                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

USA v. Smith
Precedential or Non-Precedential: Precedential

Docket No. 05-2697




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                                                 PRECEDENTIAL
           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 05-2697


               UNITED STATES OF AMERICA
                                 v.
                 SAMUEL DAVID SMITH, III,
                                                  Appellant


          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                  (D.C. Criminal No. 99-cr-00147)
          District Judge: Honorable Donetta W. Ambrose


         Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                         March 31, 2006
                               ____

Before: McKEE, BARRY, and VAN ANTWERPEN, Circuit Judges.

                       (Filed April 19, 2006 )

                               _____

                    OPINION OF THE COURT


Lisa B. Freeland, Federal Public Defender
Karen S. Gerlach, Assistant Federal Public Defender
Renee Pietropaolo, Assistant Federal Public Defender
Office of the Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
        Counsel for Appellant
Mary Beth Buchanan, United States Attorney
Laura S. Irwin, United States Attorney
Michael Leo Ivory, Assistant United States Attorney
Office of the United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
        Counsel for Appellee

VAN ANTWERPEN, Circuit Judge.

        Appellant Samuel David Smith, III, appeals from an order
modifying the conditions of his term of supervised release and
denying his motion to reconsider his petition to allow gainful
employment during his supervised release. At issue is an
occupational restriction imposed on Smith after sentencing
which barred him from employment with an attorney or law firm
for the three-year duration of his supervised release. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

                                 I.

        Appellant Smith pleaded guilty in September, 1999 to
wire fraud in violation of 18 U.S.C. § 1343. The circumstances
giving rise to the wire fraud conviction may be briefly
summarized as follows. In 1994, Smith started a business named
Litigation Support Services, holding himself out as a legal
consultant with purported connections to the Motorola
Corporation. In this capacity, he orchestrated a scheme in 1994
wherein he obtained some $589,750 from four individuals by
misrepresenting his ability to broker for them a deal with
Motorola. The fraudulent deal involved the purported purchase
and sale of approximately 8,000 pagers and 500 cellular phones.
Smith perpetrated the scheme by, among other things, making
fraudulent representations to induce the victims to wire money,
drafting a fake purchase order, and forging a letter on Motorola
letterhead purporting to be from Motorola officials. After
pleading guilty, Smith was sentenced to 41 months incarceration
and three years of supervised release. At the time Smith was
sentenced, he had no offer to work for an attorney or law firm,
and the District Court did not impose an occupational restriction
on his term of supervised release.


                                 2
        In May, 2004, in preparation for Smith’s release from
federal incarceration, he was transferred from a federal
correctional institution to a community corrections center. At
the time of this release from the federal correctional institution
and transfer to the community corrections center, local attorneys
who knew Smith offered to hire him during his period of
supervised release. This offer was considered, but ultimately
rejected, by Smith’s program review team, which consisted of a
Bureau of Prisons representative, two probation officers, and
staff of the community corrections center.

       In July, 2004, Smith, through the attorneys who had
offered to hire him in May, petitioned the District Court to allow
the employment. The District Court denied the petition. Smith
began serving his term of supervised release in September, 2004,
and subsequently filed a motion for reconsideration of the denied
petition.

       At about the same time, the government petitioned the
District Court to modify Smith’s term of supervised release to
impose an occupational restriction barring Smith from seeking or
obtaining any type of employment with a law firm or any other
entity where Smith would have access to personal information of
legal or business clients.

       After a consolidated hearing on February 17, 2005, the
District Court denied Smith’s motion to reconsider and granted
the government’s petition to modify Smith’s term of supervised
release. However, the District Court limited the scope of the
government’s proposed restriction, banning Smith only from
employment related to attorneys and/or law firms.

       At the February hearing, the government established, and
Smith did not dispute, previous convictions in the years 1991
through 1993 for the following crimes: (a) tampering with
records, wherein Smith had prepared a fraudulent court order
and a fraudulent letter, with a forged attorney’s signature on the
attorney’s letterhead, and forwarded it to the Pennsylvania Board
of Probation and Parole as well as the Allegheny County Court
of Common Pleas; (b) altering, forging, or counterfeiting
documents, wherein Smith had engaged in the unauthorized

                                3
practice of law by holding himself out to others as an attorney
and collecting legal fees (including a $1,000 retainer and
$17,500 in legal and investigative fees); (c) intimidation of a
witness/victim and obstructing the administration of law,
wherein Smith had threatened the victim of an individual to
whom Smith had represented himself to be an attorney; (d)
tampering with records or identification, wherein Smith falsified
a court order with the intent to deceive the Pennsylvania Board
of Probation and Parole; and (e) theft by deception, wherein
Smith withheld $25,700 from another by creating the false
impression that he was an attorney. At least one of these
convictions involved identity theft when Smith used a driver’s
license renewal application to obtain a driver’s license in the
name of an attorney working in the law office where Smith was
also employed.1

                                II.

       As a threshold matter, we pause to confirm our standard
of review. To the extent we are reviewing the District Court’s
denial of Smith’s motion to reconsider, our review is plenary
where the denial was based on “the interpretation and
application of a legal precept.” Koshatka v. Phila. Newspapers,
Inc., 762 F.2d 329, 333 (3d Cir. 1985). Otherwise, we review
such denials for abuse of discretion. Id. Absent the overlay of
Smith’s challenge to his denied motion to reconsider, we review
challenges to the imposition of a special condition of supervised
release, as well as a district court’s decision to modify the terms
of release, for abuse of discretion. See United States v. Loy, 237
F.3d 251, 256 (3d Cir. 2001); see also United States v. Ristine,
335 F.3d 692, 694 (8th Cir. 2003); United States v. Bartsma, 198
F.3d 1191, 1200 (10th Cir. 1999) (“District courts enjoy broad
discretion in fashioning conditions of supervised release.”).


       1
         The record also shows Smith was previously convicted of
voluntary manslaughter, for choking a person to death, and of
armed robbery, for using a gun to rob a grocery store. Smith was
paroled from the armed robbery conviction in approximately 1991
and thus committed each of the above fraud offenses while he was
on parole.

                                 4
Finally, we observe that “[i]n United States v. Booker[, 543 U.S.
220 (2005)], the Supreme Court directed appellate courts to
review sentences for reasonableness, stating this review applied
‘across the board.’” United States v. Cooper, 437 F.3d 324, 326
(3d Cir. 2006). This “review is [to be] guided by the factors set
forth in 18 U.S.C. § 3553(a).” Id. at 327. The factors of §
3553(a), of course, are to be considered in imposing conditions
of supervised release. 18 U.S.C. § 3583(d); see also Loy, 237
F.3d at 256.

       As we recently stated in Cooper, “[t]o determine if the
court acted reasonably in imposing the resulting sentence, we
must first be satisfied the court exercised its discretion by
considering the relevant factors.” Cooper, 437 F.3d at 329
(summarizing the factors set forth at 18 U.S.C. § 3553(a)).
While “[t]he record must demonstrate the trial court gave
meaningful consideration to the § 3553(a) factors,” id., “[t]he
court need not discuss every argument made by a litigant if an
argument is clearly without merit.” Id. “Nor must a court
discuss and make findings as to each of the § 3553(a) factors if
the record makes clear the court took the factors into account in
sentencing.” Id. Finally, as we stated in Cooper, “[i]n addition
to ensuring a trial court considered the § 3553(a) factors, we
must also ascertain whether those factors were reasonably
applied to the circumstances of the case. In so doing, we apply a
deferential standard, the trial court being in the best position to
determine the appropriate sentence in light of the particular
circumstances of the case.” Id. at 330.

       With these precepts in mind, we turn to the arguments
Smith advances on appeal.

                                III.

       Citing 18 U.S.C. § 3583(e), Smith first argues the District
Court lacked the authority to modify the conditions of his release
absent changed circumstances. Smith argues his circumstances
did not change after his sentencing on September 9, 1999, but
that proposition is contradicted by the record.

       Smith’s petition to allow gainful employment, filed in

                                 5
July, 2004 by the attorney who proposed to hire him, shows the
employment offer was not made prior to, or at, sentencing.
Rather, according to Smith’s own petition, the attorney did not
make the offer until May, 2004, “at the time of [Smith’s] release
from imprisonment” from the federal corrections institution and
transfer to the community corrections facility.

        Because nothing in the record is to the contrary of the
statement set forth in Smith’s own petition, the May, 2004 offer
of employment by the attorney presented a new, unforseen
circumstance allowing modification pursuant to § 3583(e). See,
e.g., United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)
(“Section 3583(e) provides the district court with the retained
authority to . . . modify terms and conditions . . . in order to
account for new or unforeseen circumstances . . . . that require a
longer term or harsher conditions of supervised release in order
to further the general punishment goals of Section 3553(a).”);
see also United States v. Miller, 205 F.3d 1098, 1101 (9th Cir.
2000) (noting that § 3583(e) “‘recogniz[es] that the sentencing
court must be able to respond to changes in the [defendant's]
circumstances’”) (quoting United States v. Truss, 4 F.3d 437,
439 (6th Cir. 1993)). Smith’s first contention is therefore
without merit.

       Smith next argues the District Court’s imposition of the
occupational restriction was improper because it did not bear a
reasonably direct relationship to the offense of conviction and
because it exceeded the minimum scope and duration necessary
to protect the public. We disagree.

        District courts are authorized by statute to impose
occupational restrictions as a condition of supervised release,
provided 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)(2). Such restrictions may
include barring a convicted individual “from engaging in a
specified condition, business, or profession bearing a reasonably
direct relationship to the conduct constituting the offense.” 18
U.S.C. § 3563(b)(5). To impose such prohibitions or
restrictions, a district court must make two threshold

                                 6
determinations. See U.S.S.G. § 5F1.5(a) (implementing
occupational restrictions authorized by 18 U.S.C. § 3583(d)).
First, a district 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. If this requirement is satisfied, a district court
must then determine whether “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 conduct similar to that for which the
defendant was convicted.” Id. If a district court makes both
determinations and imposes an occupational prohibition or
restriction, it must be for “the minimum time and to the
minimum extent necessary to protect the public.” Id. § 5F1.5(b).
Thus, as we stated in Loy, 237 F.3d at 256:

       A condition is within the court’s discretion if two criteria
       are met. First, the condition must be reasonably related to
       the factors set forth in 18 U.S.C. § 3553(a)(1) & (2)(B)-
       (D). Accordingly, in imposing conditions of supervised
       release, the sentencing court may consider: (1) the nature
       and circumstances of the offense and the history and
       characteristics of the defendant; and (2) the need for the
       condition to deter future criminal conduct, protect the
       public, and provide the defendant with necessary training,
       medical care, or other correctional treatment . . . . Second,
       a condition must involve no greater deprivation of liberty
       than is reasonably necessary to achieve the deterrence,
       public protection and/or correctional treatment for which
       it is imposed.

Id. (citations omitted); see also United States v. Evans, 155 F.3d
245, 248-49 (3d Cir. 1998) (same).2


       2
        The specific factors to be considered pursuant to 18 U.S.C.
§ 3553(a)(1) & (2)(B)-(D) are:
      (1) the nature and circumstances of the offense and
      the history and characteristics of the defendant;
      (2) the need for the sentence imposed --
      ...

                                 7
       Here, we have reviewed the modified condition of
supervision as well as the record on appeal. We conclude that
the occupational restriction in this case is reasonably related to
the above statutory goals, is consistent with commission policy,
and is narrowly tailored such that the liberty deprivations are no
greater than is reasonably necessary to achieve the deterrence,
public protection, and/or correctional treatment for which it is
imposed. See 18 U.S.C. § 3583(b); see also Loy, 237 F.3d at
256.

       First, the sentencing record shows the District Court
reviewed the guidelines, addressed the required factors, and
found there existed “a litany of criminal offenses and the kind of
offense that is involved in this case.” The District Court further
found that the current offense and the past offenses were
“serious” and that “the victims of the[] offenses are devastated
by their losses.” The District Court then reiterated that it had
considered “all the facts and all the circumstances” before
sentencing Smith to 41 months incarceration, 3 years supervised
release, and restitution.3



       (B) to afford adequate deterrence to criminal
       conduct;
       (C) to protect the public from further crimes of the
       defendant; and
       (D) to provide the defendant with needed
       educational or vocational training, medical care, or
       other correctional treatment in the most effective
       manner.

18 U.S.C. § 3553(a)(1) & 2(B)-(D). Before a court can modify the
conditions of a release, it must hold a hearing pursuant to
Fed.R.Crim.P. 32.1(c). That hearing occurred here on February 17,
2005.
       3
         Neither Smith nor his attorney availed themselves of the
opportunity provided by the District Court to make a statement on
Smith’s behalf during sentencing. As discussed above, Smith’s
offer for employment during supervised release would not occur
for several years. As such, there was no occupational restriction

                                 8
       Second, in its May 9, 2005, memorandum order imposing
the occupational restriction, the District Court stated:

       As to [§ 5F1.5](a)(1), there is no doubt that there is
       a reasonably direct relationship between
       Defendant’s employment as a paralegal in a law
       office and his conduct in the offense for which he
       is serving a period of supervised release.
       Therefore, the question for me to decide is whether
       there is reason to believe Defendant will continue
       to engage in similar unlawful conduct, making it
       necessary to impose restrictions to protect the
       public. The litany of offenses similar to the
       current offense committed by Defendant and set
       forth above lead me to reasonably conclude that
       job restrictions are reasonably necessary to protect
       the public from the Defendant. While I have every
       confidence in the good intentions and integrity of
       [the attorneys offering to hire Smith], I am also
       aware that they are very busy practitioners and that
       no busy attorney can supervise another every
       minute of the day. While Defendant has paid the
       price for his past conduct, his history does not
       demonstrate much confidence. I conclude that a
       job restriction is appropriate and reasonably
       necessary to protect the public . . . . The term of
       supervised release . . . is modified to impose an
       occupational restriction forbidding Defendant from
       seeking or obtaining any type of employment with
       an attorney or law firm.

May 9, 2005, Mem. Order at 4-5. “Taken as a whole, the record
shows the court adequately considered the § 3553(a) factors and
reasonably applied them to the circumstances presented in
[Smith’s] particular case.” Cooper, 437 F.3d at 332.




argument from Smith or his counsel that the District Court was
obligated to address at the time of sentencing. See Cooper, 437
F.3d at 332.

                                 9
        Moreover, we conclude the District Court did not abuse
its discretion in fashioning the duration and scope of the
restriction imposed here. First, while the government sought a
restriction forbidding any type of employment with a law firm or
any other entity where Smith would have access to the personal
information of legal or business clients, the District Court
narrowed Smith’s restriction to cover only the legal profession,
as discussed above. Second, Smith has failed to demonstrate that
the restriction’s scope or duration is based on “a clearly
erroneous finding of fact, an erroneous legal conclusion, or an
improper application of law to fact.” Roxbury Condo. v. Anthony
S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003). To the
contrary, as the District Court observed, the conduct relevant to
Smith’s wire fraud conviction—his employment in a law-related
business, his ability to hold himself out as a legal consultant, his
decision to draft a fraudulent purchase order, his decision to
forge a letter, and his decision to trade on his position in order
defraud members of the lay public—is plainly related to the
employment sought here, whether it be in the capacity of a
paralegal, secretary, or runner. All would afford Smith the
opportunity to fraudulently trade on his association with
attorneys to the detriment of others. In addition, “the history and
characteristics” of the defendant, summarized above, amply
confirms the need for the restriction imposed by the District
Court here. Loy, 237 F.3d at 256 (citations omitted).

        Finally, in its May 9, 2005, memorandum order, the
District Court appropriately addressed Smith’s argument that the
restriction here “involve[s] [] greater deprivation of liberty than
is reasonably necessary to achieve the deterrence, public
protection and/or correctional treatment for which it is imposed.”
Id. As discussed, the restriction was narrowly tailored to cover
only positions within the legal profession, and we conclude
Smith has failed to carry his burden of proving the scope and
duration of the occupation restriction was unreasonable in this
respect. See Cooper, 437 F.3d at 332 (“appellants have the
burden of demonstrating unreasonableness”).

                                IV.

       We have considered all other arguments made by the

                                10
parties on appeal, and conclude that no further discussion is
necessary. For the foregoing reasons, we affirm the District
Court’s May 9, 2005, Order denying appellant Smith’s Motion
for Reconsideration and granting the government’s Petition for
Modification of Conditions.




                               11
