                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0240n.06

                                           No. 11-3207

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                   FILED
                                                                                     Feb 29, 2012
UNITED STATES OF AMERICA,                            )
                                                     )                         LEONARD GREEN, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
JOHN M. SMALCER, JR.,                                )       THE NORTHERN DISTRICT OF
                                                     )       OHIO
       Defendant-Appellant.                          )




       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. John M. Smalcer, Jr., who is represented by counsel, appeals a district court

order sentencing him to thirty-six months of imprisonment. The parties have waived oral argument,

and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

       In September 2006, Smalcer was charged with two counts of bankruptcy fraud in violation

of 18 U.S.C. § 157(3), and one count of forging a judicial signature in violation of 18 U.S.C. § 505.
In December 2006, pursuant to a written plea agreement, Smalcer pled guilty to all three counts of

the indictment. The district court sentenced Smalcer to five years of probation.

       In October 2010, Smalcer was arrested for violating three conditions of his probation.

Smalcer admitted to committing the violations. The district court ordered Smalcer to undergo a

mental health evaluation with the Bureau of Prisons and ordered the violation hearing held in

abeyance pending the completion of the examination.

       In February 2011, the district court conducted the violation hearing. Smalcer was sentenced

to thirty-six months of imprisonment, an upward variance from the advisory Sentencing Guidelines
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range of three to nine months of imprisonment. In addition to the term of imprisonment, the district

court sentenced Smalcer to three years of supervised release and imposed several special conditions.

Most notably, the district court prohibited Smalcer from having any contact with his wife and

children, unless ordered by an appropriate court of jurisdiction.

       On appeal, Smalcer argues that: 1) the order prohibiting him from contacting his children

is procedurally and substantively unreasonable and violates his due process rights; 2) the district

court’s failure to consider the nature and circumstances of his convictions and the court’s failure to

appropriately weigh the relevant factors resulted in a procedurally and substantively unreasonable

sentence; and 3) the district court’s improper order for a psychological examination and its improper

order that he divulge his Facebook password violated his Fifth Amendment privilege against

compelled self-incrimination, resulting in a procedurally and substantively unreasonable sentence.

       “‘We review the imposition of a supervised-release condition for abuse of discretion.’”

United States v. May, 568 F.3d 597, 607 (6th Cir. 2009) (quoting United States v. Carter, 463 F.3d

526, 528 (6th Cir. 2006)). “On ‘abuse of discretion’ review, ‘where a condition of supervised release

is reasonably related to the dual goals of probation, [namely] the rehabilitation of the defendant and

the protection of the public, it must be upheld.’” United States v. Kingsley, 241 F.3d 828, 835 (6th

Cir. 2001) (quoting United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)). This “rigorous”

standard of review “permits reversal of a district court’s directive only in comparatively extreme

circumstances.” Id.
       “We review the imposition of a special condition of supervised release along two dimensions.

One dimension is procedural . . . .” Carter, 463 F.3d at 528. The district court errs procedurally

when it fails to state on the record its specific reasons for imposing special conditions on supervised

release. See id. at 528-29; see also 18 U.S.C. § 3553(c). The second dimension is substantive and

tracks 18 U.S.C. § 3583(d). See Carter, 463 F.3d at 529. Under § 3583(d), the district court’s

imposition of special conditions on supervised release must 1) be “reasonably related to the factors

set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)”; 2) “involve[] no greater
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deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. §]

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)”; and 3) be “consistent with any pertinent policy statements

issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a).” 18 U.S.C. § 3583(d).

       The special condition that Smalcer has no contact with his family without a court order is

justified. The district court imposed the special no-contact condition because of several factors that

the court found disconcerting. The district court relied on the information contained in Smalcer’s

supplemental violation report and the psychological evaluation in concluding that Smalcer posed a

danger to the community and to his family.

       No substantive error was committed. Smalcer only objects to the district court’s application

of 18 U.S.C. §§ 3583(d)(1) and (d)(2). The imposed special condition is reasonably related to

Smalcer’s history and characteristics. See 18 U.S.C. §§ 3553(a)(1), 3583(d)(1). The fact that the

condition only relates to one § 3553(a) factor is not determinative. See Carter, 463 F.3d at 529. The

record establishes that Smalcer’s behavior posed a threat to his children. Thus, the imposed

condition is reasonably related to a valid concern regarding the safety and welfare of Smalcer’s

children.

       In addition, the condition “involves no greater deprivation of liberty than is reasonably

necessary.” 18 U.S.C. § 3583(d)(2). The no-contact order is reasonably necessary to protect

Smalcer’s children. See 18 U.S.C. § 3553(a)(2)(C). Further, the no-contact condition is not a

complete bar to Smalcer’s fundamental right of family association, thus providing further support
for the restriction. See United States v. Crume, 422 F.3d 728, 734 (8th Cir. 2005). Therefore, the

special no-contact condition does not violate Smalcer’s due process rights.

       Smalcer’s second claim is also without merit. At Smalcer’s revocation hearing, the district

court revoked Smalcer’s prior sentence of probation and resentenced him. 18 U.S.C. § 3565(a)(2).

Thus, the district court was required to consider the pertinent United States Sentencing Guidelines

and § 3553(a) factors in imposing Smalcer’s subsequent sentence.
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        We review a sentence upon revocation of supervised release “‘under a deferential abuse-of-

discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Reasonableness review has both a

procedural and a substantive component. See Gall, 552 U.S. at 51. When reviewing a district

court’s sentencing determination, we “must first ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

        “Assuming that the district court’s sentencing decision is procedurally sound, [we] should

then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id. A substantively reasonable sentence “is ‘sufficient but not greater than necessary, to

comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).” United States v. Petrus,

588 F.3d 347, 353 (6th Cir. 2009) (quoting Bolds, 511 F.3d at 580). “Substantive unreasonableness

focuses on the length and type of the sentence and will be found when ‘the district court selects a

sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing

factors, or gives an unreasonable amount of weight to any pertinent factor.’” United States v.

Camacho-Arellano, 614 F.3d 244, 247 (6th Cir. 2010) (citations omitted) (quoting United States v.

Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (internal quotation marks omitted)).

        Smalcer argues that his sentence was procedurally unreasonable because the district court
failed to consider all of the § 3553(a) factors, specifically the nature and circumstances of his

underlying offenses. The record demonstrates that the district court did consider the nature and

circumstances of Smalcer’s bankruptcy fraud and forgery offenses. After considering Smalcer’s

persistent pattern of defiance and manipulation of authority, the district court concluded that the

advisory sentencing guidelines were “woefully inadequate.” Thus, the district court’s sentence is

procedurally reasonable.
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       Smalcer argues that the district court’s sentence is also substantively unreasonable because

the court failed to afford any weight to the nature and circumstances of Smalcer’s underlying

convictions. He further argues that the court placed undue weight on his post-revocation conduct.

The record adequately demonstrates that the district court considered the nature and circumstances

of Smalcer’s underlying convictions. The record also demonstrates that the district court prudently

considered the pertinent § 3553(a) factors, but “the court did not weigh these factors so heavily as

to make the sentence substantively unreasonable.” United States v. Simmons, 587 F.3d 348, 365 (6th

Cir. 2009), cert. denied, 130 S. Ct. 2116 (2010). Moreover, the totality of the circumstances,

including the district court’s consideration of the pertinent § 3553(a) factors, Smalcer’s probation

violations, and Smalcer’s post-revocation conduct, justify the extent of the variance the district court

imposed. See Gall, 552 U.S. at 51; see also United States v. Johnson, 403 F.3d 813, 817 (6th Cir.

2005). Therefore, Smalcer has failed to demonstrate that his sentence is substantively unreasonable.

       Smalcer’s final argument lacks merit. Smalcer claims that the district court’s sentence is

procedurally and substantively unreasonable because the district court considered impermissible

factors. Specifically, Smalcer challenges his psychological evaluation and use of his Facebook page.

However, a factor is not impermissible when the district court draws its reasoning in the terms of §

3553(a). See United States v. Collington, 461 F.3d 805, 810 (6th Cir. 2006). The district court

considered the psychological evaluation and the content of Smalcer’s Facebook page in relation to

Smalcer’s history, characteristics, and need to protect the public. See 18 U.S.C. § 3553(a). Thus,
the district court’s sentence is not procedurally or substantively unreasonable based on a

consideration of these factors.

       Smalcer also argues that the district court violated his Fifth Amendment right against self-

incrimination by ordering that he undergo a psychological evaluation and divulging his Facebook

password. A probation revocation proceeding is not a criminal prosecution and Smalcer was not due

“the full panoply of rights due a defendant” in a criminal prosecution. Morrissey v. Brewer, 408 U.S.

471, 480 (1972). “Just as there is no right to a jury trial before probation may be revoked, neither
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is the privilege against compelled self-incrimination available to a probationer.” Minnesota v.

Murphy, 465 U.S. 420, 435 n.7 (1984). The district court ordered this information at Smalcer’s

probation violation hearing. At that time, Smalcer was no longer being subjected to criminal

prosecution. Thus, Smalcer no longer held the privilege against self-incrimination. See id.

       The district court’s order is affirmed.
