United States v. Dempsey

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 14, 1999
• Docket: 98-5450
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ___________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/14/99 No. 98-5450 THOMAS K. KAHN Non-Argument Calendar CLERK ___________________________

D.C. Docket No. 97-08026-CR-T/P-KLR

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

JAMES DEMPSEY, Defendant - Appellant. ____________________________

Appeal from the United States District Court for the Southern District of Florida ____________________________

(July 14, 1999)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

James Dempsey appeals the district court's refusal to set aside his probation

officer's decision to impose an occupational restriction as a condition of his supervised

release. In December 1993, Dempsey was convicted of two counts of mail fraud, in

violation of 18 U.S.C. § 1341, for fraudulently obtaining payment for rare coins. He

was sentenced in the Eastern District of New York to twelve months and one day of

prison to be followed by five years of supervised release. The sentencing court did

not impose any occupational restriction as a condition of his supervised release.

In November 1997, jurisdiction over Dempsey during the remainder of his term

of supervised release was transferred to Southern District of Florida. At some point

after that transfer, Dempsey’s probation officer imposed an occupational restriction

as a condition of Dempsey’s supervised release which prohibited him from engaging

in the rare coin business.

In July 1998, Dempsey filed a motion pursuant to Rule 32.1(b) of the Federal

Rules of Criminal Procedure requesting the district court to either modify his

supervised release by terminating it, or, alternatively, to clarify the terms of his

supervised release by setting aside the probation officer’s imposition of the

occupational restriction. He also requested the court to conduct a hearing on that

motion. The district court denied Dempsey’s motion and his request for a hearing.

2 On appeal, Dempsey contends the district court erred in refusing to set aside the

probation officer’s imposition of the occupation restriction.1 We agree.

A probation officer lacks the authority to impose an occupational restriction as

a condition of supervised release. Our conclusion in that regard is compelled by the

fact that 18 U.S.C. § 3583(d), which authorizes imposition of occupational restrictions

as a condition of supervised release, refers exclusively to a court's authority to impose

occupational restrictions. See 18 U.S.C. § 3583(d). Likewise, U.S.S.G. § 5F1.5,

which implements Congress' mandate in 18 U.S.C. § 3583(d), authorizes only a court

to impose occupational restrictions and restricts its authority to do so to those

instances where the court specifically finds (1) "a reasonably direct relationship"

between the occupational restriction and the conduct relevant to the defendant's

offense and (2) the restriction is "reasonably necessary to protect the public" from the

possibility the defendant will "continue to engage in unlawful conduct similar to that

for which he was convicted." U.S.S.G. § 5F1.5. Congress probably could have chosen

to grant probation officers the discretion to impose occupational restrictions, but it did

not. The district court therefore erred by refusing to set aside the probation officer's

imposition of an occupational restriction.

1 Dempsey does not appeal the district court’s refusal to terminate his supervised release. He does appeal the district court's refusal to conduct a hearing on his request to set aside the occupational restriction, but that issue is moot in light of our conclusion that the district court erred in refusing to set aside the probation officer's imposition of the occupational restriction.

3 We are unpersuaded by the government's argument that because Dempsey was

required to engage in a lawful occupation as a condition of his supervised release, it

was reasonable for the probation officer to conclude Dempsey could not lawfully

engage in the coin business in light of his past criminal behavior in that business. As

we have already explained, Congress did not leave it to probation officers to decide

when it is reasonable to impose an occupational restriction. If the government

believes an occupational restriction is justified in Dempsey's case--a matter which we

have no occasion to address on this record--it can ask the district court to impose that

restriction.

The district court's August 16, 1998 order is VACATED to the extent it refuses

to set aside the probation officer's imposition of the occupational restriction. The case

is REMANDED for further proceedings in light of this opinion.