that the commission was directed to establish a separate set of guidelines for determining how much of each type of punishment to impose. Defendant also argued that the commission was required to establish guidelines reflecting the general appropriateness of imposing a sentence other than imprisonment on first offenders. Finally, defendant argued that 18 U.S.C. § 3553(a)(4), required that sentencing judges make “probation versus incarceration” determinations independent of their decisions about how much probation or incarceration to impose. The D.C. Circuit rejected each of these arguments in turn, holding that the guidelines’ limitations on the availability of probation are not inconsistent with the enabling legislation. U.S. v. Ortez, 902 F.2d 61 (D.C. Cir. 1990).
California District Court rules restrictions on probation are not inconsistent with the goals of the Sentencing Reform Act. (560) Because the Commission was not required to follow a “least restrictive alternative to sentencing approach”, it was not inappropriate for the commission to reduce the use of probation. Congress clearly contemplated that probation would be a viable sentencing alternative, and the guidelines provide for probation in certain circumstances. U.S. v. Myers, 687 F.Supp. 1403 (N.D.Cal. 1988).
Arizona District Court rules the guidelines do not unduly restrict the availability of probation as a sentencing alternative. (560) The guidelines do not violate the Due Process clause because they do not unduly restrict the availability of probation; nor do they conflict with the intent of Congress by permitting a sentence to be increased based upon the defendant’s criminal history. U.S. v. Macias-Pedroza, 694 F.Supp. 1406 (D.Ariz. 1988).
Commission authorizes limiting use of computer as condition of probation or supervised release. (560) In response to a circuit conflict, the Commission added a condition to § 5B1.3 and 5D1.3 permitting the court to limit the use of a computer or an interactive computer service where the defendant used such items in committing sex offenses. The circuit courts have disagreed about the propriety of imposing restrictions on computer use and internet access in such cases. Amendment 664, effective November 1, 2004.
Commission requires DNA samples where required by statute. (560) The Commission amended §§ 5B1.3 and 5D1.3 to require the defendant to provide a DNA sample as a condition of probation or supervised release, whenever required by statute (e.g., murder, kidnapping). Amendment 644, effective November 1, 2002.
Commission permits deportation as a condition of probation. (560) In its 1998 proposed amendments, the Sentencing Commission amended § 5B1.3 to include deportation as a condition of probation. This was in response to the illegal Immigration Reform and Immigrant Responsibility Act of 1996, which amended 18 U.S.C. § 3563(b) to add a new discretionary condition of probation with respect to deportation. Amendment 584, effective November 1, 1998.
Commission revises conditions of probation and supervised release. (560) To reflect new required conditions of probation and supervised release required by Section 203 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1227, and other laws, the Commission revised the guideline provisions on conditions of probation and supervised release. In addition, the amendment revises §§ 5B1.3, 5B1.4, 5D1.3, and 8B1.1 to better distinguish among the statutorily required, standard, and special conditions of probation and supervised release. Amendment 569, effective November 1, 1997.
Article summarizes exclusionary rule in probation and parole revocation proceedings. (560) Craig Hemmens, assistant professor at Boise State University and Rolando V. Del Carmen, professor at Sam Houston State University collect and analyze the state and federal case law regarding the admissibility of illegally obtained evidence in probation and parole revocation hearings. According to the article, nineteen states have held that the exclusionary rule does not apply at all, while fourteen others hold that it only applies in certain circumstances such as where the officer is aware that the suspect is on probation or parole. On the other hand, five states apply the exclusionary rule and exclude the evidence. The case law is unsettled in ten additional states. Of the federal circuits, only the Fourth Circuit has held that the exclusionary rule applies. However, five circuits have applied the exclusionary rule if the officer is aware the suspect is on probation or parole or the search is for the express purpose of finding cause to revoke probation or parole. The decisions holding that the exclusionary rule applies will have to be reconsidered in light of the Supreme Court’s ruling in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998) that the federal exclusionary rule does not apply to probation and parole hearings. Craig Hemmens and Rolando V. Del Carmen, The Exclusionary Rule in Probation and Parole Revocation Proceedings: Does It Apply? 61 Federal Probation, 32 (Sept. 1997).
Article authoritatively discusses law and cases on probation and supervised release. (560) Catherine Goodwin, Assistant General Counsel of the Administrative Office of the Courts, comprehensively discusses the statutes and caselaw regarding imposition, tolling and revocation of probation and supervised release. The article is intended as a reference for probation officers, and includes an excellent bibliography of articles and memoranda. This comprehensive discussion of the numerous issues that arise regarding probation and supervised release is illuminating and cogent, and the author points out areas of the law that are presently unresolved. Catherine Goodwin, Legal Developments in the Imposition, Tolling, and Revocation of Supervision, 61 Fed. Probation 76-85 (Dec. 1997).