U.S.A. v. Monteiro

• Decision Date: 26 October 2001
• Docket Number: No. 01-1564,01-1564
• Citation: 270 F.3d 465
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOEL C. MONTEIRO, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 465

270 F.3d 465 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOEL C. MONTEIRO, Defendant-Appellant.

No. 01-1564

United States Court of Appeals For the Seventh Circuit

Argued September 20, 2001

Decided October 26, 2001

Appeal from the United States District Court for the Central District of Illinois. No. 00 CR 20042--Michael P. McCuskey, Judge.

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Joel Monteiro pleaded guilty to one count of access device fraud. As a special condition of his supervised release following a term of imprisonment, the district court ordered that Mr. Monteiro's person and property be subject to unlimited, warrantless search and seizure by any law enforcement officer. Mr. Monteiro objected to the condition, but the district court overruled his objection. Mr. Monteiro now appeals the imposition of the special condition. For the reasons set forth in the following opinion, we vacate the imposition of the special condition of supervised release and remand the matter to the district court for reconsideration.

I BACKGROUND

A. Facts

In October 1998, the Champaign, Illinois, Police Department learned that fraudulently obtained merchandise was being delivered to Mr. Monteiro's address at 1506 Holly Hill Drive in Champaign, Illinois. That same month, Adam J. Greene of Atlanta, Georgia, contacted the Champaign Police Department to report that someone residing at the Holly Hill Drive address had used his name and social security number to obtain credit and purchase merchandise. A subsequent investigation by Champaign police confirmed that Mr. Monteiro had used Greene's name and personal identifiers to establish a credit account at Spiegel and that Mr. Monteiro had purchased several articles of clothing on the account totaling $874.81. These purchases had been delivered to the Holly Hill Drive address.

The investigation also revealed that Mr. Monteiro had used the name of "David J. Walker" to establish another credit account with Spiegel and that, in December 1998, he had purchased bed linens and a stereo system totaling $1,008.72. These items also had been delivered to his address. On November 25, 1998, Mr. Monteiro again used the name of "David J. Walker" to purchase a $270 facsimile and telephone system from Ameritech. Mr. Monteiro signed the name "Steele" when he accepted delivery of the package at his Holly Hill Drive address. In December 1998, Mr. Monteiro used the Walker identity to purchase two computers, together worth $3,255.47, on credit from Sears. The computers were delivered to his Holly Hill Drive address.

Officers executed a search warrant at Mr. Monteiro's home on Holly Hill Drive on January 26, 1999. Officers seized, along with some of the merchandise Mr. Monteiro had purchased, several credit card statements, telephone bills and utility bills, indicating that Mr. Monteiro had obtained goods and services under various assumed names. Specifically, officers seized a Discover credit card bill in the name of Brian R. Miller for $7,129.06; it was addressed to Mr. Monteiro's Holly Hill Drive residence. Officers also seized a bill from DaMark International in the amount of $1,439.91 addressed to Greg Steele at 1506 Holly Hill Drive. They also seized an Ameritech bill in the amount of $2,030.41 addressed to David J. Walker doing business as "Commonwealth Electric," a fictitious company, at the same address. Finally, they seized several telephone bills for "Commonwealth Electric," Adam J. Greene, David Walker, and "Jamison Scott," the last from MCI Worldcom in the amount of $1,836.45. All the bills were addressed to 1506 Holly Hill Drive.

B. District Court Proceedings

Mr. Monteiro was indicted on four counts of mail fraud in violation of 18 U.S.C. § 1341 and one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2) and (c)(1)(b).¹ Pursuant to a plea bargain, Mr. Monteiro pleaded guilty to the one count of access device fraud on November 2, 2000.

On February 23, 2001, the district court sentenced Mr. Monteiro to 33 months' imprisonment, ordered him to pay $13,388.16 in restitution, and ordered him to serve a three-year term of supervised release after his prison term. As a special condition of the supervised release, the district court ordered that Mr. Monteiro's "person, residence, and vehicle shall be subject to search and seizure upon demand of any law enforcement officer." R.24 at 39. Mr. Monteiro objected to the condition, but the district court overruled his objection, explaining:

I just think in this gentleman's condition, everything he has done for the last 11 years has been a fraud. Every identification has been a fraud. Every-- he's always in possession of improper identification, and . . . I think the exceptional conditions of this defendant require exceptional vigilance--diligence and vigilance on the part of all law enforcement individuals to compel him to honestly represent who he is.

Id. at 43.

II DISCUSSION

A special condition of supervised release must relate reasonably to several sentencing goals, including the rehabilitation of the defendant and the protection of the public. See 18 U.S.C. §§ 3583(d)(1), 3553(a)(2)(B), (a)(2)(C). Mr. Monteiro submits that the special condition allowing a warrantless search of his person and his property at any time does not relate sufficiently to the goals of rehabilitation and protection and would expose him to possible harassment and abuse from law enforcement. Indeed, he notes that the conduct that gave rise to the present case did not entail his possession of false identification, but rather his use of other individuals' names and personal identifiers, such as their social security numbers, to obtain credit and make purchases over the telephone. Mr. Monteiro relies upon United States v. Bass, 121 F.3d 1218 (8th Cir. 1997), and United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992). In these cases, the Eighth Circuit held that a special condition allowing warrantless searches of individuals on supervised release for the presence of alcohol or drugs could not stand because the condition was not related to the goals of rehabilitation and protection; the evidence did not show that the defendants had significant problems with drugs or alcohol. See Bass, 121 F.3d at 1224; Prendergast, 979 F.2d at 1293.

1.

We begin our assessment of Mr. Monteiro's contention by reviewing the statutory scheme that governs supervised release. Title 18, section 3583 permits a sentencing court to include a term of supervised release. See 18 U.S.C. § 3583(a). The United States Sentencing Guidelines require that a term of supervised release be imposed whenever a sentence of more that a year's imprisonment is imposed or when supervised release is required by statute. The Guidelines also make clear that a term of supervised release may be imposed in any other case in which a term of imprisonment is imposed. See U.S.S.G. § 5D1.1.

In imposing a term of supervised release, the district court may include, in addition to the mandatory conditions set forth in 18 U.S.C. § 3583(d), certain additional conditions of supervised release set forth in § 3563(b) and any other condition that the district court deems appropriate, even if that condition is not set forth explicitly in the statute. See 18 U.S.C. §§ 3563(b), 3583(d). In imposing such conditions, the district court must take care to ensure that the particular condition imposed

(1) is reasonably related to specified sentencing factors, namely the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) is reasonably related to the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) involves no greater deprivation of liberty than is reasonably necessary to achieve these goals; and

(4) is consistent with any pertinent policy statements issued by the Sentencing Commission.

United States v. Schave, 186 F.3d 839, 841 (7th Cir. 1999); see 18 U.S.C. §§ 3583(d), 3553(a)(1), (a)(2)(B)- (D); U.S.S.G. § 5D1.3(b).

The Sentencing Commission, interpreting this statutory mandate, has required explicitly that any such special condition be "reasonably related to . . . the nature and circumstances of the offense and the history and characteristics of the defendant; [and to] the need . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . ." U.S.S.G. § 5D1.3(b).

The task of shaping the conditions of supervised release to achieve these statutorily mandated goals is committed to the sound discretion of the district court. Consequently, we review a district court's decision to impose a special condition of supervised release for an abuse of discretion. See Schave, 186 F.3d at 841; United States v. Brown, 136 F.3d 1176, 1186 (7th Cir. 1998); United States v. Schechter, 13 F.3d 1117, 1118 (7th Cir. 1994).

2.

In imposing the special condition in the case before us, the district court explained that Mr. Monteiro's history of fraudulent endeavors demonstrated the need for "exceptional vigilance" on the part of law enforcement officials to discourage recidivism. See R.24 at 43. A review of the record makes clear that the district court was on solid ground in concluding that Mr. Monteiro had a significant problem with identity fraud. The presentence investigation report, which is replete with acts of fraud by Mr. Monteiro dating back to his childhood, reveals that Mr. Monteiro has lead a life of fraud and deceit and regularly misrepresents his true identity.² He repeatedly has given false names...