Lead Opinion
Christopher Carter pleaded guilty to one count of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court
On July 12, 2008, Carter knocked on the door of a motel room in Little Rock, Arkansas, identifying himself as “room service.” After the occupant of the room opened the door, Carter forced his way into the room, pointed a handgun at the occupant, demanded money, and threatened to kill the occupant. Carter and a female associate collected the occupant’s money and left the room. The police were called, and officers arrested Carter and his associate later that day after observing them as they exited a car with a stolen license plate. Inside the car, the officers discovered a semi-automatic pistol on the center console, along with ammunition and $50 in cash. The victim identified Carter as the man who robbed him at gunpoint. On January 5, 2009, Carter pleaded guilty in Arkansas state court to charges of robbery and theft and was sentenced to a twelve-year term of imprisonment. Carter has been incarcerated since July 12, 2008, and he is projected to be released from state custody in December 2016.
On June 3, 2009, a federal grand jury indicted Carter on one count of unlawful possession of a firearm as a previously convicted felon, in violation of § 922(g)(1). There is no dispute that the felon-in-possession count stemmed from the discovery
At sentencing, the district court determined that Carter’s advisory guideline sentencing range was 84 to 105 months’ imprisonment. Carter asked the district court to reduce the range by 24 months, to 60 to 81 months’ imprisonment, to account for the time he had already served in state custody for his state robbery and theft convictions. He relied on USSG § 5G1.3(b)(l), which provides:
If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction ... and that was the basis for an increase in the offense level for the instant offense ... the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.
Under § 5G1.3(b)(l), a sentencing court should first calculate the appropriate total punishment for a defendant, then reduce that total punishment to account for the time the defendant has already spent in custody. USSG § 5G1.3, comment. (n.2(D)). The district court believed that § 5G1.3(b)(l) called for a 24-month reduction in Carter’s ultimate sentence. After expressing concern about Carter’s extensive criminal history, however, the district court indicated that it would not follow § 5G1.3(b)(l); instead, the court imposed a sentence of 105 months’ imprisonment and three years of supervised release. Over Carter’s objection, the district court also imposed a special condition of supervised release that barred Carter from obtaining employment with a federal credit union or any institution insured by the Federal Deposit Insurance Corporation (“FDIC”). Carter now argues that the district court erred by failing to consider § 5G1.3(b)(1) in its guidelines calculations and by imposing the special condition restricting his ability to work at federal credit unions and FDIC-insured institutions.
Carter asserts that the district court committed procedural error at sentencing by failing to apply § 5G1.3(b)(l) in its guidelines calculations. See Gall v. United States,
The district court correctly calculated an advisory guidelines range of 84 to 105 months’ imprisonment before considering the effect of § 5G1.3(b)(l). See USSG § lBl.l(a)(7). The district court repeatedly stated that it understood Carter’s § 5G1.3(b)(l) argument, and even described in detail the purposes of that provision. See United States v. Williams,
Carter also asserts that the special condition restricting his ability to work at certain financial institutions should be vacated. He argues, among other things, that this occupational restriction is not reasonably related to the relevant § 3553(a) factors and that the district court failed to support the restriction with sufficient individualized findings. We review the district court’s imposition of special conditions of supervised release for an abuse of discretion. United States v. Durham,
The district court declared at sentencing that Carter “is disallowed from obtaining employment with an institution insured by the FDIC or Federal Credit Union,” and explained at sentencing that the special condition was appropriate for Carter “because of his history.” As is often the case, this oral pronouncement was worded imprecisely, see United States v. Love,
The judgment of the district court is affirmed.
Notes
. The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas.
Dissenting Opinion
dissenting.
Under U.S.S.G. § 5G1.3(b)(l), a district court must reduce a defendant’s sentence to account for time the defendant has already served in state custody for the same criminal conduct. Contrary to the plain direction of § 5G1.3(b)(l), the district court in this case explicitly refused to credit the twenty-four months Christopher Carter had served in state court on the charges underlying his federal conviction. The district court’s miscalculation of Carter’s Guidelines range constituted significant procedural error. Because the record shows the district court’s error was not harmless, I dissent from the majority’s decision to affirm Carter’s sentence. Moreover, the district court’s special condition of supervised release barring Carter from obtaining employment with an institution insured by the FDIC or Federal Credit Union was an invalid occupational restriction. The district court thus abused
I
In reviewing a district court’s sentence, this court’s first task is to “ensure that the district court did not commit a significant procedural error, such as miscalculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain why a sentence was chosen.” United States v. Martinez-Hernandez,
Section 5G1.3(b) directs a district court to sentence a defendant subject to an undischarged term of imprisonment as follows:
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b). “The Supreme Court described § 5G1.3(b) as part of the ‘safeguards built into the Sentencing Guidelines’ to protect a defendant ‘against having the length of his sentence multiplied by duplicative consideration of the same criminal conduct.’ ” United States v. Mathis,
Section 5G1.3(b) “can apply only when a defendant has been sentenced in state or federal court for the same criminal conduct or for criminal conduct necessarily included in the later federal charges.” United States v. Harris,
Having established § 5G1.3(b)(l) applies, the district court was bound by the provision’s directive. “Section 5G1.3(b)(l)’s language is mandatory: the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment.” United States v. Armstead,
Despite the mandatory language of § 5G1.3(b)(l), the record reveals the district court did not believe it had to comply with the provision. The court began by asking, “[w]hy should I want to give Mr. Carter credit?” and “[w]hy should I have any mercy on Mr. Carter?” Sent. Tr. at 9-10. After extensive pleading by Carter’s counsel to credit Carter’s time served, the court made further statements evincing its unwillingness to apply the provision, such as, “[i]f the guidelines are not mandatory, the guidelines can say you should do that and in this case and — I understand what you are saying. You are trying to hold me to the guidelines and what the guidelines say.” Id. at 12. Ultimately, the court refused to credit the twenty-four months, which was made crystal clear during a prolonged exchange between Carter’s counsel and the court:
MR. TARVER: Your Honor, one of the issues is whether or not you made a determination as to whether the BOP would give him credit for the time that he has served.
THE COURT: Yes. And I did not do that. I am going to run this concurrently, but I am not giving him credit for his time served.
MR. TARVER: I understand that, but did you determine whether or not the BOP would give him credit or not? That was part of what you asked the probation office—
THE COURT: They will if I make a statement on the record that I order them to run it concurrent; otherwise, they will not.
MR. TARVER: No. That’s two different things.
THE COURT: You are saying credit for time served already?
MR. TARVER: Yes, sir. That’s the first part of that section of 5G1.3. The Court shall adjust the sentence for any periods of imprisonment already served on the undischarged term of imprisonment if the Court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.
THE COURT: I do not determine whether they will. The point was thatthey would — you are talking about that’s the guideline that you are pointing to?
MR. TARVER: Yes.
THE COURT: Mr. Tarver, I have told you I am not going to give him a guideline sentence on that.
MR. TARVER: That’s two different things totally.
THE COURT: You can take it up on appeal.
MR. TARVER: But you have to make a determination on the record for me to do that.
THE COURT: And what determination are you asking me to make?
MR. TARVER: Whether or not the BOP will give him credit.
THE COURT: That’s what I said. They won’t unless I state on the record that they have to, and I didn’t state on the record that they have to. So they will not give him credit. What magic language do I need to say, Mr. Tarver?
MR. TARVER: I think that covers it.
THE COURT: And that’s what I said initially.
MR. TARVER: But that’s—
THE COURT: I mean, if you need me to say magic language so you can perfect your appeal—
MR. TARVER: The question was whether or not they would give him credit for the sentence, the time that he has already served.
THE COURT: And the answer is no, unless I state on the record that they have to. And I specifically stated on the record that I will not order them to give him credit for time served.
MR. TARVER: But that — what I am asking is part of the adjustment on the sentence. That’s where the numbers came in that the guideline range would be 60 to 81 months as opposed to 84 to 105. The BOP has no say in this whatsoever.
THE COURT: I understand. I think your record is made.
Id. at 18-20. In spite of the court’s explicit refusal to credit Carter’s time served, the government argues, “[t]he district court plainly understood that a guideline sentence would require 24 months credit for the time Carter had served in ADC,” but imposed a variance instead. Appellee’s Br. at 9. Based on the district court’s incessant denial of any time-served credit, it is difficult to see how the government concludes otherwise.
Moreover, based on the district court’s refusal to credit Carter’s time served, the government’s argument makes no sense. Even if the district court’s comments could be construed to uphold a variance, such a conclusion does not hold water because the court clearly rejected the application of § 5G1.3(b)(l), and therefore the court did not have a corresponding lower Guidelines range to vary from. Stated differently, to impose an upward variance, the court necessarily had to credit Carter with the twenty-four months’ time-served, and then vary upward to the high end of the original Guidelines range. The record does not support this theory because the court clearly declined to credit Carter’s time served, and therefore it was effectively proceeding on the only Guidelines range it ever calculated — the original range of 84 to 105 months.
The majority takes a slightly different route, while also arguing the district court imposed a variance. Namely, the majority essentially conflates the § 5G1.3(b)(1) adjustment with the variance determination. Under its interpretation of the Guidelines, the majority concludes, “[rjather than sentence Carter to a term that reflected an advisory reduction under § 5G1.3(b)(l), the district court determined that a variance from the guidelines was appropriate
I disagree with the majority. As discussed above, the Guidelines provide a step-by-step method by which to calculate a defendant’s Guidelines range. See U.S.S.G. § lBl.l(a). Included among these steps are the applicable adjustments from § 5G1.3(b)(l). See U.S.S.G. § 1B1.1(a)(8). Therefore, by not making any § 5G1.3(b)(1) adjustment, the district court miscalculated Carter’s Guidelines range. See United States v. Estrada,
The closer question — -and one the majority never reaches in light of its finding of no procedural error — is whether the district court’s procedural error is harmless. “An error is harmless only if we are convinced that the error did not affect the district court’s sentencing conclusion.” United States v. Tabor,
First, because it believed it did not have to credit Carter with the twenty-four months he served in state court, the district court never calculated an alternative Guidelines range. See United States v. Icaza,
II
I also dissent from the majority’s decision to affirm the imposition of a special condition of supervised release barring Carter from obtaining employment with an institution insured by the FDIC or Federal Credit Union. “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Durham,
Under the Guidelines, the court may impose occupational restrictions only if it determines the following:
(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 to that for which the defendant was convicted.
U.S.S.G. § 5F1.5(a).
The Eighth Circuit has had occasion to consider occupational restrictions in a few cases. In United States v. Cooper,
The condition may be imposed only if the occupation, business, or profession bears a reasonably direct relationship to the nature of the offense.... The Committee recognizes the hardship that can flow from preventing a person from engaging in a specific occupation.... This particular condition of probation should only be used as reasonably necessary to protect the public. It should not be used as a means of punishing the convicted person.
Id. (quoting S.Rep. No. 98-225, at 96,1984 U.S.C.C.A.N. 3182, 3279 (1983)). Accordingly, the court held the district court abused its discretion in imposing the occupational restriction. Id.
In United States v. Choate,
Finally, in United States v. Carlson,
Unlike Carlson, I believe the instant matter is closer to Cooper than Choate because there was little, if any, relationship between Carter’s conduct and the condition prohibiting him from working with an agency insured by the FDIC or Federal Credit Union. Carter was never employed with such an agency, nor did the facts underlying the instant offense have anything to do with such an agency because he committed armed robbery of an individual at a motel. Moreover, Carter’s criminal history — the only cited basis the district court relied on at sentencing — did not contain any reasonably direct relationship to an agency insured by the FDIC or Federal Credit Union. Accordingly, the occupational restriction was not reasonably necessary to protect the public from Carter’s conduct. Compare United States v. Starkes,
In addition, I agree with Carter the condition involves a greater deprivation of liberty than is reasonably necessary under the circumstances. Occupational restrictions may be an effective tool to protect the public when reasonably related to the defendant’s conduct, but, as discussed above, there was no such connection in this case, and thus it would only serve as a greater detriment to Carter’s rehabilitation efforts once he begins supervised release if the court were allowed to cut off an entire industry of employment opportunity. See United States v. Wittig,
Finally, at a minimum, the district court failed to provide sufficient individualized findings to support the imposition of the condition. “When crafting a special condition of supervised release, the district 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.” United States v. Walters,
Based upon the reasons set forth herein, I would vacate the special condition of supervised release barring Carter from working with an agency insured by the FDIC or Federal Credit Union. I therefore dissent from the majority’s decision to affirm the imposition of that condition.
. The government concedes the special condition of supervised release is not supported by § 5F1.5.
. Due to the district court's lack of individualized findings, I am not persuaded by the majority's efforts to make such a record on appeal by examining whether Carter's prior convictions for theft and robbery are criminal offenses involving dishonesty or a breach of trust pursuant to 12 U.S.C. §§ 1785(d)(1)(A); 1829(a)(1)(A).