                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4372


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

          v.

ERIC DAVID BENNETT,

               Defendant-Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:10-cr-00064-1)


Argued:    March 20, 2012                   Decided:    April 24, 2012


Before TRAXLER,   Chief   Judge,   and   DUNCAN   and   DAVIS,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. John Lanier
File, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia, for Appellee.   ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Charleston, West Virginia, for Appellant.   R.
Booth Goodwin II, United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       In     this      appeal,      we    examine          whether       the     district        court

abused       its       discretion         by     imposing          two    supervised         release

conditions related to financial matters (“special conditions”)

in    sentencing         appellant        Eric        David    Bennett.         For   the    reasons

stated       within,      we   conclude           that        imposition         of   the    special

conditions does not pass muster under 18 U.S.C. § 3583(d)(1)-(3)

and must therefore be vacated.

                                                  I.

       On September 14, 2010, Bennett was charged in the United

States District Court for the Southern District of West Virginia

in     a    two-count      superseding            indictment             with:    (1)       knowingly

possessing         four    firearms            after      having      been       convicted       of   a

misdemeanor domestic violence offense, in violation of 18 U.S.C.

§§ 922(g)(9) and 924(a)(2); and (2) knowingly misrepresenting on

a Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

form       that    he    had   not    been       convicted          of    a     felony      or   crime

resulting in more than one year of imprisonment and that he had

not        been    dishonorably           discharged           from       the     United         States

military,         in    violation         of     18       U.S.C.    §     1001(a)(2).        Bennett

entered into a plea agreement with the Government in which he

pled guilty to Count One and Count Two was dismissed.

       The charges arose from an investigation of Bennett’s then

most       recent,      somewhat     strange          and     assuredly         violent      conduct,

                                                      2
reflective of his lengthy and troubled history of involvement in

the    criminal     justice      system.    Specifically,       in       October    2008,

Bennett was living with his then-girlfriend, Amanda Khurshid,

and their infant daughter. When Khurshid discovered that Bennett

was still having a              relationship with his ex-wife (mother to

three   of   his    other       children,   and   a   target    of       prior    violent

behavior by Bennett), she asked him to leave their home. Bennett

refused and Khurshid apparently did not force the issue, hoping

the situation would “play out” and he would eventually leave.

J.A. 101.

       Instead, her decision triggered two weeks of intermittent

violence     from        Bennett.     On    October     6,      after       her    first

confrontation with Bennett, wherein he threatened her with a

handgun, took her car keys and she was forced to escape the home

through a window, Khurshid sought and was granted an Emergency

Protective Order. The next day, Bennett was removed from the

home.    After     his    removal,    Bennett’s       conduct    towards         Khurshid

escalated: he sent her messages and made phone calls to her

despite being prohibited from contact, he entered the home while

she was sleeping and threatened to kill her, he reentered the

home when the locks were changed, and apparently he removed

screws that Khurshid also had installed to secure the windows.

In    response     to    this    conduct,   Khurshid     filed       a    petition   for

contempt of the protective order. On the same day that she filed

                                            3
the petition, and on two days soon after, Bennett repeatedly set

off   the    panic       alarm     on    Khurshid’s            car      and   on     one     occasion

slashed two of her tires.

      On     October       16,     after        a       final       hearing         regarding        the

protective        order,         Bennett       physically            confronted            Khurshid’s

stepfather in the parking lot of the county courthouse; this

attack was interrupted when a police officer wrestled him to the

ground.     Bennett        was    arrested          for    battery         and      obstructing        a

police officer and was arraigned that same day; he was released

after posting $100,000 bail.

      After these events, Bennett’s behavior calmed and Khurshid

opted to abandon the protective order proceedings. In November

2008, however, Bennett was again making violent threats when he

discovered that Khurshid had been on a date with another man,

and that she was planning to leave town with their daughter for

Thanksgiving. In light of these threats, Khurshid recommenced

protective        order      proceedings                and        again      Bennett            reacted

violently. On succeeding days, Khurshid found additional vehicle

tires      had    been     slashed,           Bennett         followed        her     in     his     car

gesturing        as   if    he     were       shooting         a     firearm,        and     he     made

threatening calls to her.

      During this period, Raleigh County Sheriff’s Sergeant J.B.

Miller began investigating Khurshid’s allegations related to the

protective        orders     she        was     granted.           On    December          18,     2008,

                                                    4
Sergeant    Miller      ultimately       arrested          Bennett       for    stalking      and

five     counts   of    destruction           of     property.       Miller’s       on-going

investigation       quickly     revealed           that    Bennett       had     pled   guilty

earlier in 2008 to a misdemeanor crime of domestic violence

against     his    ex-wife,        and       that     he     had     been       dishonorably

discharged from the military after convictions for other felony

offenses targeting another romantic interest. Miller suspected

that    Bennett’s      record     of    convictions          made    his       possession     of

firearms    unlawful,       and      also     likely        prohibited         Bennett     from

working lawfully at Beckley Drilling and Blasting, where he was

employed    at    the    time,         regularly          handling       explosives      as    a

blaster.

       Miller interviewed Khurshid about Bennett’s firearms and

she reported that he had left a large gun and a safe, which she

believed    contained       more       firearms,      at     the     residence.         Shortly

thereafter, Miller executed a search warrant at the home and

removed a .22 caliber handgun, ammunition, and two safes. Still

later,    searches      pursuant        to    warrants        issued       for    the    safes

revealed the four firearms named in the indictment in this case.

       As already mentioned, Bennett pled guilty. The presentence

report (PSR) calculated a Base Offense Level of 20, enhanced by

two levels for the number of firearms involved in the offense

(3-7)     and     reduced       by      three        levels        for     acceptance         of

responsibility, for a total Offense Level of 19. Bennett’s prior

                                              5
convictions resulted in five criminal history points, i.e., a

Criminal History Category of III. Thus, the PSR calculated a

guideline imprisonment range of 37-46 months. The PSR indicated

that    Bennett     had    a    consistent       work       history,   despite     his

recurrent trouble with the law, in which he earned as much as

$34,000 in 2008 at Beckley Drilling and Blasting.

       On March 17, 2011, Bennett appeared before the district

court     for    sentencing.      After        some     discussion     of      factual

objections to the PSR that were all resolved without substantial

conflict, Bennett         was sentenced at            the top of the guideline

range, 46 months of imprisonment, followed by three years of

supervised release. The court imposed no fine or restitution.

The district court imposed, however, as special conditions of

supervised release that Bennett “be prohibited from incurring

new credit charges or opening additional lines of credit without

prior approval of the probation officer,” and that he “provide

the     probation     officer     access       to     any     requested      financial

information.” J.A. 66.

       Bennett’s     counsel     promptly       objected       that    the     special

conditions were improper because there was “no indication that .

. . his financial situation . . . was the basis for this crime.”

J.A. 69. She further argued that terms of supervised release are

“supposed to be those only that are necessary,” and that the

“credit    and      financial    terms        certainly,      simply      don’t   have

                                          6
anything to do with Mr. Bennett and his situation.” J.A. 70. The

court acknowledged the objection but overruled it, explaining

that “it’s important for any supervising probation officer to

know   what     funding       this     gentlemen            has     available        to    him     for

possession of firearms and any other matter that would cause or

present a situation of danger to someone else . . . .” J.A. 70.

The prosecutor declined the court’s invitation to offer a view

of the matter on behalf of the Government. Bennett has timely

appealed the narrow question of whether the district court’s

imposition      of    the     special        conditions            of     supervised        release

comport with 18 U.S.C. § 3583.

                                                 II.

       We    find     Bennett’s       challenge             to    the     special     conditions

meritorious.         The    discrete        question         before        us   is    whether        a

prohibition      against         “incurring           new   credit      charges       or    opening

additional      lines       of      credit       without          prior    approval        of      the

probation officer,” and a requirement to “provide the probation

officer access to any requested financial information,” J.A. 66,

is lawful as applied to Bennett. “District courts ‘have broad

latitude’      with        regard     to     special         conditions         of    supervised

release,      and     we     review     the       court’s          decision     to        impose     a

condition of supervised release for an abuse of discretion.”

United      States    v.    Holman,        532    F.3d       284,    288    (4th      Cir.      2008)



                                                  7
(citing United States v. Dotson, 324 F.3d 256, 259, 260 (4th

Cir. 2003)).

      Federal      law   provides      that    supervised            release       include

certain   mandatory        conditions,       such    as        the    prohibition      on

committing    a    state    or   federal      offense      during       the    term,    or

possessing    a    controlled     substance.        18    U.S.C.      §   3583(d).      In

addition to the enumerated mandatory conditions, a sentencing

court may impose a further condition:

      to the extent that such condition

      (1) is reasonably related to the factors set forth in
      §§ 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)

Id. The “factors” and “purposes” that constitute the parameters

set out above include: “the nature and circumstances of the

offense and the history and characteristics of the defendant,” §

3553(a)(1);       “the   need    for   the     sentence         imposed       to   afford

adequate deterrence to criminal conduct,” § 3553 (a)(2)(B); “to

protect the public from further crimes of the defendant,” § 3553

(a)(2)(C); and “to provide the defendant with needed educational

or   vocational     training,     medical     care,       or    other     correctional

treatment in the most effective manner,” § 3553 (a)(2)(D).



                                         8
      Bennett argues that the special conditions imposed in this

case are unwarranted and unjustified, amounting to an abuse of

the district court’s discretion, because they fail to meet any

of the standards set out in 18 U.S.C. § 3583(d) by being (1)

unrelated to a permitted purpose for restrictions, (2) a greater

restriction     on    his    liberty      than    is    necessary        to    achieve

permitted     purposes      and     (3)   inconsistent         with    the    guidance

provided by the Sentencing Commission. The Government argues in

response that Bennett’s circumstances, “including [a] history of

violence,   mental     illness,      drug     abuse    and   non-compliance          with

authority,”    support      the     financial    conditions        imposed      by    the

court’s proper exercise of discretion. Appellee’s Br. 9.

      Neither Bennett nor the Government points to any case law

from this Circuit that speaks directly to the issue before the

Court.   Instead,     Bennett       relies    heavily     on    United       States    v.

Brown, 402 F.3d 133 (2d Cir. 2005), in which a defendant with

multiple    convictions      for    the   sale   and    distribution          of   crack

cocaine was subject to financial requirements almost identical

to   Bennett’s.      The    Brown    court     affirmed      the      condition      that

financial records must be made available to a probation officer

on request, even where the defendant’s crime was not financial

and no fine or restitution was imposed, on the grounds that

“monitoring    an    offender's       finances    deters       the     offender      from

returning to a life of crime by forcing him to account for his

                                          9
income.” Id. at 137. The court anchored this ruling to the fact

that Brown’s crimes, while not financial, were directly related

to his ability to support himself:

       Brown’s criminal record and sparse employment history
       demonstrate his pronounced proclivity to support
       himself through drug dealing. In light of his history,
       the Probation Office needs effective monitoring tools
       to ensure that Brown does not return to drug dealing
       after his release from prison. Thus, contrary to
       Brown’s second argument-that Condition 4 is not
       related   to   his  offense   and  characteristics-the
       condition stems directly from his criminal and
       employment history.

Id.

       Despite the nexus between Brown’s crimes and his financial

situation, the Brown court nevertheless vacated the condition

that   he   be   prohibited   from   opening   lines   of   credit   without

permission from a probation officer. The court reasoned that

Brown’s offense and circumstances did not warrant the condition

because his offense did not “involve the incursion of debt,” nor

was his debt “unusually large.” Id. at 138. In addition, the

court noted that the condition was a “greater deprivation of

liberty than reasonably necessary” because use of credit was

“likely . . . necessary to facilitate his reintegration into

society after his release from prison.” Id.

       The Government seeks to distinguish Brown by pointing to

Bennett’s “unique and troubling history.” Appellee’s Br. 15. It

directs our attention to United States v. Camp, 410 F.3d 1042


                                     10
(8th Cir. 2005), and United States v. Behler, 187 F.3d 772 (8th

Cir.    1999),       as   examples      of   cases       where    courts     have    upheld

financial conditions for supervised release for non-financial

offenses, where no fine or restitution was imposed.

       We agree with Bennett, however, that Camp and Behler are

materially distinguishable from the instant case. In Camp, the

district       court      imposed      financial     conditions       to     specifically

address the fact that the defendant was “in arrears” on child

support payments and had a “sketchy employment history.” Camp,

410     F.3d    at     1044.      In    Behler,     the     court    found       financial

conditions proper where “money and greed were at the heart of

[the defendant’s] drug distribution offenses . . . .” Behler,

187 F.3d at 780. Both cases, then, involved defendants whose

financial      issues      were     apparent      from    the    record    and      posed   a

reasonable threat to their capacity to avoid unlawful conduct

after release from prison during the term of supervised release.

       In contrast, Bennett’s offense of conviction, possessing a

firearm as a prohibited person, and all but one of his many

prior     convictions        and       arrests,     relate       exclusively        to   his

dysfunctional and indeed violent relationships with women, not

money.      The        record       indicates        that        Bennett’s       financial

circumstances have played no primary (or even identifiable) role

in his criminal activity; money was not a motive for any his

acts,    nor    were      the     methods    of    his    conduct     related       in   any

                                             11
particular way to a lack or abundance of personal wealth. The

special conditions imposed by the district court are therefore

unrelated       to   Bennett’s         history     and     characteristics.       See     18

U.S.C. § 3583(d)(1) (cross-referencing 18 U.S.C. § 3553(a)(1)).

       The special conditions are also unlikely to deter or, in

any    direct    sense,     protect       the     public    from     future     crimes    by

Bennett because Bennett’s behavior in the past does not suggest

that    money    has      played    any     meaningful       role    in   his    criminal

conduct. Id.         (cross-referencing 18 U.S.C.                  § 3553(a)(2)(B) and

(C)). The most compelling deterrence rationale for the financial

conditions       imposed       here       relates    to      Bennett’s        history     of

harassing,       intimidating,          following,        and   abusing       women.     The

district       court    noted      that    financial        monitoring    would        deter

Bennett from financing the purchase of firearms in the future

and “any other matter that would cause or present a situation of

danger to someone else. . .” J.A. 70. Although these dangerous

situations were not elaborated, Bennett’s history perhaps raised

concerns for the district court that he would use his earnings

to    travel    to     stalk     his    current     or     future    partners,     or     to

otherwise finance his unlawful conduct towards them.

       Without minimizing the pattern of harmful behavior that is

clearly indicated by the record and was properly taken into

consideration        by    the     district       court     when    determining        other

aspects of Bennett’s sentence, we agree with Bennett that this

                                             12
rationale for the special conditions of supervised release has

no apparent limits; it could “apply in every case.” Appellant’s

Br. 11. The scenarios in which Bennett’s income could contribute

to unlawful acts are almost effortless to imagine – in part

because    money      can,    potentially,           facilitate         any     act    that         any

person undertakes. To the degree that money is the mechanism by

which nearly every crime is carried out (drugs are purchased,

tools for burglary are purchased, etc.), financial monitoring

could always theoretically prevent or deter criminal activity by

preventing an offender from using his or her funds to purchase

the    means     of   crime.       However,         the    provisions         of      18       U.S.C.

§ 3583(d)      are    explicit        limits        on    precisely       such        expansive,

generalized      control       over      a    released          offender’s      conduct.            The

statute requires that conditions relate to specific aspects of

an    offender’s      circumstances,           and       while     Bennett      has        a   well-

documented history of violence against women there is simply no

evidence    in    the    record       that     oversight          of   Bennett’s        finances

will, in particular, reasonably deter this behavior.

       Where     financial         conditions             are     so     unrelated             to     a

defendant’s       past       and   reasonably             likely       future      acts,        they

constitute a greater deprivation of liberty than is reasonably

necessary to achieve the purposes of supervised release that

have    been     articulated        by       Congress.      18     U.S.C.       § 3583(d)(2).

Finally, the condition also fails to meet the requirement of

                                               13
§ 3583(d)(3), i.e., consistency with the policy statements of

the Sentencing Commission. The Sentencing Guidelines note that

financial monitoring is appropriate where the court has imposed

“an order of restitution, forfeiture, or notice to victims, or

[has]   order[ed]      the    defendant       to   pay     a   fine.”    U.S.S.G.

§ 5D1.3(d)(3).     While     the   Guidelines      note    further      that   this

condition “may otherwise be appropriate in particular cases,”

id. § 5D1.3(d), the record in the instant case, as explained

above, does not provide an adequate basis to so conclude.

                                       III.

    For the foregoing reasons, we conclude that the district

court abused its discretion in imposing the challenged financial

conditions    during       Bennett’s     term      of     supervised      release.

Accordingly, we vacate the judgment and remand this case for the

entry   of   an   amended     judgment       striking     those   conditions     of

supervised release.



                                                           VACATED AND REMANDED




                                        14
