                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2316
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Mario Darnell Smith

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                              Submitted: April 8, 2020
                               Filed: April 13, 2020
                                   [Unpublished]
                                   ____________

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      Mario Smith appeals after the district court revoked his supervised release and
sentenced him to 6 months in prison and 36 months of supervised release, with a
special condition prohibiting him from gambling.
       Smith argues on appeal that the district court had no authority to revoke
supervised release on Counts 2 and 4 because those supervised release terms had
expired; that the 36-month term of supervised release imposed on Count 5 exceeded
the statutory maximum; and that the gambling restriction was unjustified, limits his
ability to socialize, and restricts his occupation because he uses gambling as a source
of income. The government concedes that the additional supervised release imposed
on Counts 2 and 4 was improper--as those supervised release terms had expired when
the violations occurred--and that the term imposed on Count 5 was longer than was
permissible. The government argues, however, that the errors were harmless because
Smith received a concurrent 36-month term on Count 1; and recommends amendment
of the judgment to reflect no supervised release term on Counts 2 and 4, and a 30-
month term on Count 5. See 18 U.S.C. § 3583(b)(2) (maximum authorized term of
supervised release for Class D felony is 3 years), (h) (when court revokes supervised
release and sentences defendant to prison term followed by additional term of
supervised release, length of such term of supervised release shall not exceed
statutorily authorized supervised-release term for offense of conviction, less any
revocation prison terms). We agree that amendment of the judgment is proper.

       As to the gambling restriction, we conclude, after careful review of the record,
that the district court did not plainly err. See United States v. Carlson, 406 F.3d 529,
531 (8th Cir. 2005) (review of sentencing judge’s imposition of special condition of
supervised release is generally for abuse of discretion, but is for plain error when
defendant fails to object). While the district court did not explain why it was
imposing the restriction, the Probation Office indicated, without objection, that Smith
had been banned from several casinos. See United States v. Bell, 915 F.3d 574, 577
(8th Cir. 2019) (district court must make individualized inquiry into facts and
circumstances of case before imposing special condition of supervised release; special
condition need not be vacated if its basis can be discerned from record, even in
absence of individualized findings); United States v. Silvious, 512 F.3d 364, 371 (7th
Cir. 2008) (recognizing as overbroad and arbitrary certain special conditions of

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supervised release, including ban on gambling where there was no evidence that
defendant had gambling problem, but finding no plain error because there was no
showing that conditions affected defendant’s substantial rights, and conditions were
readily modifiable at defendant’s request).

       Accordingly, we affirm as to the imposition of the gambling restriction; and we
remand with instructions for the district court to amend the judgment to reflect no
additional term of supervised release on Counts 2 and 4, and a 30-month term of
supervised release on Count 5.



KELLY, Circuit Judge, concurring in part and dissenting in part.

       I agree that the district court’s judgment should be amended to reflect the
correct term of supervised release on Count 5 and no additional term of supervised
release on Counts 2 and 4. However, in my view, it was plain error to impose the
gambling restriction without an individualized inquiry to ensure the condition
comported with the law. See United States v. Carlson, 406 F.3d 529, 531 (8th Cir.
2005) (“When a defendant fails to object to [a] special condition at sentencing, [] we
review for plain error.”). On this point, I respectfully dissent.

       Any condition of supervised release must “1) be reasonably related to the
sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involve no greater deprivation
of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and
3) be consistent with any pertinent policy statements issued by the Sentencing
Commission.” United States v. Bell, 915 F.3d 574, 577 (8th Cir. 2019) (cleaned up).
Moreover, the sentencing court “must make an individualized inquiry into the facts
and circumstances underlying a case and make sufficient findings on the record so as
to ensure that the special condition satisfies the statutory requirements.” Id. A



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special condition need not be vacated if “its basis can be discerned from the record,
even in the absence of individualized findings.” Id.

       Without explanation, the district court imposed a condition that Smith not
engage “in any form of gambling, including but not limited to, lotteries, online
wagering, sports bettering,” or enter “any casino or other establishment where gaming
in the primary purpose.” Yet the only place in the record where casinos or gambling
is mentioned is in the probation officer’s confidential, undisclosed sentencing
recommendation submitted to the court. In that document, the officer simply alleged,
without elaboration, that Smith had been banned from several casinos. But the record
is otherwise silent on the issue, and there is no indication the parties were privy to this
confidential document or otherwise had notice of the probation officer’s concerns.
And while Smith was ordered to pay $1,300 in restitution when he was originally
sentenced, there is no indication that he is not current on his restitution payments. On
this record, I can discern no apparent connection between gambling and Smith’s
offenses, supervised release violations, or criminal history, and I would therefore
vacate the condition.1 See United States v. Robertson, 948 F.3d 912, 920 (8th Cir.
2020) (finding plain error “because the district court did not explain its basis for the
[alcohol-restriction] condition, Robertson’s offense did not involve alcohol, and the
record [did] not show that Robertson was alcohol or drug dependent”).
                         ______________________________




       1
       My views are based on the record as of the revocation proceedings that
resulted in the June 6, 2019 Judgment, which is the subject of this appeal, and not on
any later developments.

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