                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                               FEB 2 2004
                    UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                    Clerk
                                  TENTH CIRCUIT




 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 03-5114
          v.                                             (N.D. Oklahoma)
 WILLIAM ALLEN TURNER,                               (D.C. NO. 00-CR-113-C)

               Defendant-Appellant.



                            ORDER AND JUDGMENT             *




Before HENRY , BALDOCK , and HARTZ , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34 (a)(2); 10 TH C IR . R. 34.1(G). The case

therefore is ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      William Allen Turner pleaded guilty to bank fraud in violation of 18 U.S.C.

§ 1344(1) on January 25, 2001. On November 14, 2002, Mr. Turner was

sentenced to zero months’ imprisonment and five years’ supervised release,

ordered to make restitution in the amount of $96,793.99, and assessed $100.00.

In March 2003, the United States Probation Office filed a “Petition for Action of

Supervised Release,” alleging that Mr. Turner violated the conditions of his

release by failing to pay restitution, leaving the judicial district without

permission, failing to submit required monthly reports, failing to truthfully answer

all inquiries from the probation officer, and failing to provide the probation

officer with access to all financial information. A “Superseding Petition for

Action of Supervised Release,” filed in April 2003, alleged that, in addition to the

violations listed above, Mr. Turner also attempted to obtain a line of credit

without first consulting the probation officer.

      Mr. Turner filed a motion to dismiss the Petition for Action of Supervised

Release, arguing that his original sentence was illegal because a supervised

release can only follow a period of imprisonment. The district court denied Mr.

Turner’s motion to dismiss and found, after a full evidentiary hearing, that Mr.

Turner had violated the terms and conditions of his supervised released. On June

23, 2003, the court sentenced Mr. Turner to twelve months’ imprisonment and

forty-eight months’ supervised release and reimposed restitution. Mr. Turner


                                           -2-
appeals the judgment and sentence. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.



                                I. BACKGROUND

      Prior to being charged with bank fraud, Mr. Turner was self-employed as a

roofing contractor. In 1999, Mr. Turner’s roofing business declined due to a

variety of factors, including slow payments from customers, bad weather, a poor

economy, and Mr. Turner’s failing health. Apparently in an effort to make debt

and payroll payments, Mr. Turner knowingly initiated a check kiting scheme.

From on or about February 1, 1999, to on or about March 31, 1999, he defrauded

three Oklahoma financial institutions, ultimately causing a total loss of

approximately $290,000.

      Mr. Turner has been in poor health for several years. After pleading guilty

to bank fraud in violation of 18 U.S.C. § 1344(1), he began experiencing

debilitating health problems associated with severe, chronic coronary disease.

Mr. Turner’s heart condition caused his sentencing to be delayed several times.

He was placed on a heart transplant list in August 2001, suffered a heart attack in

November 2001, and underwent a coronary bypass graft procedure the next year.

Following these health-related delays, the district court finally sentenced Mr.

Turner on November 14, 2002. Mr. Turner moved for a downward departure


                                         -3-
based on his poor health, and the government agreed such a departure was

warranted. The district court granted the motion for downward departure and

sentenced Mr. Turner to zero months’ imprisonment and five years’ supervised

release, despite the fact that the Sentencing Guidelines provided a range of twelve

to eighteen months’ imprisonment based on Mr. Turner’s total offense level of

thirteen and his criminal history category of I. Rec. vol. II, at 17 (Presentence

Investigation Report, approved Oct. 28, 2002). Mr. Turner did not appeal his

conviction or sentence.

      Mr. Turner’s supervised release included two mandatory conditions of

supervision, sixteen standard conditions, and three additional conditions. The

government alleged that Mr. Turner violated six of these conditions: 1) he was

$9,000 in arrears on his restitution as of April 2003; 2) he left the state of

Oklahoma and traveled to Amarillo, Texas on December 6, 2002, without first

obtaining an interstate travel permit from the United States Probation Office; 3)

he did not submit mandatory monthly reports for the months of December 2002,

and January, February, and March 2003; 4) he repeatedly falsely denied having a

roommate in violation of his obligation to truthfully answer all inquiries by the

probation officer; 5) he attempted to open a line of credit with Moody’s Jewelry

to facilitate the purchase of a $20,000 ring set for his girlfriend without obtaining

the permission of the Probation Office to engage in a credit transaction; and 6) he


                                          -4-
failed to provide the Probation Office with requested financial and accounting

records.

      In his motion to dismiss, Mr. Turner argued that his original sentence was

illegal because a supervised release can only be imposed following a period of

imprisonment and that, consequently, his supervised release could not be revoked.

He also argued that any violations of his supervised release were technical and

minor in nature and did not merit imprisonment. After a full evidentiary hearing,

the district court found that Mr. Turner had violated the conditions of his

supervised release. At a new sentencing hearing on June 23, 2003, the court

sentenced Mr. Turner to twelve months’ imprisonment and forty-eight months’

supervised release and reimposed the restitution and special assessment

requirements. Mr. Turner now appeals his sentence.

      On appeal, Mr. Turner alleges that: 1) his original sentence was illegal

because a supervised release can only follow a sentence of imprisonment; 2) the

district court should not have imposed a new prison sentence for Mr. Turner’s

violations of his supervised release; 3) the district court erred by denying him the

right to engage in self-employment during his supervised release; and 4) the

district court erred by failing to give him advance notice of the restriction on self-

employment.




                                          -5-
                                II. DISCUSSION

      A. Legality of the Original Sentence

      In arguing against the revocation of his supervised release, Mr. Turner

challenges the legality of his original sentence. He argues that a sentence of zero

months’ imprisonment and five years’ supervised release is illegal because

supervised release can only be imposed following a period of initial

imprisonment. Both Mr. Turner and the government concede that the first part of

the original sentence is legal, as we have explicitly upheld a sentence of zero

months’ imprisonment. See United States v. Elliott, 971 F.2d 620, 621 (10th Cir.

1992) (“We conclude that a sentence of zero months does not literally violate the

prohibition on probation in 18 U.S.C. § 3561(a)(1).”).

      The United States Code and the Sentencing Guidelines suggest that a period

of imprisonment must proceed a supervised release. See 18 U.S.C. § 3583(a)

(“The court, in imposing a sentence to a term of imprisonment for a felony or a

misdemeanor, may include as a part of the sentence a requirement that the

defendant be placed on a term of supervised release after imprisonment.”)

(emphasis added); U.S.S.G. § 5D1.1 (“(a) The court shall order a term of

supervised release to follow imprisonment when a sentence of imprisonment of

more than one year is imposed, or when required by statute. (b) The court may

order a term of supervised release to follow imprisonment in any other case.”)


                                        -6-
(emphasis added). Based on this language, the Second Circuit has held that “[i]t

is clear that supervised release can never be imposed without an initial period of

imprisonment.” United States v. Thomas, 135 F.3d 873, 875 (2d Cir. 1998).

However, we need not decide at this time whether § 3583(a) and U.S.S.G. §

5D1.1 compel the conclusion that supervised release presupposes a period of

imprisonment because we find that Mr. Turner waived his right to challenge the

legality of his sentence by failing to raise the issue on direct appeal.

      “In a criminal case, a defendant’s notice of appeal must be filed in the

district court within 10 days after the later of: (i) the entry of either the judgment

or the order being appealed; or (ii) the filing of the government’s notice of

appeal.” F ED . R. A PP . P. 4(b)(1)(A). The court originally sentenced Mr. Turner

on November 14, 2002; the judgment was entered on November 22, 2002. Mr.

Turner did not file an appeal of his sentence within the ten-day period. He asserts

that he is now making a direct attack on the legality of the sentence, but such an

attack is clearly time-barred under the Federal Rules of Appellate Procedure.

      Mr. Turner relies on the Second Circuit opinion in United States v. Thomas,

in which the defendant successfully challenged the legality of her original

sentence despite having failed to raise the issue on direct appeal. Thomas is

distinguishable from this case, however, because in Thomas the government

conceded the permissibility of the challenge. 135 F.3d at 874. Here, the


                                           -7-
government argues that Mr. Turner’s challenge to the legality of his sentence is

barred due to his failure to raise the issue on direct appeal.

      Alternatively, Mr. Turner’s challenge to his original sentence can be

viewed as a collateral attack. Mr. Turner contends that his challenge is not

collateral in nature because he is “directly” attacking the revocation of his

original sentence. The government posits that “[w]hen the Probation Office

sought to revoke the supervised release portion of the sentence, [Mr. Turner] did

challenge the sentence collaterally” and that “[i]n doing so, he, in effect, made a

motion to the district court pursuant to 28 U.S.C. § 2255.” Aple’s Br. at 18.

However, Mr. Turner’s argument cannot succeed even if he did pursue this issue

through a collateral challenge, as his failure to challenge the sentence on direct

appeal severely limits his ability to raise the issue collaterally.

      “Generally, a movant is barred from raising an alleged error affecting his

conviction or sentence for the first time on collateral review unless he can show

both cause for the default and actual prejudice.” 1 United States v. Wiseman, 297

F.3d 975, 979 (10th Cir. 2002); see also United States v. Frady, 456 U.S. 153,


      1
         A defendant can also be excused from failing to raise a challenge on
direct appeal by showing that the error has resulted in a fundamental miscarriage
of justice. See United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). The
miscarriage of justice exception does not apply in this case because Mr. Turner
“has not made a colorable showing of factual innocence.” Id.; see also Schlup v.
Delo, 513 U.S. 298, 321 (1995) (noting that the miscarriage of justice exception is
“explicitly tied” to defendant’s innocence).

                                           -8-
167 (1982) (“[T]o obtain collateral relief based on trial errors to which no

contemporaneous objection was made, a convicted defendant must show both (1)

‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’

resulting from the errors of which he complains.”).

      A movant can show cause for the procedural default if he can
      demonstrate that his claim was so novel that its legal basis was not
      reasonably available to counsel. Cause can also be established by
      showing that counsel rendered constitutionally ineffective assistance.
      Additionally, the § 2255 movant who challenges his conviction can
      overcome the procedural bar if he can demonstrate that the
      constitutional error has probably resulted in the conviction of one who
      is actually innocent.

Wiseman, 297 F.3d at 979 (internal citations and quotation marks omitted).

      Mr. Turner has not attempted to show cause for failing to raise the issue on

direct appeal or actual prejudice resulting from the error. Notably, he actively

sought the sentence he now claims is illegal by filing a sentencing motion asking

for “a downward departure of five levels to a level 8, which would permit the

Court to impose a sentence of zero-months custody followed by Supervised

Release.” Aplt’s Br. at 12 (quoting Defendant’s Sentencing Motion at 23). His

zero-month sentence was far below the twelve- to eighteen-month range provided

in the Sentencing Guidelines and resulted from the district court’s concern for his

health and desire to facilitate rehabilitation. See Rec. vol. 1, doc. 111, at 1

(Order, filed June 11, 2003) (“At sentencing, the Court granted the government’s

motion for a downward departure on the basis of Defendant’s serious medical

                                          -9-
condition.”). Mr. Turner clearly had no intention of challenging the sentence until

he found himself back in court for violating the terms of his supervised release.

For these reasons, we hold that Mr. Turner’s challenge to the legality of his

original sentence is barred by his failure to timely raise the issue on direct appeal.

      B. Appropriateness of the New Prison Sentence

      Mr. Turner argues that any violations of his supervised release were

“technical or non-willful” and should not have resulted in the revocation of his

supervised release and the imposition of a new prison sentence. Aplt’s Br. at 15.

The government’s Petition for Action of Supervised Release listed six separate

violations of the terms and conditions of the supervised release committed by Mr.

Turner. At the evidentiary hearing on the revocation of the supervised release,

the district court found that “[t]he testimony clearly supports the violations and

failure to comply with the reporting [requirements], leaving the state without

permission, failure to file, [and failure to] provide the financial statements as

requested by the probation officer.” Rec. vol. III, at 94 (Tr. of Revocation Hr’g,

dated May 29, 2003). The court went on to note that “[t]he failure to pay

restitution also is a failure” to comply with the terms of the supervised release.

Id.

      “This court reviews a district court’s decision to revoke supervised release

for abuse of discretion. Legal questions relating to the revocation of supervised


                                         -10-
release are reviewed de novo.” United States v. Disney, 253 F.3d 1211, 1213

(10th Cir. 2001) (internal citations omitted). “The district court must find by a

preponderance of the evidence that the defendant violated a condition of his

supervised release.” Id. (internal quotation marks omitted).

      Mr. Turner characterizes each of the six violations alleged by the

government as either misunderstandings or non-willful acts. In response to the

allegations, he argues: 1) that he did not pay restitution due to lack of funds; 2)

that he did not realize that he lacked permission to leave the state on a business

trip and that he reported back to the Probation Office and submitted hotel receipts

from the trip upon his return; 3) that his failure to submit monthly reports was due

to his poor health; 4) that he denied having a roommate because he thought of the

alleged roommate as a caretaker; 5) that his transaction with Moody’s Jewelry

involved bartering for roofing services and was therefore not a credit transaction;

and 6) that he did not submit requested financial documents because he was too

sick to dig through the boxes to find them. The district court heard and rejected

each of these excuses after a thorough revocation hearing involving six witnesses.

The court chose not to credit Mr. Turner’s testimony, concluding “[i]t seems

somewhat confusing or a mystery that Mr. Turner has a fiancee, he was going to

buy a $20,000 ring but he was so depressed that he can’t work, he can’t make a

report, [and] he can’t get it to the probation office. In fact, it’s so conflicting that


                                          -11-
it’s not believable.” Rec. vol. III at 94-95. The district court did not abuse its

discretion in drawing such a conclusion.

      As Mr. Turner points out, his offenses consisted entirely of Grade C

violations, 2 the least serious of the three grades of supervised release violations.

However, a district court does have the discretion to revoke a defendant’s

supervised release and sentence him to a term of imprisonment for a Grade C

violation. See 18 U.S.C. § 3583(e)(3). The court may

      revoke a term of supervised release, and require the defendant to serve
      in prison all or part of the term of supervised release authorized by
      statute for the offense that resulted in such term of supervised release
      . . . if the court, pursuant to the Federal Rules of Criminal Procedure
      applicable to revocation of probation or supervised release, finds by a
      preponderance of the evidence that the defendant violated a condition
      of supervised release.

Id.; see also U.S.S.G. § 7B1.3(a)(2) (policy statement) (“Upon a finding of a

Grade C violation, the court may (A) revoke probation or supervised release; or

(B) extend the term of probation or supervised release and/or modify the

conditions of supervision.”). Thus, while the district court could have chosen to

extend the term of Mr. Turner’s supervised release rather than sentencing him to

prison time, the court was well within its discretion to revoke the release despite

the fact that the violations all fell within the Grade C category.


      2
         A “Grade C” violation is defined as “conduct constituting (A) a federal,
state, or local offense punishable by a term of imprisonment of one year or less;
or (B) a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3).

                                         -12-
      We recognize that Mr. Turner’s twelve-month prison sentence does exceed

the range suggested in the Sentencing Guidelines. See U.S.S.G. § 7B1.4(a)

(policy statement) (recommending a sentence of three to nine months’

imprisonment for Grade C violations of supervised release committed by

defendants with a criminal history category of I). However, his sentence is well

within the statutory maximum of thirty-six months’ imprisonment. See 18 U.S.C.

§ 3583(e)(3). We have previously held that “the policy statements regarding

revocation in Chapter 7 of the U.S.S.G. are advisory rather than mandatory in

nature.” United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992); see also

United States v. Brooks, 976 F.2d 1358, 1360 (10th Cir. 1992) (affirming a

sentence exceeding the range suggested in U.S.S.G. § 7B1.4(a)). As in Lee and

Brooks, the sentencing judge demonstrated awareness of the range recommended

in U.S.S.G. § 7B1.4(a), see Rec. vol. V, at 4 (Sentencing Tr., dated June 23,

2003), but chose to sentence Mr. Turner to a longer twelve-month term of

imprisonment as a “result of the defendant’s ongoing pattern of violations which

precluded the probation office from effective supervision.” Id. at 5. Given the

numerous violations committed by Mr. Turner, we find that the sentence imposed

by the district court was reasonable.

      C. Appropriateness of the Occupational Restriction

      Mr. Turner’s new supervised release, to follow his twelve-month prison


                                        -13-
sentence, contains a special condition requiring him to “refrain from any form of

self employment during the term of supervised release.” Rec. vol. I, doc. 115, at

3 (Judgment, dated July 1, 2003). He contends that the district court wrongfully

imposed this serious occupational restriction, that it is “unreasonable,”and,

curiously, that it “will not prohibit him from engaging in bank fraud.” Aplt’s Br.

at 21.

         “The district court generally enjoys broad discretion in setting a condition

of supervised release.” United States v. Erwin, 299 F.3d 1230, 1232 (10th Cir.

2002). We review the imposition of such conditions for abuse of discretion. Id.

The sentencing court has the statutory authority to

         order, as a further condition of supervised release, to the extent that
         such condition–

         (1) is reasonably related to the factors set forth in section 3553(a)(1),
         (a)(2)(B), (a)(2)(C), and (a)(2)(D);
         (2) involves no greater deprivation of liberty than is reasonably
         necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C),
         and (a)(2)(D); and
         (3) is consistent with any pertinent policy statements issued by the
         Sentencing Commission pursuant to 28 U.S.C. 994(a);

         any condition set forth as a discretionary condition of probation in
         section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any
         other condition it considers to be appropriate.

18 U.S.C. § 3583(d). Section 3563(b)(5) authorizes the court to order, as a

condition of supervised release, that the defendant

         refrain, in the case of an individual, from engaging in a specified

                                           -14-
      occupation, business, or profession bearing a reasonably direct
      relationship to the conduct constituting the offense, or engage in such
      a specified occupation, business, or profession only to a stated degree
      or under stated circumstances.

18 U.S.C. § 3563(b)(5). Prior to imposing an occupational restriction, the court

must determine that:

      (1) a reasonably direct relationship existed between the defendant’s
      occupation, business, or profession and the conduct relevant to the
      offense of conviction; and (2) imposition of such a restriction is
      reasonably necessary to protect the public because there is reason to
      believe that, absent such restriction, the defendant will continue to
      engage in unlawful conduct similar to that for which the defendant
      was convicted.

U.S.S.G. § 5F1.5(a).

      The plain language of the United States Code and the Sentencing

Guidelines clearly requires a connection between the occupational restriction and

the underlying offense for which the defendant was convicted. Mr. Turner

pleaded guilty to defrauding three financial institutions with which he held

checking accounts through his roofing business. After his initial sentencing, he

failed to provide information about his business activities to the probation officer

in violation of the terms of his supervised release. Based on these connections,

the district court acted well within its discretion when it concluded that Mr.

Turner’s occupation as a self-employed roofer bears “a reasonably direct

relationship” to his offense of bank fraud, as required by 18 U.S.C. § 3583(d) and

U.S.S.G. § 5F1.5(a). See United States v. Smith, 332 F.3d 455, 461 (7th Cir.

                                         -15-
2003) (holding that “[t]he connection between [defendant’s] employment as a

truck driver and his crime of theft of interstate freight” was sufficiently “obvious”

for purposes of U.S.S.G. § 5F1.5(a)(1)); cf. Erwin, 299 F.3d at 1232-33 (holding

that the requirement of U.S.S.G. § 5F1.5(a)(1) was not satisfied where the district

court restricted defendant’s commercial fishing license after he pleaded guilty to

an unrelated possession of ammunition offense).

      Mr. Turner also argues that the district court failed to make findings

regarding the necessity of the occupational restriction. In United States v. Smith,

although the Seventh Circuit held that the connection between commercial truck

driving and the crime of conviction (the theft of the very freight defendant was

hired to transport) was “reasonably direct” for purposes of imposing an

occupational restriction, it remanded the case in part because the district court

failed to make “a finding that the restriction was necessary to prevent [defendant]

from engaging in the same conduct.” 332 F.3d at 461-62. We agree that such

findings are important and encourage district courts to make express findings

concerning the necessity of occupational restrictions. However, this case is easily

distinguishable from Smith, as much of the Seventh Circuit’s concern in that case

stemmed from the district court’s “reliance on factors unrelated to the offense of

conviction,” id., a concern indisputably not present here. Moreover, in Smith, the

district court imposed an occupational restriction of unspecified duration; in this


                                         -16-
case, the district court explicitly limited the duration of the occupational

restriction to the period of supervised release.

      We hold, based on the facts of this case, that the district court provided an

adequate basis for the restriction on self-employment. The court’s belief in the

necessity of this restriction was reflected at the sentencing hearing, where the

court stated in response to Mr. Turner’s objection to the occupational restriction,

“[w]e are going to protect the public this time.” Rec. vol. 5, at 7. This statement,

when considered alongside Mr. Turner’s failure to submit to less restrictive

attempts to monitor his business activities during his initial supervised release,

leads us to conclude that the district court was within its discretion to find that

“imposition of such a restriction is reasonably necessary to protect the public.”

U.S.S.G. § 5F1.5(a)(2). See United States v. Choate, 101 F.3d 562, 566 (8th Cir.

1997) (upholding a prohibition on self-employment because it “seems a

reasonable way to protect the public” from defendant’s business-related wire

fraud).

      Contrary to Mr. Turner’s characterization of this issue, the restriction on

self-employment will not necessarily prohibit him from earning a living as a

roofer. He remains free to work for others, provided he does not continue to run

his own roofing business. While we recognize that this restriction is significant,

the district court determined that it is necessary to prevent Mr. Turner from


                                          -17-
continuing to engage in business-related bank fraud. We hold that both

requirements of U.S.S.G. § 5F1.5(a) have been satisfied, and that the district

court was, therefore, within its discretion in imposing the restriction on self-

employment.

      D. Lack of Advance Notice of the Occupational Restriction

      Mr. Turner also claims that the occupational restriction was unreasonable

because he did not receive advance notice of the restriction in the presentence

report. He contends that the occupational restriction constitutes an upward

departure from the Sentencing Guidelines and therefore requires advance notice

under Burns v. United States, 501 U.S. 129 (1991). See id. at 136 (“[T]he textual

and contextual evidence of legislative intent indicates that Congress did not

intend district courts to depart from the Guideline sua sponte without first

affording notice to the parties.”).

      The restriction on self-employment imposed on Mr. Turner is not an

upward departure; rather, it is among the recommended conditions of supervised

release set forth in the Sentencing Guidelines. See U.S.S.G. § 5F1.5. In that

sense, this case is easily distinguishable from Burns, in which the court sentenced

the defendant to a term of imprisonment exceeding the maximum sentence

reflected in Guidelines and the presentence report. See 501 U.S. at 132-35.

      This case is also distinguishable from United States v. Bartsma, 198 F.3d


                                         -18-
1191, 1199-1200 (10th Cir. 1999), in which we extended the reasoning of Burns

to require notice prior to imposing a requirement that a defendant register as a

sex-offender as a special condition of supervised release. Our limited holding in

Bartsma is evidenced by our narrow conclusion that “the Burns rationale applies

when a district court is considering imposing a sex offender registration

requirement as a special condition of supervised release, and the condition is not

on its face related to the offense charged.” 3 Id. at 1199-1200. As the First

Circuit has recognized, “requiring registration as a sex offender is different, in

type and kind, from any of the usual conditions attached to supervised release.”

United States v. Brown, 235 F.3d 2, 4 (1st Cir. 2000). We later noted the limits

of the Bartsma holding and emphasized that “[b]y implication, presentence notice

is not required for some other conditions of release–perhaps most conditions.”

United States v. Barajas, 331 F.3d 1141, 1144 (10th Cir. 2003) (collecting cases);

see also United States v. Mills, 959 F.2d 516, 518 (5th Cir. 1992) (“We do not

believe it to be in the interest of justice . . . to extend the notice requirements of

Burns to cases where the defendant’s term of confinement is not at stake.

Requiring trial judges to give prior notice of their intent to impose an

occupational restriction would only further encumber the lengthy sentencing


      3
       The defendant in Bartsma was convicted of possession of a firearm by a
convicted felon, an offense having no direct nexus to the sex offender registration
requirement. 198 F.3d at 1194.

                                          -19-
process without adding anything to defendants’ existing procedural protections.”).

      In any event, Mr. Turner’s challenge must fail because he had constructive

notice of the occupational restriction. As in Barajas, “the challenged condition

[is] among the recommended conditions set forth in the Sentencing Guidelines,

and the factual predicates for [its] imposition were fully addressed in the PSR.”

331 F.3d at 1144; see also Brown, 235 F.3d at 4 (“[T]he guidelines contemplate

(and give the appellant constructive notice) that the sentencing court will tailor

supervised release conditions to fit the circumstances of the offense and the

characteristics of the offender.”). “Consequently, a defendant rarely, if ever, will

be able to claim unfair surprise when the sentencing court establishes the

conditions of supervised release.” Id.

      Both 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(e)(4) authorize the

imposition of an occupational restriction as a condition of supervised release. As

such, the challenged restriction is “among the discretionary conditions of

supervised release to which all defendants are alerted.” Barajas, 331 F.3d at

1145 (quoting United States v. Lopez, 258 F.3d 1053, 1056 (9th Cir.2001))

(emphasis added by Barajas). We therefore conclude that the district court did

not wrongfully deprive Mr. Turner of notice of the restriction on self-

employment.




                                         -20-
                       III. CONCLUSION

We AFFIRM the judgment of the district court.



                              Entered for the Court,



                              Robert H. Henry
                              Circuit Judge




                               -21-
