                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-4532


                           UNITED STATES OF AMERICA

                                            v.

                                WILLIAM FLORENCE,

                                                       Appellant.


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D. C. No. 2-08-cr-00697-002)
                        District Judge: Hon. Joel H. Slomsky


                       Submitted under Third Circuit LAR 34.1(a)
                                 on November 5, 2010

               Before: SCIRICA, RENDELL and ROTH, Circuit Judges

                           (Opinion filed: December 8, 2010)


                                      OPINION


ROTH, Circuit Judge:

      William Florence appeals an October 21, 2009, judgment of sentence of the

District Court. He contends that the District Court plainly erred by imposing a special

condition of supervised release that prohibits him from incurring any new credit charges
or opening additional lines of credit without the approval of a probation officer. For the

following reasons, we will affirm the sentence the District Court imposed.

I. Background

       Law enforcement agents arrested Florence on October 23, 2008, after observing

him delivering phencyclidine (PCP) to Terrence Savage. The agents later made three

controlled-drug purchases from Savage through a confidential informant. In each

instance, Florence served as Savage’s supplier. When Florence was arrested, he had an

additional quantity of PCP on him and roughly $2,700 of “buy-money” that the informant

had given Savage moments beforehand. The total amount of PCP involved in Florence

and Savage’s transactions was 614.03 grams

       Florence moved to suppress the evidence seized from him when he was arrested.

At the suppression hearing, Florence falsely testified that he was not involved in drug

transactions with his co-defendant, Savage, on the date in question. The District Court

denied the motion to suppress and Florence subsequently pled guilty to one count of

conspiracy to distribute 100 grams or more of PCP, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(B); one count of distribution of 100 grams or more of PCP, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B); two counts of aiding and abetting the distribution of 100

grams or more of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. §

2; and one count of possession with intent to distribute PCP, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(C). (Appellant’s App. at 3-4.)

       At the sentencing hearing on October 21, 2009, the District Court carefully

considered the factors provided in 18 U.S.C. § 3553(a) in determining the appropriate

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sentence to impose. In discussing Florence’s criminal conduct, the District Court

evaluated Florence’s drug revenue, which, from the transactions in the record, the District

Court calculated to be approximately $8,000 over a one-month period. Florence also

presented, and the court addressed, Florence’s legal sources of income. At a number of

points during the hearing, the District Court expressed its concern regarding Florence’s

lack of truthfulness, as it was clear that Florence had lied in his testimony to the court

during the suppression hearing.

       The District Court imposed a sentence of seventy-five months’ imprisonment, a

term within the Sentencing Guidelines range that the District Court had calculated. The

District Court also imposed a five-year term of supervised release, a special assessment

of $500, and a number of special conditions of supervised release. Among the special

conditions, the District Court required Florence to provide the U.S. Probation Office with

full disclosure of his financial records, including truthful monthly statements of his

income and yearly tax returns. The District Court also directed Florence “not to incur

any new credit charges or open any additional lines of credit without the approval of the

Probation Officer.” The court, however, did not impose a fine or restitution, beyond the

special assessment. Florence did not object to these terms.

       Florence appealed.

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                              3
       We generally review a district court’s imposition of sentence, including conditions

of supervised release, for abuse of discretion. United States v. Voelker, 489 F.3d 139,

143 n.1 (3d Cir. 2007). If the sentence was imposed without objection, we review for

plain error. Voelker, 489 F.3d at 143 n.1.

III. Discussion

       Florence challenges only the District Court’s imposition of the special condition of

supervised release, prohibiting him from incurring new credit charges or opening new

lines of credit without the approval of the probation office.

       “Though district courts have broad discretion in fashioning special conditions of

supervised release, this discretion is not unfettered,” and must be exercised according to

18 U.S.C. § 3583. United States v. Heckman, 592 F.3d 400, 405 (3d Cir. 2010). Section

3583(d) requires, inter alia, that any such condition of supervised release: (1) “must be

‘reasonably related’ to the factors set forth in 18 U.S.C. § 3553(a)” and (2) “must impose

‘no greater deprivation of liberty than is reasonably necessary’ to deter future criminal

conduct, protect the public, and rehabilitate the defendant.” Voelker, 489 F.3d at 144

(quoting 18 U.S.C. § 3583(d)). Although we “‘have consistently required district courts

to set forth factual findings to justify special probation conditions,’” id. at 144 (quoting

United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)), “we may affirm the

condition if we can ascertain any viable basis for the . . . restriction in the record before

the District Court,” United States v. Miller, 594 F.3d 172, 184 (3d Cir. 2010) (internal

quotations omitted).



                                               4
       Florence argues that his drug offenses are unrelated to any fraud or financial

impropriety and therefore cannot support the financial restrictions the District Court

imposed. Florence refers to Section 5D1.3(d)(2) of the United States Sentencing

Guidelines Manual, which recommends the imposition of the instant special condition

with a limitation that the condition only apply if a defendant fails to pay on time any fine

or restitution. See U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(d)(2) (2008). Noting

that the limitation present in 5D1.3(d)(2) is absent here and that no restitution or fine has

been imposed, Florence asserts that, at a minimum, the lack of explanation for this

special condition requires us to remand this case to the District Court.

       On the record before us, we conclude that the District Court did not commit plain

error in imposing the special condition preventing Florence from incurring new credit

charges or opening additional lines of credit without approval of a probation officer. This

condition serves as a strong deterrent and monitoring tool, particularly since Florence’s

drug transactions are inextricably linked to his finances and since he is of dubious

credibility. 1 Thus, there is a viable basis for the condition in the record. See Miller, 594

F.3d at 184. Moreover, even if the imposition of this special condition was error, it was

not plain error. 2


       1
         A better explanation by the District Court for the special condition would have
facilitated our review of this ground for appeal.
       2
         Florence’s attempts to analogize his special condition to those in Pruden and
Evans are unavailing. See United States v. Pruden, 398 F.3d 241, 249 (3d Cir. 2005);
United States v. Evans, 155 F.3d 245, 249 (3d Cir. 1998). In Pruden, a special condition
requiring defendant’s participation in a mental health treatment program constituted plain
error because there was no evidence that defendant had any mental health issues, and in
                                              5
IV. Conclusion

         For the foregoing reasons, we will affirm the judgment of sentence of the District

Court.




turn, no need for such treatment. See 398 F.3d at 249. In Evans, a condition requiring
reimbursement of counsel fees was “not related in any tangible way to [defendant’s]
insurance fraud,” and amounted to plain error. See 155 F.3d at 249.

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