                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              JUL 31 2001
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 01-5017
 TIMOTHY JOSEPH JOST,                                  (D.C. No. 98-CR-1-K)
                                                            (N.D.Okla.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendant Timothy Jost appeals from an order of the district court denying his

pro se motions to remove or modify a special condition of supervised release. We


      *
        This order and judgment is not binding precedent, except under the doctrines of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 10th Cir. R. 36.3.
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

       Between January and April 1998, three related criminal cases were filed against

defendant charging him with a total of eighteen counts of mail fraud. All of the counts

arose out of a nearly three-year scheme devised and implemented by defendant to

induce elderly victims to “invest” in excess of $1.4 million in pay telephones.

Defendant subsequently pled guilty to seven of the counts and, in September 1998, was

sentenced to forty-eight months’ imprisonment plus three years of supervised release.

As a condition of supervised release, the district court prohibited defendant from

engaging in any sales-related employment, any employment which required him to

invest money for others, or any employment which required him to render investment

advice. The district court further ordered that defendant receive approval from the

probation office for all employment during the period of supervised release.

       On March 29, 2000, and again on October 23, 2000, defendant filed pro se

motions asking the district court to remove or substantially modify the employment-

related special conditions of supervised release. The district court denied defendant’s

motions in a written order issued January 5, 2001. We review the district court’s

denial of defendant’s motions for abuse of discretion. See United States v. Pugliese,

960 F.2d 913, 915 (10th Cir. 1992) (“Conditions of supervised release, as ordered by

the district court, are reviewed for abuse of discretion.”).

       The government contends this court lacks jurisdiction to consider this appeal

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because defendant had failed to object to the special conditions of supervised release at

sentencing, on direct appeal, or by a timely filed petition under 28 U.S.C. § 2255. In

Pugliese, this court addressed a motion to modify a special condition of supervised

release filed by a pro se defendant pursuant to Federal Rule of Criminal Procedure

32.1(b), while the defendant was still incarcerated, but after sentencing. (See also Fed.

R. Crim. P. 32(1)(b), Advisory Committees Notes, 1979 Addition, suggesting the

probationer should have recourse to the sentencing court for clarification and/or

modification of conditions of probation to respond to changes in the probationer's

circumstances, and further noting resolution of the meaning of a condition should be

available prior to the probationer's violation of the condition). We also apply the “mail

box” rule in response to the government's contention that defendant's notice of appeal

was untimely filed and conclude the appeal is timely.

      District courts are authorized by statute to impose occupational restrictions as a

condition of supervised release, as long as the restrictions “involve[] no greater

deprivation of liberty than is reasonably necessary” to promote criminal deterrence,

protection of the public, and effective correctional treatment. 18 U.S.C. § 3583(d).

Such restrictions may include prohibiting a defendant “from engaging in a specified

occupation, business, or profession bearing a reasonably direct relationship to the

conduct constituting the offense.” 18 U.S.C. § 3563(b)(5). In order to impose such

restrictions, a district court must make two threshold determinations. U.S.S.G.

                                            3
§ 5F1.5(a) (implementing occupational restrictions authorized by 18 U.S.C.

§ 3583(d)). First, the court must determine that “a reasonably direct relationship

existed between the defendant’s occupation, business, or profession and the conduct

relevant to the offense of conviction.” Id. Second, the court must determine that

“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.” Id.

If a district court finds the existence of the threshold conditions and decides to impose

employment-related restrictions on a defendant, it “shall impose the condition for the

minimum time and to the minimum extent necessary to protect the public.” Id. § (b).

       After examining the record on appeal, there is little question that the threshold

requirements for imposing the special conditions were satisfied. During the sentencing

hearing, the district court stated on the record:

               This is a terrible situation, and this is a defendant who apparently
       has had a long career in bilking and stealing from these type of victims,
       only interrupted occasionally by being caught. I have no sense that it
       won’t happen again as soon as he gets out of prison. There’s nothing that
       I read in this presentence report that gives me any hope that this won’t
       continue to go on and on.

ROA, Vol. III at 45. Likewise, in denying defendant’s motions to remove or modify

the special conditions of supervised release, the district court stated:

             The record presented at sentencing established that defendant had
       engaged in a multi-state scheme of defrauding elderly persons with his

                                             4
       fraudulent payphone concessions. Moreover, the acts resulting in these
       convictions came while he was still on probation supervision for doing
       the same thing in two counties in Texas.

Id., Vol. I, Doc. 24 at 2. In our view, these statements demonstrate that the district

court made the determinations required by § 5F1.5(a). Further, nothing in the record

on appeal persuades us that these determinations were erroneous.

       The remaining question is whether the district court complied with the

requirements of § 5F1.5(b) in imposing the special conditions, i.e., whether it imposed

the conditions “for the minimum time and to the minimum extent necessary to protect

the public.” Because defendant does not challenge the length of the special conditions,

we focus solely on the extent of the conditions. On this point, defendant contends that

the restriction on “sales-related employment” is overly broad and could conceivably

prohibit him from taking any job that involves the sale of goods or services. As an

extreme example, defendant contends that he “would technically be in violation of his

supervised release condition” if he were to “sell[] hamburgers at a local restaurant.”

Defendant’s Opening Br. at 11.

       In denying defendant’s motions to remove or modify the special conditions of

supervised release, the district court stated it could “conceive of possible occupations

which defendant might seek as to which a ban on all ‘sales-related employment’ might

be unduly restrictive.” ROA, Vol. I, Doc. 24 at 2-3. Accordingly, the district court

advised defendant that he would be permitted to “seek approval of any future

                                            5
occupation from the United States Probation Office and ultimately th[e] Court,” and

that “[t]he decision w[ould] be made on a particularized basis.” Id. at 3. Given this

ruling, we are persuaded that the special conditions imposed by the district court are in

compliance with § 5F1.5(b), and there was no abuse of discretion on the part of the

district court.

       AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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