U.S. v. Voda

• Decision Date: 16 June 1993
• Docket Number: No. 93-1166,93-1166
• Citation: 994 F.2d 149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald L. VODA, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 149

994 F.2d 149

UNITED STATES of America, Plaintiff-Appellee, v. Ronald L. VODA, Sr., Defendant-Appellant.

No. 93-1166.

United States Court of Appeals, Fifth Circuit.

June 16, 1993.

Franklyn R. Mickelsen, Jr., Clinton Broden, Asst. Federal Public Defenders, Ira Kirkendoll, Federal Public Defender, Dallas, TX, for defendant-appellant.

William B. Lazarus, John A. Bryson, Attys., Dept. of Justice, Environmental Div., Appellate Section, Washington, DC, Richard H. Stephens, U.S. Atty., Floyd Clardy, Asst. U.S. Atty., Dallas, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant, Ronald Voda, Sr. (Voda), was sentenced to a term of 5 years' probation and a $3,000 fine, payable $60 a month, on his conviction, pursuant to his guilty plea, of one count of negligent discharge of a pollutant through a point source into navigable water in violation of a federal permit, contrary to 33 U.S.C. § 1319(c)(1)(A), a misdemeanor. Voda appeals, challenging only certain aspects of his sentence, namely the fine and the following two conditions of his probation, viz: (1) that he surrender to the Mansfield Law Enforcement Center (Mansfield) on June 2, 1993, to serve sixty calendar days; and, (2) that he not possess a firearm during the probation. Concluding that the district court erred in imposing these two conditions, we vacate Voda's sentence and remand for resentencing.

Facts and Proceedings Below

Voda owned and operated Voda Petroleum, now defunct, an oil recycling facility in White Oak, Texas. On February 10, 1989, special agents of the Environmental Protection Agency (EPA) sampled effluent discharging from Voda's plant. Test results on three of the four samples taken revealed that more oil and grease discharged into the water system than Voda's federal permit allowed. Based on these test results, Voda pleaded guilty to one count of negligent discharge of a pollutant.

The Presentence Investigation Report (PSR) reflects that Voda has no prior conviction and that Voda and his wife have a negative net worth of $19,555.97 and a negative monthly cash flow of $503.75. The PSR does not indicate that Voda has any prospects for increasing his cash flow or net worth over the next several years in his job as a high school chemistry teacher. ¹ The United States did not challenge the PSR's recitations concerning Voda's financial condition.

The PSR does not indicate that Voda had any history involving or being prone to violence or misuse of firearms. Voda likes to hunt and owns several firearms that he uses for recreational hunting.

As a result of Voda's guilty plea, he was sentenced to a $3,000 fine and 5 years' probation subject to numerous conditions. Four of the conditions are: (1) that Voda surrender to Mansfield on June 2, 1993, to serve 60 calendar days; (2) that he reside at the County Rehabilitation Center, 313 Ferrell Place, Tyler, Texas, for a period of 120 days; (3) that he shall not possess a firearm during his probation; and (4) that he pay the $3,000 fine at a rate of $60 per month beginning 60 days after his release from Mansfield. Mansfield is a local jail housing, among others, offenders awaiting trial on a range of offenses including violent felonies.

After the sentence was imposed, Voda filed a Motion to Correct Sentence pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 35(c), which was denied. Voda appeals challenging the fine, the designation of Mansfield as the place to serve the sixty days, and prohibition of firearms possession.

Discussion

I. Designating Place of Confinement

Voda contends that, under 18 U.S.C. § 3563(b)(11), the district court lacked the authority to designate the place of his confinement because the statute requires that the Bureau of Prisons designate the place of confinement once the district court imposes sentence for a specified period of time. ² Thus, Voda contends that the district court erred in sentencing him to serve time at Mansfield. ³

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 during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation." 18 U.S.C. § 3563(b)(11) (West Supp.1993). See U.S.S.G. § 5C1.1(c)(3). The statute's plain language suggests that only the Bureau of Prisons may determine the place of confinement for sentences imposed under it.

No prior cases have addressed whether a sentencing judge may, as a condition of probation, designate the place of confinement for sentences imposed under section 3563(b)(11). However, many cases have addressed the authority of a judge to specify the place of incarceration where the sentence calls for imprisonment as opposed to probation under 18 U.S.C. § 3621. ⁴ These cases hold that a court may recommend that a sentence imposed under section 3621 be served in a particular prison or jail, but that only the Bureau of Prisons has the actual authority to designate the place of incarceration. United States v. Jalili, 925 F.2d 889, 894 (6th Cir.1991) (citing United States v. Dragna, 746 F.2d 457, 458 (9th Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985)) ((Dragna) interpreted 18 U.S.C. § 4082(a), which was replaced by section 3621, which Jalili addressed). See generally, United States v. Wilson, --- U.S. ----, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). The Bureau of Prisons is given this responsibility because the executive branch and not the judicial branch is responsible for administering sentences. Id.

In other cases, courts rejected prisoners' requests to be sentenced to particular jails, holding that only the Bureau of Prisons has that authority. See, e.g., Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (rejecting prisoner's section 1983 action challenging decision of Bureau of Prisons to transfer prisoner to new jail); Barden v. Keohane, 921 F.2d 476, 479-83 (3d Cir.1990). It is clear that the district court lacked the authority to designate the place of confinement in sentencing Voda under section 3563(b)(11).

The United States argues that even if the district court lacked the authority to designate the place of incarceration under 3563(b)(11), the designation of Mansfield was permitted under section 3563(b)(12), which, it asserts, allows a district court to designate the community corrections facility at which one is required to reside. ⁵ Section 3563(b)(12) provides that as a condition of probation a convict may be required to "reside at, or participate in the program of, a community corrections facility (including a facility maintained or under contract to the Bureau of Prisons) for all or part of the term of probation." 18 U.S.C. § 3563(b)(12) (West Supp.1993) (emphasis added).

Assuming that a district court may designate the place of confinement when imposing sentences under section 3563(b)(12), nevertheless a community corrections facility is not a jail and the Mansfield Corrections Facility is a jail, not a community corrections facility. ⁶ Although the term "community corrections facility" is not defined by the statute, ⁷ the notes to United States Sentencing Guideline (U.S.S.G. or Guideline) section 5F1.1 define "community confinement" as "residence in a community treatment center, halfway house, restitution center, mental health facility...." The term "community confinement" in the Guidelines is evidently intended to interpret section 12, as reflected by its use in U.S.S.G. § 5C1.1(c)(3). Also, based on its placement in section 3563(b), "community corrections facility" appears to refer to rehabilitation facilities and half-way houses (such as the County Rehabilitation Center where Voda is required to reside after his confinement at Mansfield) and not jails. Section 12 follows section 11 on confinement with the Bureau of Prisons and is contained in a section dealing with conditions of probation, not conditions of imprisonment. Normally, conditions of probation are intended to be less restrictive than imprisonment. ⁸ Thus, the term community corrections facility does not refer to jails.

Because section 3563(b)(11) specifically states that the condition of probation is that one "remain in the custody of the Bureau of Prisons" and because Mansfield is a jail and not a community corrections facility, the district court erred in requiring that Voda's sixty days' confinement be served at Mansfield. On remand, the district court may require Voda to serve a period of confinement under the custody of the Bureau of Prisons with a recommendation as to the place of confinement, may require him to serve at a community corrections facility and perhaps designate the place of such confinement, or may remove this condition of probation altogether.

II. Firearm Prohibition

Next, Voda objects to the condition that prohibits him from possessing a firearm during his probation. No reason was given by the district court for imposing this condition, nor is any suggested by the PSR or anything else in the record. The United States argues that the firearm prohibition is warranted because Voda's possession of a firearm may pose a risk to his probation officer's safety, because Voda committed a serious offense, and because this type of decision should be left to the discretion of the district court.

Prohibition of firearm possession is one of the permissible discretionary conditions of probation expressly listed in section 3563(b). Id. (9). However, section 3563(b) provides that its listed conditions may be imposed "to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or...