United States v. Dehaven

645 F. App'x 874
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 10, 2016
DocketNo. 15-12552
StatusPublished

This text of 645 F. App'x 874 (United States v. Dehaven) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dehaven, 645 F. App'x 874 (11th Cir. 2016).

Opinion

PER CURIAM:

Mark Daniel Dehaven appeals the terms of his supervised release imposed after pleading guilty to one count of receipt of child pornography, pursuant to 18 U.S.C. §§ 2252A(a)(2)(B), (b)(1). Dehaven argues that the district court abused its discretion in imposing special conditions of supervised release that required Dehaven to: (1) submit to random drug testing; (2) obtain probation officer approval before incurring new credit charges, opening new lines of credit, or making major purchases; and (3) obtain probation officer approval before coming into contact with his children. After thorough review, we affirm.

We review a district court’s imposition of a special condition of supervised release for abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003). We will reverse only if we have a [876]*876definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached. Id. Where a defendant fails to raise an objection in the district court, he waives the objection on appeal, and we are limited to reviewing for plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir.2003). To show plain error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007). If the defendant satisfies the three conditions, we may exercise our discretion to recognize the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. An error is not plain unless it is contrary to explicit statutory provisions or to on-point precedent in this Court or the Supreme Court. United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir.2009).

First, we are unconvinced by Deha-ven’s argument that the district abused its discretion in imposing a special condition of supervised release that required Deha-ven to submit to random drug testing. When imposing a term of supervised release, the district court is required to impose a condition that the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance. 18 U.S.C. § 3563(a)(5). However, this condition may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant. Id. In addition, the district court may order discretionary conditions that: (1) are reasonably related to the nature and circumstances of the offense, history and characteristics of the defendant, the need for adequate deterrence, the need to protect the public, and the need to provide the defendant with needed training, medical care, or correctional treatment in an effective manner; (2) involve no greater deprivation of liberty than is reasonably necessary; and (3) are consistent with any pertinent policy statements issued by the sentencing commission. Id. § 3563(b); 18 U.S.C. § 3583(d)(l)-(3).

“In determining to impose some imprisonment or none, some fine or none, some probation1 or none, and some conditions the violation of which will warrant termination of probation, the sentencing judge is given wide discretion to compound a prescription for the individual case before him.” United States v. Cothran, 855 F.2d 749, 751-52 (11th Cir.1988) (quotation omitted). A special condition does not need to relate to the nature of the offense of conviction, nor does it need to relate to each applicable § 3553(a) factor; rather, each factor is an independent consideration to be weighed. United States v. Bull, 214 F.3d 1275, 1278 (11th Cir.2000).

In this case) the district court did not abuse its discretion by requiring Dehaven to submit to random drug tests throughout the year during his supervised release— even though the district court waived the mandatory drug tests, and even though Dehaven might be at a low risk of substance abuse. Both the Seventh and Ninth Circuits have upheld the imposition of the mandatory drug testing requirement during supervised release in cases where the defendants did not have any drug history. See United States v. Jeremiah, 493 F.3d 1042, 1046-47 (9th Cir.2007) (persua[877]*877sive authority); United States v. Guy, 174 F.3d 859, 861-62 (7th Cir.1999) (persuasive authority) (reviewing for plain error). A district court has broad discretion to impose special conditions of supervised release, see Bull, 214 F.3d at 1278; Cothran, 855 F.2d at 751-52; Guy, 174 F.3d at 861-62, and the district court did not abuse its discretion here.

Similarly, we find no merit to De-haven’s claim that the district court abused its discretion in imposing special conditions of release related to his finances. The Sentencing Guidelines recommend a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer if the court has imposed on the defendant an installment schedule to pay restitution or a fine. U.S.S.G. § 5D1.3(d)(2). The Guidelines recognize that this condition is not necessary if the defendant is in compliance with the payment schedule. Id. The Guidelines also provide that the court may impose this condition in any case where it “may otherwise be appropriate.” Id.

In United States v. Camp, 410 F.3d 1042, 1046 (8th Cir.2005) (persuasive authority), the defendant was convicted of being a felon in possession of a firearm, and the district court nevertheless required the defendant to obtain the probation office’s approval before opening any new lines of credit. The Eighth Circuit held that the district court did not abuse its discretion in imposing this condition of release, even though it was not related to the firearm offense. Id. It reasoned that the credit-line condition was reasonably related to Camp’s history of non-payment of his child support obligations, and was a monitoring device the probation officer could use to complement the conditions that the defendant follow state court child support orders and remain employed or actively seek employment. Id.

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Related

United States v. Karl P. Zinn
321 F.3d 1084 (Eleventh Circuit, 2003)
United States v. Taylor
338 F.3d 1280 (Eleventh Circuit, 2003)
United States v. Trelliny T. Turner
474 F.3d 1265 (Eleventh Circuit, 2007)
United States v. Schultz
565 F.3d 1353 (Eleventh Circuit, 2009)
Quilloin v. Walcott
434 U.S. 246 (Supreme Court, 1978)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Glen Douglas Cothran
855 F.2d 749 (Eleventh Circuit, 1988)
United States v. William Joseph Frazier
26 F.3d 110 (Eleventh Circuit, 1994)
United States v. Marcia D. Guy
174 F.3d 859 (Seventh Circuit, 1999)
United States v. Leroy Alfonso Bull
214 F.3d 1275 (Eleventh Circuit, 2000)
United States v. Kenneth Camp
410 F.3d 1042 (Eighth Circuit, 2005)
United States v. Thomas Mickelson
433 F.3d 1050 (Eighth Circuit, 2006)
United States v. Jeremiah
493 F.3d 1042 (Ninth Circuit, 2007)
United States v. Sean Widmer
785 F.3d 200 (Sixth Circuit, 2015)

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Bluebook (online)
645 F. App'x 874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dehaven-ca11-2016.