U.S. v. Mills, 91-1841
| Decision Date | 14 April 1992 |
| Docket Number | No. 91-1841,91-1841 |
| Citation | 959 F.2d 516 |
| Parties | UNITED STATES of AMERICA, Plaintiff-Appellee, v. Gary Thomas MILLS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Smith & Douglass, Wichita Falls, Tex., Gary Cohen, Austin, Tex., and William T. Habern, Riverside, Tex., for Gary T. Mills.
Richard Roper, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before JOLLY, and HIGGINBOTHAM, Circuit Judges, and WILLIAMS, District Judge. 1
Defendant-Appellant Gary Mills appeals the imposition of that portion of his criminal sentence which forbids him to work in the car sales business during his period of supervised release. The sentence was imposed after he pled guilty to the charges of mail fraud and altering odometers on cars sold from his GM dealership. We reject Appellant's contention that the occupational restriction is tantamount to an upward departure from the Federal Sentencing Guidelines, and, therefore, affirm the lower court's sentence in part. We reverse, however, that portion of the sentence which requires Appellant to close and sell his business because it exceeds the minimum sentence reasonably necessary to protect the public.
Gary Mills is a used car salesman who pled guilty to turning back odometers on twelve cars he sold over a two-year period in violation of 15 U.S.C. §§ 1984 & 1990c. He also pled guilty to mail fraud for reporting false sales prices to the state of Texas for sales tax purposes in violation of 18 U.S.C. § 1341. Appellant's conduct was evaluated at the offense level of nine (9), and his criminal history category level was one (I). The range of imprisonment required by the Guidelines at these levels is from four to ten months. The district judge sentenced Mills to seven months in jail, imposed a $10,000 fine, and ordered a three-year term of supervised release. All aspects of the judgment were well within the ranges specified in the guidelines. The district judge also imposed the following That defendant shall not own or operate a new or used car business during the term of supervised release. Defendant shall seek employment in an occupation other than automobile sales and shall not accept any employment without approval of the probation officer. Defendant shall close his current business, GM Motor Company, located in Wichita Falls, Texas, within 60 days of the entry of this order.
occupational restriction on the supervised release:
The district court imposed the sentence without entering findings of fact or issuing an opinion in support of the judgment. Mills timely filed a notice of appeal. On Mills' motion, this Court stayed, pending appeal, that portion of the judgment requiring Mills to close his GM Motor Company dealership. U.S. v. Mills, No. 91-1841 (5th Cir. Aug. 28, 1991).
Mills argues on appeal that imposing the occupational restriction constituted an upward departure from the Guidelines, and that he was therefore entitled to notice of this departure before his sentencing hearing. The presentence report did not indicate that Mills might be precluded from working in the car business for a period after his release from prison.
Mills also argues that the restriction itself is an abuse of discretion because it is not needed to protect the public from continuing acts of unlawful conduct.
The United States Supreme Court recently addressed the issue of sentencing departures in Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). In Burns, the Supreme Court held that a sentencing court may not depart upward from the Guidelines range without first notifying the parties. Id. 111 S.Ct. at 2187. The Court observed that Federal Rule of Criminal Procedure 32 guarantees the parties "an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence." Id. 111 S.Ct. at 2186. The Court reasoned that the right to comment would be worthless without the right to advance notice that the Court intended to make a departure.
Under the Guidelines, a sentencing court has discretion to order a term of supervised release in cases involving imprisonment for a term of one year or less even when no statute requires such supervised release. § 5D1.1. Supervised release may be imposed in order to facilitate the defendant's re-integration into the community, to enforce a fine or restitution order, or to fulfill any other purpose authorized by statute. See, Commentary to § 5D1.1.
As a "special" condition of supervised release, the Guidelines authorize the sentencing court to impose an occupational restriction at its discretion. §§ 5F1.5 & 5B1.4(b)(22), 18 U.S.C. § 3563(b). Section 5F1.5 provides as follows:
Occupational Restriction
(a) The court may impose a condition of probation or supervised release prohibiting the defendant from engaging in a specified occupation, business, or profession, or limiting the terms on which the defendant may do so, only if it determines that:
(1) a reasonably direct relationship existed between the defendant's occupation, business, or profession and the conduct relevant to the offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.
(b) If the court decides to impose a condition of probation or supervised release restricting a defendant's engagement in a specified occupation, business, or profession, the court shall impose the condition for the minimum time and to the minimum extent necessary to protect the public.
Federal Sentencing Guidelines, § 5F1.5.
The occupational restriction imposed upon Mills in this case is not an "upward departure" because it falls within the range of sentencing conditions available to the court under the Guidelines. In contrast, Burns and the other cases cited by the government involved situations in which the courts imposed a term of confinement exceeding the maximum range set forth in the Guidelines' sentencing table. In our case, however, Appellant received only the mid-range confinement of seven months. The occupational restrictions were simply an exercise of the district judge's authorized discretion to impose additional terms of probation or supervised release. We do not believe it to be in the interest of justice or the efficient administration of the sentencing process to extend the notice requirements of Burns to cases where the defendant's term of confinement is not at stake. Requiring trial judges to give prior notice of their intent to impose an occupational restriction would only further encumber the lengthy sentencing process without adding anything to defendants' existing procedural protections.
One purpose of a sentencing hearing is to afford the defendant an opportunity to exercise his right of allocution. Fed.R.Crim.P. 32(a)(1)(C). After hearing from the defendant, the witnesses, and counsel for both sides, the judge announces the sentence he intends to impose. Generally, after the sentence is announced, counsel are given an opportunity to make further comment. It is impractical to require a sentencing judge to give detailed notice of an intended sentence before the above-described process is completed. Moreover, it is wasteful to permit an appeal at that stage of the proceeding solely because such notice was not given. If either side is dissatisfied with the proposed sentence, counsel can request a continuance for further preparation. If that motion is denied, counsel can move for reconsideration or modification after the sentence is imposed, 28 U.S.C. § 2255, and failing success at the district court level, can appeal. Fed.R.App.P. 4(b).
Section 5D1.3 of the Guidelines gives a sentencing court broad discretion to impose conditions on supervised release if they are reasonably related to (1) the nature and circumstances of the offense, (2) the need for adequate deterrence of further criminal conduct, and ...
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