U.S. v. Brown, 00-1046

• Decision Date: 04 December 2000
• Docket Number: No. 00-1046,00-1046
• Citation: 235 F.3d 2
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. JOHN O. BROWN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 2

235 F.3d 2 (1st Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. JOHN O. BROWN, Defendant, Appellant.

No. 00-1046.

United States Court of Appeals, For the First Circuit.

Heard Dec. 4, 2000.

Decided December 18, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.

Leslie Feldman-Rumpler, by appointment of the court, for appellant.

Peter E. Papps, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief, for appellee.

Before Selya and Stahl, Circuit Judges, and Lisi,^* District Judge.

SELYA, Circuit Judge.

A federal grand jury charged defendant-appellant John O. Brown with distributing cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1). The appellant pleaded guilty to both counts of the indictment. The district court thereafter sentenced him to a twenty-four month incarcerative term, followed by a five-year period of supervised release. The court ordered several conditions of supervision. These strictures required the appellant, inter alia, to enter a drug-and-alcohol-addiction treatment program and to "abstain from the use of alcoholic beverages and/or all other intoxicants during and after the course of treatment." Although the court afforded both the government and the appellant an opportunity to protest these conditions, neither party objected.

In this forum, the appellant sings a different tune. His appellate counsel argues that the imposition of the special condition directing the appellant to refrain from the consumption of alcoholic beverages throughout the supervised release period (the "stay dry" condition) constitutes a departure from the sentencing guidelines and must be vacated because the court did not give adequate advance notice of its intention so to depart. Alternatively, counsel argues that this special condition bears no reasonable relationship to the crime that the appellant committed and thus imposes a greater deprivation of his liberty than is necessary or permissible. After a methodical review of the record, we reject these afterthought assertions.

We begin with the standard of review. Typically, the court of appeals reviews a district court's imposition of a special condition of probation or supervised release for abuse of discretion. United States v. Phaneuf, 91 F.3d 255, 262 (1st Cir. 1996). That standard shifts, however, when the sentencing court affords the defendant an opportunity to object to the condition but the defendant holds his tongue. In that event, appellate review is for plain error. Id. So too when the nisiprius court manifests an intention to depart from the sentencing guidelines and the defendant fails to remark the absence of advance notice. United States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997).

The more deferential standard obtains here. Despite ample opportunity, the appellant interposed no objection below either to the special "stay dry" condition of supervised release or to any ostensible lack of notice in connection with its imposition. Consequently, our review is for plain error. Fed. R. Crim. P. 52(b). As we have said, "[t]he plain error hurdle is high." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Under that standard, we may set aside the challenged portion of the instant sentence if, and only if, the appellant succeeds in showing "an obvious and clear error under current law that affected his substantial rights." Phaneuf, 91 F.3d at 263. Even then, we may decline to correct an error that does not "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 736 (1993) (citations and internal quotation marks omitted). With this frame of reference, we turn to the appellant's particularized claims of error.

The appellant's contention that he did not receive adequate advance notice of the sentencing court's intention to impose the "stay dry" condition deserves short shrift. This contention derives from Burns v. United States, 501 U.S. 129 (1991), in which the Supreme Court held that a district court, acting sua sponte, may not upwardly depart from the guideline sentencing range without first notifying the defendant of its intention to do so and "specifically identify[ing] the ground on which the district court is contemplating an upward departure." Id. at 138-39. But Burns dealt with departures from the guidelines -- sentences that, virtually by definition, deviate from those typically imposed on similar offenders for similar offenses. See United States v. Harotunian, 920 F.2d 1040, 1042-43 (1st Cir. 1990) (defining a departure as a sentence outside the guideline sentencing range); Bruce M. Selya & Matthew Kipp, An Examination of Emerging Departure Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 9-13 (1991) (describing role of departures under sentencing guidelines). Here, however, the appellant's guideline sentencing range included a term of supervised release. See USSG §5D1.1. A supervised release term is an integral part of a sentence, separate from and in addition to immurement. Seeid. §7A2(b). But supervision has meaning only to the extent that the conditions of the defendant's release are clearly established. Thus, the guidelines contemplate (and give the appellant constructive notice) that the sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender. United States v. Amer, 110 F.3d 873, 883 (2d Cir. 1997). Consequently, a defendant rarely, if ever, will be able to claim unfair surprise when the sentencing court establishes the conditions of supervised release.

This case is archetypical. A standard condition of supervised release prohibits excessive drinking. USSG §5D1.3(c)(7). The sentencing court's crafting of the "stay dry" condition merely amplified this standard condition. Under those circumstances, we do not believe that the imposition of the "stay dry" condition plausibly can be considered a "departure" as that term is used in the lexicon of the sentencing guidelines. Thus, Burns is inapposite here.

The appellant nonetheless insists that we should create a Burns-type model for supervised release conditions. He supports this argument by embracing decisions that have analogized to Burns in requiring notice to a defendant that the court is contemplating a sentence that will include compulsory registration as a sex offender. E.g., United States v. Bartsma, 198 F.3d 1191, 1199-1200 (10th Cir. 1999); United States v. Coenen, 135 F.3d 938, 943 (5th Cir. 1998). But requiring registration as a sex offender is different, in type and kind, from any of the ususal conditions attached to supervised release. Registration is less concerned with regulation or monitoring of an individual's ongoing behavior than with notice to the community at large of the individual's status and proclivities. Because that highly idiosyncratic requirement differs so widely from the imposition of a "stay dry" condition, we reject the appellant's proffered analogy.

Putting Bartsma and Coenen to one side -- we take no view of the correctness vel non of those decisions -- we think it is fair to say that appellate tribunals have been reluctant to impose Burns-like obligations on sentencing courts in respect to special conditions of probation or supervised release. E.g., United States v. Warren, 186 F.3d 358, 366 n.5 (3d Cir. 1999) (declining to extend Burns rationale to cover imposition of condition restricting travel outside of the United States); United States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992) (holding that an "occupational restriction . . . is not an 'upward departure' because it falls within the range of sentencing conditions available . . . under the Guidelines"). We share this reluctance. We hold, therefore, that where, as in this case, a special condition of probation or supervised release falls within the general range of sentencing options made available under the guidelines, a defendant is not entitled to advance notice of the sentencing court's intention to impose that condition.

This leaves the appellant's alternate argument: that the facts of this case do not warrant the imposition of a "stay dry" condition. In assessing that asseveration, it must be borne in mind that the purpose of a supervised release term is "to ease a prisoner's return to civilian life." United States v. Joseph, 109 F.3d 34, 36 (1st Cir. 1997). To accomplish this without placing the public at undue risk, Congress compiled a list of factors that bear upon the fashioning of supervised release conditions. See 18 U.S.C. § 3563(b) (incorporated by reference in 18 U.S.C. § 3563(d)). This statutory scheme requires the sentencing court to consider, inter alia, "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. § 3553(a)(1). It also directs the court to consider what may be necessary "to provide the defendant with needed . . . correctional treatment." Id. § 3553(a)(2)(D).

The sentencing guidelines -- we refer to the 1998 edition, with amendments which took effect prior to the date of sentencing (December 21, 1999), see Harotunian, 920 F.2d at 1041-42 -- amplify this basic structure. They provide for four general classes of conditions in respect to supervised release. See USSG §5D1.3. The first class comprises certain mandatory conditions that must be imposed. Id. §5D1.3(a)(1)-(7). The second class comprises certain standard conditions that a sentencing court ordinarily will want to impose. Id. §5D1.3(c)(1)-(15). The third class comprises "special conditions" which the court is authorized to impose under certain circumstances and on a case-by-case basis. Id. § 5D1.3(d), (e). The fourth class is more open-ended: the guidelines provide the sentencing court with discretion to:

impose other conditions...