                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                        PUBLISH
                                                                  February 22, 2007
                      UNITED STATES CO URT O F APPEALS           Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

                 Plaintiff-Appellee,
       v.                                         Nos. 05-1288 and 05-1371
 R UIA N D U ,

           Defendant-Appellant.
 _________________________
 U N ITED STA TES O F A M ER ICA,

                 Plaintiff-Appellee,
       v.                                               No. 06-1053
 RA CH EL CHAV EZ,

                 Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                     FOR T HE DISTRICT OF COLORADO
            (D .C . N O. 04-C R -200-PSF and NO. 04-CR-340-W DM )


John T. Carlson, Research and Writing Attorney (W arren R. W illiamson,
Assistant Federal Public Defender, with him on the briefs) Office of the Federal
Public Defender, Denver, Colorado, for Appellants.

Peter H. W alsh, Assistant United States Attorney (Jerry N. Jones, Assistant
United States Attorney, with him on the consolidated brief for Case Numbers 05-
1288 and 05-1371, and on the brief for 06-1053) Office of the United States
Attorney, Denver, Colorado, for Appellee.
Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.


T YM K O VIC H, Circuit Judge.


      This case requires us to consider the scope of our decision in United States

v. Souser, 405 F.3d 1162 (10th Cir. 2005), as applied to a new employment

verification policy for federal probationers established by the Colorado probation

office. In Souser, we held that an earlier policy requiring probationers “to inform

their employers of their criminal history unless they can convince their probation

officer and the sentencing judge that employer notification is not necessary” was

an occupational restriction under § 5F1.5 of the United States Sentencing

Guidelines (U SSG). Id. at 1167. Because the policy was an occupational

restriction, the probation office could not enforce the policy without an

individualized assessment of its need for each probationer. In response to our

decision in Souser, Colorado adopted a new policy. The new policy— while not

mandating notification— requires probation officers to verify the employment of

persons on probation by contacting their employers.

      Two probationers, Ruian Du and Rachel Chavez, independently challenge

the employment verification policy, arguing that it violates Souser because it also

imposes an occupational restriction on probationers under § 5F1.5. Their

arguments w ere rejected by two different district courts, and defendants’ timely

appeals were consolidated in this case.

                                          -2-
      H aving jurisdiction under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291, w e

find that an employment verification policy does not constitute an occupational

restriction under the federal sentencing guidelines and therefore AFFIRM .

                                   I. Background

      Ruian Du pleaded guilty to one count of destruction of mail by a United

States Postal Service employee in violation of 18 U .S.C. § 1703(a). As a

condition of his probation, the district court required him to obtain lawful

employment. He complied by accepting a job as a school bus driver for the

Douglas County School District.

      Rachel Chavez pleaded guilty to one count of making false statements to

the government in violation of 18 U.S.C. § 1001. As a condition of her probation,

the district court required her to obtain lawful employment. She obtained

employment as a driver for elderly and handicapped individuals. 1

      The probation office’s employment verification policy applied to both

defendants. They each sought a stay of the application of the policy in district

court. Du argued that it constituted an occupational restriction in violation of

Souser. The district court held otherwise, finding that the verification policy

substantively differed from the notification policy at issue in Souser and therefore



      1
        Originally, Chavez was subjected to the employer notification policy.
She alleges this notification resulted in the loss of one job and several job offers.
She did not notify her current employer of her conviction and in fact actively
concealed it on her job application.

                                         -3-
did not constitute an occupational restriction. A probation officer subsequently

contacted the school district to verify Du’s employment.

       A different district court judge also rejected Chavez’s challenge for slightly

different reasons, finding that the policy is “entirely consistent” with USSG.

§ 5F1.5, and that it would be detrimental to the supervisory obligations of the

probation office to preclude monitoring of probationers’ employment status. R.

Vol. II, at 35.

                                   II. Discussion

       Federal statutes and the sentencing guidelines allow district courts to

establish reasonable conditions as a part of probation or supervised release. For

instance, 18 U.S.C. § 3563 provides a litany of mandatory and discretionary

conditions, including: (1) meeting family support and restitution obligations,

§ 3563(b)(1)–(2); (2) finding suitable employment and performing it

conscientiously, § 3563(b)(4); (3) refraining from visiting undesirable places or

people, § 3563(b)(6); (4) agreeing to visits by probation officers at any time or

place, § 3563(14); and (5) most relevant to these appeals, adhering to

“occupational restrictions” by refraining from certain types of employment,

§ 3563(b)(5).

       Federal probation officers, in turn, monitor a probationer’s compliance with

the terms and conditions of probation under the authority granted in 18 U.S.C.

§ 3603. That statute requires probation officers, among other things, to (1) keep

                                          -4-
abreast of a probationer’s living and working conditions, (2) keep a record of a

probationer’s work, and (3) report periodically to the sentencing court the

probationer’s compliance with the conditions of release. § 3603(2)–(3), (5), (7).

      These various statutory requirements are implemented at sentencing

through a variety of provisions in the Guidelines. Chapter 5B, for example,

covers probation conditions generally, and includes a provision that can mandate

disclosure of a probationer’s criminal record to third parties. § 5B1.3(c)(13).

Chapter 5F covers sentencing options and requires specific findings before

imposing any employment conditions that are considered “occupational

restrictions” under § 3563(b)(5).

      A. Conditions on Employment

      Occupational restrictions under § 3563(b)(5) can restrict a probationer’s

employment in two ways: a court may require that a probationer (1) “refrain . . .

from engaging in a specified occupation, business, or profession bearing a

reasonably direct relationship to the conduct constituting the offense,” or (2)

“engage in such a specified occupation, business, or profession only to a stated

degree or under stated circumstances.”

      According to the Guidelines, an occupational restriction is permissible in

the follow ing circumstances:

      The court may impose a condition of probation or supervised release
      prohibiting the defendant from engaging in a specified occupation,



                                         -5-
      business, or profession, or limiting the terms on which the defendant may
      do so, only if it determines 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.


§ 5F1.5.

      An occupational restriction can thereby serve two purposes. First, it can

first prevent a probationer from taking a certain type of employment. For

example, a sex offender may not be allowed to work around children. Second, a

lesser restriction can limit the “terms” of a probationer’s employment. For

example, a defendant convicted of fraud may be restricted from working in a

position handling money at a bank or may be required to discuss with the

employer bank the details of his criminal history.

      The question presented in Souser required us to look at the second type of

restriction, limits on the terms of a defendant’s employment.

      B. Souser

      In Souser, we reviewed an employer notification policy that Colorado’s

probation office had informally adopted in its internal operations manual. The

policy in place at the time required probationers, prior to and as a condition of



                                         -6-
accepting employment, to notify potential employers of their conviction,

supervision status, and any prior criminal history relevant to their employment

situation. The policy allowed probationers to be excused from this duty only if

they were able to demonstrate hardship arising from notification. The probation

office justified the informal policy as necessary to provide third parties with

notice of an employee’s criminal history and any risks associated with that

history.

      The defendant argued that the employer notification policy acted as an

occupational restriction. W e agreed, concluding:

      [p]ursuant to the plain language of § 5F1.5, an “occupational
      restriction” is a condition of probation that either “prohibit[s] the
      defendant from engaging in a specified occupation, business, or
      profession, or limit[s] the terms on which the defendant may do so.”
      Because an employer notification requirement limits the terms on which
      a defendant may engage in the specified occupation, it m ust be treated
      as an occupational restriction.

Id. at 1165 (internal citation omitted and emphasis added).

      W e found that requiring probationers to affirmatively disclose their

criminal record prior to accepting employment “limits the terms” on which a

probationer may seek employment. In other words, it placed an obligation on the

probationers to accept employment only on condition of mandated disclosure of

specific and detailed information about their criminal history. Since the

notification policy implicated the literal terms of § 5F1.5, we required




                                         -7-
individualized findings on a case-by-case basis before the condition could be

imposed. 2

      C. Employment Verification Policy

      In response to our decision in Souser, Colorado changed its employment

notification policy in M ay 2005. The probation office adopted what it called an

“employment verification policy.” The new policy was subsequently approved by

Colorado’s federal district judges.

      Under the new policy, probation officers no longer require probationers to

affirmatively contact employers and disclose their criminal status as a condition

of and prior to employment. Probation officers are instead directed to “personally

verify the employment of persons on probation or supervised release.” Appellee

Answer Br. Attach. 1 at 1. The policy was intended to correct the flaws in the

notification policy identified in Souser. According to the policy statement,

      The significant difference between this new policy and the previous policy
      is that the defendant is not required to notify the employer about their
      supervision status. Rather, the officer, consistent with statutory duties
      outlined in 18 U.S.C. § 3603, is required to verify employment information

      2
         At least one circuit has concluded that notification policies are not
occupational restrictions. United States v. Ritter, 118 F.3d 502, 504 n.2 (6th Cir.
1997). Other circuits, however, have concluded that notification policies may
constitute an occupational restriction. See, e.g., United States v. Britt, 332 F.3d
1229, 1232 (9th Cir. 2003) (finding that “it is clear that when a defendant is
required to notify his clients of his criminal history, he is being subjected to an
occupational restriction that must meet the requirements of § 5F1.5”); United
States v. Peterson, 248 F.3d 79, 85–86 (2d Cir. 2001) (treating condition that
required defendant to report conviction to his employer as an occupational
restriction); United States v. Doe, 79 F.3d 1309, 1322 (2d Cir. 1996) (same).

                                        -8-
       about duties, responsibilities, compensation, and other employment
       information relevant to supervision.

Id. at 1 (emphasis in original).

       As further support for the new policy, the following explanations were

included to distinguish it from the prior notification policy:

       (1) Verification is consistent with the duties of probation officers as
       outlined in 18 U.S.C. § 3603(2);

       (2) Personal verification of employment by officers ensures that the
       defendant is actually employed in the capacity he/she reports and
       allows the officer to confirm whether any third-party risks exist that
       may require employment restrictions;

       (3) Personal contact with employers to verify employment enables
       officers to build relationships with employers which support the
       officer’s ability to assess an offender’s progress under supervision;

       (4) Personal verification of an employment situation enhances the
       officer’s ability to make informed decisions and recommendations to
       the court regarding employment related travel, funds available for
       restitution, and potential third-party risk issues; and

       (5) Establishing open contact with employers avoids the aw kward
       situation of officers trying to conceal their true identities . . . when
       trying to contact an offender at a job site.

Id. at 1–2.

       According to probation officers who testified about its scope and

application in the stay proceedings below, the new policy is important for several

reasons related to their supervisory responsibilities. First, it allows officers to

confirm that probationers on home detention are attending their jobs or working

full-time. Second, it allows officers to confirm that probationers are

                                           -9-
conscientious and hard-working in their employment. Third, officers can

investigate the duties and responsibilities of employment to determine whether

more restrictive conditions are necessary. In applying the policy, probation

officers do not volunteer information to the employer about the probationer’s

offense or criminal history. They will, however, disclose public information

about the probationer if asked.

      A policy allowing self-reporting of work status by the probationer was

deemed inadequate given the number of probationers that must be monitored and

the ease of fabricating or misreporting work history and performance. According

to the testimony below , employers routinely have been contacted for many years

as a part of probation services, and few probationers have lost their jobs as a

result. The witnesses estimated that fewer than one percent of probationers have

lost jobs as a result of employer contacts and that probationers maintain a high

95% employment rate as a rule.

      In sum, the new verification policy differs in significant ways from the

prior notification policy: (1) it does not require the probation officer to inform the

employer of the employee’s criminal history; (2) it places no burden on the

probationer to inform an employer about a conviction; and (3) it does not require

any duties of either the probation office or the probationer before the probationer

accepts employment.




                                         -10-
       D. Application of Souser

       The issue is whether this new verification policy constitutes an

occupational restriction like the one we reviewed in Souser. W e conclude that it

does not.

       The distinctions betw een the two policies make a difference in two

important respects. First, the burdens on probationers are entirely different.

Under the prior notification policy, the probationer had a pre-employment

obligation to inform potential employers about his or her criminal history. In this

sense, employer notification conditions the probationer’s employment— before

beginning any job, a probationer had to affirmatively notify a potential employer

of his criminal history, including details of “risks that may be occasioned by the

defendant’s criminal record or personal history or characteristics.” Souser, 405

F.3d at 1163–64. And if the probationer failed to give the requisite notice, the

policy required the probation officer to notify the employer. Thus, under this

policy a probationer could not accept any work w ithout the requisite disclosures,

and the disclosures might include information far afield from the offense of

conviction. 3

       3
        The employer notification policy entailed active disclosure of not only
the probationer’s public record of conviction, but also any other personal
information that the probation officer could arguably construe as placing the
employer at risk. Under the new employment verification policy, in contrast, the
probation officer contacts the employer only after the probationer has obtained
employment and only for the purpose of job verification. The probation officer is
                                                                       (continued...)

                                        -11-
      In contrast, the verification policy does not require the probationer to do

anything as a condition of employment. Instead, it requires probation officers to

verify a probationer’s employment status, with no affirmative obligation on the

probationer. Nor is a probationer penalized if a probation officer fails to verify

his employment. The policy places no obligation on the probation officer to

provide information about a probationer’s crime or criminal history. In fact, the

probationer can continue his employment regardless of whether a probation

officer enforces the verification policy. The new policy, in short, does not limit

the terms of employment under the plain meaning of § 5F1.5.

      Second, the goals underlying the notification and verification policies are

entirely different. The notification policy at issue in Souser mandated disclosure

of a probationer’s criminal history to an employer. The apparent goal of the

policy was to reduce employers’ and third parties’ risks by ensuring that the

employer knew of a potential employee’s criminal background prior to hiring the

employee.




      3
        (...continued)
discreet: he does not necessarily inform the employer that he is a probation
officer and will disclose the probationer’s public record of conviction only if
asked. Of course, probationers may choose to notify the employer of their
criminal status before such verification occurs. But they are not required to do
so. In sum, it is simply irrelevant under the verification policy whether the
employer knows of the probationer’s criminal history, as the probationer’s
employment is not conditioned on notification.

                                         -12-
      The goal of the verification policy is broader and is not focused on the

employer’s knowledge. The verification policy instead implements the probation

officer’s statutory duty to monitor a probationer’s progress toward rehabilitation.

See 18 U.S.C. § 3603(2) (requiring a probation officer to “keep informed, to the

degree required by the conditions specified by the sentencing court, as to the

conduct and condition of a probationer . . . and report his conduct and condition

to the sentencing court”); id. § 3603(3) (requiring a probation officer to “use all

suitable methods . . . to aid a probationer. . . and to bring about improvements in

his conduct and condition”); id. § 3603(4) (requiring a probation officer to “be

responsible for the supervision of any probationer”); id. 3603(5) (requiring a

probation officer to “keep a record of [the probationer’s] work”). The

rehabilitative goals of probation depend on reliable information about the

probationer’s life and conduct that may only be obtained by personal contact with

a probationer’s employer. 4 Thus, the verification policy furthers important

      4
        Du and Chavez argue that the probation officers can comply with these
mandates in a less intrusive manner, such as obtaining a probationer’s pay stubs.
W hile perhaps the verification policy could be modified in many ways, the
Guidelines do not require courts to supervise the details of a policy that does not
impose an occupational restriction. Suffice it to say, the record suggests that a
pay stub or other methods of verification would be insufficient to inform the
officer if a probationer consistently arrives to work on time, is considered a good
employee, associates w ith other felons, or appears engaged in his work— the very
type of information which allows a probation officer to assess a probationer’s
progress. Nor does a pay stub allow an officer to build a relationship with an
employer, thereby enabling the officer to promote the probationer’s best interests.
Nevertheless, the courts are neither equipped for nor in the business of making
                                                                        (continued...)

                                         -13-
statutory obligations, and, as we have noted, it does not conflict w ith the plain

meaning of § 5F1.5.

      W e also note that Souser focused on required disclosures and did not bar all

contact between an employer and a probation officer. Of course, the verification

policy may inevitably result in some employers finding out about an employee’s

criminal history. But nonetheless we cannot construe every policy that has the

potential for notification as an occupational restriction. As a matter of fact, many

job applicants are already routinely asked about their criminal status when

applying for jobs, so at worst a verification policy discloses nothing more than

what the employer already knows about an employee. M oreover, reading § 5F1.5

so broadly as to apply to any contacts between probation officers and employers

that might result in disclosure of information about an individual’s criminal

history could unduly restrict the use of other common and essential conditions of

probation. For example, probation often includes garnishment of wages for

restitution or workplace visits by a probation officer, both of which could notify

an employer of a probationer’s status. Taken to its extreme, any contact with an

employer might lead to “notification” of a probationer’s criminal history. Section

5F1.5 does not extend so far. And in any event, we presume and expect that



      4
       (...continued)
the daily, factually-intensive decisions of the probation officer, and we decline to
micro-manage the probation office’s application of policies that do not limit the
terms of employment.

                                         -14-
under the verification policy, a probation officer will exercise reasonable

discretion in determining whether personal contact with an employer is necessary

in a particular case to carry out his statutory duties.

      Du and Chavez argue that the differences in policies are trivial. They argue

the problem with the employment notification policy is not that employment is

conditioned on notification, but that notification occurs at all, and this objection

applies equally to the verification policy. They claim adverse consequences are

likely to flow from verification, including termination, increased monitoring by

the employer, or disclosure of a probationer’s criminal status to their peers.

      But the notification policy in Souser was not an occupational restriction

merely because of possible adverse consequences. It was an occupational

restriction because notification was required as a condition of employment. The

verification policy, however, places no preconditional terms of employment on

the probationer. A probationer may accept any form of employment, engage in

any task required by this employment, and need not disclose anything to his

employer as a result of the verification policy. Nor does the policy require

employers to be told information about a probationer’s criminal history. It only

requires that the probation officer confirm the fact of employment, not disclose

the details of the probationer’s offenses.

      Finally, we note the record developed before the district court suggests that

adverse consequences of notification and verification are exaggerated. Only a

                                          -15-
small percentage of probationers actually lost work as a result of employer

contacts that probation officers routinely made prior to adoption of the

verification policy. W e also note that probationers who object to employment

verification are entitled to seek exclusion from the policy on a case-by-case basis.

      In sum, the employment verification policy does not place any “limit[s] on

the terms” of employment, § 5F1.5, or require a probationer to “engage in [] a

specified occupation, business, or profession only to a stated degree or under

stated circumstances.” 18 U.S.C. § 3563(b)(5). Accordingly, it is not an

occupational restriction requiring individualized or case-by-case implementation.

                                  III. Conclusion

      For the reasons discussed above, we AFFIRM .




                                         -16-
