*1 requisite criminal recklessness America, UNITED STATES injuries held liable for Fields’s under Appellee, Moore, 1983. See 773-74 (holding act that defendant must with being before criminal recklessness found Christopher CARTER, Appellant.
liable under the deliberate-indifference No. 10-2777. process in a standard substantive due Appeals, United States Court of case). Eighth Circuit. we conclude that Because the Miller April Submitted: 2011. County individual defendants did vio Aug. Filed: 2011. process late Fields’s substantive due rights, need we not address the other Rehearing En Rehearing Banc prong qualified-immunity analysis; Denied Oct.
namely, pro whether the due substantive right
cess clearly Fields asserts was
established when the events in this case place. City took See Avalos Glen
wood,
(deciding clearly address the estab prong concluding
lished after
plaintiffs due process rights substantive violated).
had not County been The Miller
individual defendants therefore enti to qualified immunity regard
tled
Fields’s process substantive due claim.
III. CONCLUSION above,
For all of the reasons set forth judgment
we reverse the of the district qualified the extent that it denied
immunity County Miller individual
defendants and remand the case fur- proceedings
ther against County Miller remaining
the sole defendant in this case.
COLLOTON, Judge. Circuit pleaded guilty Christopher Carter a fire- possession of unlawful one count felon, in convicted previously arm as a The 922(g)(1). of 18 violation U.S.C. him term of to a district court1 sentenced followed imprisonment, 105 months’ release. Car- years three application ter the district appeals sentencing guidelines and advisory of su- of a imposition affirm. pervised release. We 12, knocked on July On Carter Rock, in Little Ar- motel door of a room kansas, as “room ser- identifying himself room occupant vice.” After door, way forced his opened Carter room, at the pointed handgun into the money, threat- occupant, and demanded occupant. kill the Carter and ened to occupant’s associate collected female The were police left the room. money and called, and his officers arrested Carter day observing after later that associate a stolen they exited a car with them as car, the officers plate. Inside license pistol on the a semi-automatic discovered console, ammunition and along with center identified Carter in cash. victim $50 gunpoint. him as man who at robbed 5, 2009, pleaded guilty January On Carter of rob- charges in state court to Arkansas to a bery was sentenced and theft and Carter twelve-year imprisonment. term of July since has been incarcerated projected to be released he 2016. custody December state AFPD, Pitts, Fayette- Angela Lorene 3, 2009, jury grand a federal On June ville, AR, appellant. for unlawful count of indicted Carter on one Rock, AR, AUSA, Little Lipe, Linda B. a previously possession of firearm appellee. for felon, 922(g)(1). §of convicted violation dispute felon-in-pos- BYE, COLLOTON, no There is Before discovery count stemmed GRUENDER, session Judges. Circuit Miller, of Arkansas. Brian S. 1. The Honorable Judge the Eastern District States District (“FDIC”). pistol posit Corporation the semi-automatic the time Insurance robbery arrest state on the and Carter now argues the district court charges. pleaded guilty 5G1.3(b)(1) theft by failing erred to consider § 922(g)(1) charge May guidelines *3 by impos- its calculations and special ing restricting his sentencing, At district court deter- ability to work at federal credit unions and advisory guideline mined that Carter’s FDIC-insured institutions. sentencing range 84 to 105 months’ imprisonment. Carter asked the district Carter asserts that the district months, range by court to reduce the 24 to court committed error sen 60 to imprisonment, 81 months’ to account 5G1.3(b)(l) tencing by failing apply § to in already for the time he had served in state guidelines its calculations. See Gall v. custody for his robbery state theft and States, 38, 51, 552 U.S. 128 S.Ct. convictions. He relied on USSG (2007). disagree, L.Ed.2d 445 We 5G1.3(b)(l), § which provides: because the record shows that the district (a) If subsection not apply, does and a 5G1.3(b)(l) properly § court considered in imprisonment term of resulted from an- guidelines calculations and reached its other offense that is relevant to conduct chosen 105-month sentence after de the instant offense of conviction ... and termining guidelines that a sentence was that was the basis for in the increase inappropriate. level for offense the instant ... offense The district court correctly calculated adjust the court shall the sentence for advisory guidelines range of to 105 any period of imprisonment already imprisonment months’ considering before undischarged served im- term of 5G1.3(b)(l). § the effect of See USSG prisonment if the court determines that lBl.l(a)(7). § The district court re- period such of imprisonment will not be peatedly it stated that understood Carter’s by credited the federal sentence 5G1.3(b)(l) § argument, and even de- of
Bureau Prisons. purposes scribed detail the pro- of that § 5G1.3(b)(l), Under a sentencing court Williams, vision. See United States v. should first calculate the appropriate total (8th Cir.2009). The court punishment defendant, for a then reduce observed, however, that guidelines “[t]he punishment that total to account for the mandatory,” aren’t why asked it time already the defendant has spent in give “should ... guideline even a sen- 5G1.3, custody. § USSG comment. tence,” given Carter’s history of violent (n.2(D)). The district court believed criminal conduct. Rather than sentence 5G1.3(b)(l) § called for 24-month reduc- to a term that reflected an adviso- tion in Carter’s ultimate sentence. After ry § reduction under the dis- expressing concern about Carter’s exten- trict court determined that a variance however, sive criminal history, the district the guidelines appropriate court indicated that it would not follow light of other set factors forth in 18 5G1.3(b)(l); § U.S.C. instead, the imposed 3553(a), § including need of sen- imprisonment sentence 105 months’ imposed tence to reflect the years supervised three seriousness of release. Over offense, objection, conduct, Carter’s deter criminal the district also imposed public, and to condition of de- release that barred Carter from fendant with obtaining educational and vocational employment 3553(a)(2). with a training. federal union credit See 18 U.S.C. Ul- institution timately, De- Federal the court a sentence of 1785(d)(1)(A), §§ in FDIC. See 12 U.S.C. imprisonment, and stated 105 months’ 5G1.3(b)(l) objec- 1829(a)(1)(A); §§ also 12 U.S.C. response to Carter’s see him a going give 1813(u). tion it “was not prior convictions for that.” The court sentence on guideline (“his history”) are crimi- robbery theft 5G1.3(b)(l) fail consider thus “involving dishonesty aor nal offenses or in fashion- in its calculations guidelines Regarding See Guidance breach trust.” sentence; deter- simply ing its ultimate 205(d) Imposed Prohibitions Section 3553(a) that, light all of mined Act, Fed.Reg. the Federal Union Credit guidelines was factors, from the a variance 48,403 19, 2008); 48,399, (Aug. Statement See United States appropriate. Policy Pursuant to Section *4 McLoone, Fed.Appx. 47-48 Act, Insurance 63 Fed. Deposit Federal Lane, Cir.2011); v. 509 F.3d United States (Dec. 1998). 66,177, 66,185 Carter Reg. (6th Cir.2007). 771, 775-76 statutorily at working is thus barred special that the Carter also asserts a federal credit union or FDIC-insured ability at restricting his to work merely As the district court institution. be va certain financial institutions should incorporated statutory prohibition things, argues, among other cated. He law, federal comply ordered Carter to is not rea occupational that this restriction there no abuse of discretion. See 3553(a) the relevant sonably related to Miller, States v. 557 F.3d United that district court failed factors and the (8th Cir.2009). indi support the restriction with sufficient judgment of the district court is findings. review the district vidualized We affirmed. of imposition special of conditions an of discre supervised release for abuse BYE, Judge, dissenting. Circuit Durham, v. tion. States United 5G1.3(b)(l), a district Under U.S.S.G. (8th Cir.2010). must reduce defendant’s sentence court declared at sen The district the to account for time defendant has al- that “is disallowed from tencing Carter in for the ready custody served state same obtaining employment with an institution Contrary to the plain criminal conduct. by the or Credit insured FDIC Federal §of the district direction Union,” explained that in explicitly this case refused cred- for appropriate the condition was special twenty-four Christopher the months As is history.” Carter “because of his court on had served state the Carter case, pronouncement often the this oral his charges underlying federal conviction. imprecisely, see was worded The district court’s miscalculation of Car- Love, (D.C.Cir.2010), but signifi- ter’s Guidelines constituted clarified, judgment consistent written procedural cant error. Because record “[p]ur pronouncement, with the oral court’s error was not shows 1829, the §§ 12 USC 1785 and suant to harmless, majority’s from the dissent employment shall not obtain defendant affirm sentence. decision to or a by an insured FDIC institution Moreover, special con- the district court’s Union.” The cited statutes Federal Credit barring dition of release been “any person who has an employment with insti- obtaining involving any offense convicted criminal or by tution insured FDIC Federal dishonesty may or a breach trust” occupational Union was invalid Credit employee of an “insured credit serve as thus The district court abused or an restriction. union” institution 5G1.3(b) imposing condition, discretion Section directs a district court and I dissent majority’s from the decision to subject sentence a defendant to an un- to affirm imposition con- discharged imprisonment term of as fol- dition. lows: (1) adjust the court shall the sentence period imprisonment already sentence, In reviewing district court’s undischarged served on the term of im-
this court’s first
is to “ensure that
task
prisonment if the court determines that
district court
commit a significant
did not
such period of imprisonment will not be
error,
such as miscalculating
credited to
the federal sentence
range, treating
Guidelines
the Guide
Prisons;
Bureau of
failing
lines mandatory,
to consider the
(2) the
sentence for
instant offense
3553(a) factors,
selecting a sentence
shall be
run
concurrently
facts,
clearly
based on
failing
erroneous
undischarged
remainder of the
term
to adequately explain
awhy
sentence was
imprisonment.
chosen.”
United States Martinez-Her
5G1.3(b).
*5
Supreme
U.S.S.G.
“The
Court
nandez,
(8th
761,
Cir.2010)
593 F.3d
762
5G1.3(b)
§
part
described
as
of the ‘safe-
(internal quotation marks and citation
guards built
Sentencing
into the
Guide-
omitted). To
calculate
defendant’s
lines’ to
‘against
a defendant
hav-
Guidelines range, a district court should
ing the length of
multiplied by
his sentence
begin by determining the
guideline
offense
duplicative consideration of the same crim-
section from Chapter
applicable
Two
to
”
inal
Mathis,
conduct.’ United States v.
conviction,
the offense of
determining
and
939,
941
(quoting
base
offense
level.
U.S.S.G.
States,
389,
Witte v.
405,
United
515 U.S.
(2).
1B1.1(a)(1),
§
there,
From
the Guide
2199,
(1995)).
115 S.Ct.
901 is harmless. procedural forth in 18 trict court’s error factors set of other light 3553(a).” only if are con- “An error is harmless we Supra § U.S.C. did vinced that the error not affect majority. As dis- disagree with conclusion.” district above, provide a the Guidelines cussed Tabor, 688, 692 v. United States by which calculate method step-by-step (8th Cir.2008). argued it can While range. See Guidelines a defendant’s a vari- impose district intended lBl.l(a). among § Included U.S.S.G. history, ance in of Carter’s criminal light adjustments steps applicable these it stands leaves me uncon- record as 5G1.3(b)(l). See U.S.S.G. would the same impose vinced the court 1B1.1(a)(8). Therefore, by not making with properly sentence if it credited Carter 5G1.3(b)(1) adjustment, he twenty-four months had served Carter’s Guidelines court miscalculated state court. Estrada, range. See United States (“[Al- Fed.Appx. First, not because it believed it did have greater flexibility though provided Booker twenty-four to credit with the 5G1.3(b), nullify § sentencing, not it did court, months in state the dis- he served applies, sentencing when section trict court never calculated an alternative its dictates in the judges must include range. See States v. Guidelines United guideline proper sen- calculation Cir.2007) (8th Icaza, (internal tence.”) marks cita- quotation (“[T]o error, finding of support a harmless omitted). properly “A failure to cal- tion clearly must show not record is a advisory Guidelines culate intended the district court error, and a non- significant sentence, that the al- alternative but also calculating the [Guide- error in harmless is based an identifi- ternative sentence a remand for resen- range requires lines able, correctly guidelines calculated Tomac, 567 tencing.” States v. United range.”). say, The district Cir.2009). (8th To be F.3d 385-86 have a sen- example, would sure, ability retained the the district court tence of months even if it credited warranted, if it was to fashion variance court has Carter’s time served. This required to calculate the court was still but prior found error in cases non-harmless range. Consequently, proper Guidelines where court failed to articulate a district majority’s efforts to disagree with the Compare sentence. alternative 5G1.3(b)(l) adjustment conflate Williams, States v. F.3d analysis. variance See United States Cir.2010) (“[W]e conclude that the would Washington, 865-66 harmless because procedural error *8 Cir.2008) (“We courts to con- urge district any court did articulate district three-step engage process in the tinue sentence, and is no clear alternative there ascertaining applicable Guide- of first on the record that the district indication any considering permissi- range, lines then imposed sen- court would have the same within the Guidelines’ departures ble argument legal defendant’s] if tence [the structure, a finally, deciding whether (internal marks prevailed.”) quotation had would be more non-Guidelines sentence omitted), and citation with United States pur- the circumstances appropriate under Sanchez-Martinez, 3553(a).”). § suant to Cir.2011) (concluding any error was harm- the dis- less because the record was clear major- question one the The closer —-and the same trict have court would light finding ity never reaches error). regardless dis- sentence error —is whether the procedural no Second, because the district court be- While the district court is afforded wide lieved it did not have to follow discretion in formulating conditions of su- § essentially release, pervised “this discretion is limited original Carter within his range Guidelines by the requirement that the conditions be of 84 to 105 If the properly months. court 3553(a) reasonably § related to the fac- months, credited twenty-four it is tors, greater no deprivation involve of lib- possible the court would sentence him at erty than reasonably necessary, and are high proper end of the Guidelines consistent with pertinent policy state- range. See United v. Ewing, ments issued the United States Sen- Cir.2011) (holding the (internal Id. tencing Commission.” quota- error in miscal- omitted). tion marks and citation culating the defendant’s Guidelines Guidelines, Under the may was not harmless because it increased the impose occupational restrictions if it range, expressed but the court no view on determines following: warranted). whether a might variance (1) reasonably direct relationship ex- again, Once suggest do not mean to isted between the occupa- defendant’s impose upward could not variance tion, business, profession and the However, if it desired on remand. given conduct relevant to the offense of con- uncertainty present record, viction, and would vacate the district court’s sentence (2) imposition of such a restriction is and remand for the court to properly apply reasonably necessary pub- 5G1.3(b)(l). Morris, § See 458 F.3d at lic because there is reason to believe (“We resentencing remand for because that, restriction, absent such the defen- we say cannot based on this record that dant will continue engage in unlawful the combined errors of miscalculating the conduct to that for which the defendant guidelines sentencing range and failing to was convicted. 5G1.3(b) apply impact the ulti- 5F1.5(a).2 U.S.S.G. The Guidelines fur- mate imposed by sentence the district provide, ther “the court shall impose the court.”). I therefore respectfully dissent condition for the minimum time and to the from the majority’s decision to affirm Car- minimum extent necessary to protect the ter’s sentence. 5F1.5(b).
public.” U.S.S.G. Similarly, II by statute, the district court has discretion to restrict the defendant “from engaging I also dissent majority’s from the deci- specified occupation, business, or profes- sion to affirm the imposition of a special sion bearing reasonably direct relation- supervised barring release ship to the conduct constituting the of- Carter from obtaining employment with an 3563(b)(5). fense. ...” 18 U.S.C. institution the FDIC or Feder- al Credit Union. “We review Eighth the district Circuit has had occasion to court’s imposition of the terms and occupational condi- consider restrictions in a few tions of release for an abuse of In United States v. Cooper, cases. *9 Durham, (8th discretion.” United States v. 582, Cir.1999), F.3d 585 this court (8th 921, Cir.2010) (internal 618 F.3d 933 analyzed a condition prohibiting the defen- quotation omitted). marks and citation dant from being employed as a truck driv- government 2. The concedes the condi- 5F1.5. tion of supported by release is not
903 during supervised Rap- against self-employment er “if it involves absence from Cedar The ids, IA., reasonably more than 24 hours.” release is a restriction neces- no the “bears sary public.”). concluded restriction the protect court to unlaw- Cooper’s to relationship offense Carlson, Finally, United States v. 406 to dangerous explosives fully transporting (8th 529, Cir.2005),- this court many Id. at years ago.” a locker storage the upheld prohibiting a condition defen- legisla- result followed from the 586. This working medical dant from in the field. 3563(b)(5), history of 18 tive U.S.C. and analyzed The court both Choate Coo- provides: which per, and it believed the case be more if may The condition similar to Choate because the defendant business, occupation, profession the fraudulently prescription had obtained reasonably relationship a direct bears medication of times over hundreds several nature of the offense.... The Com- years occupation based on his as an ortho- can recognizes hardship mittee pedic physician’s Id. The court assistant. en- preventing person from a from flow these provided concluded facts reason- This specific in a gaging occupation.... ably thus the relationship, direct condition should probation particular did not abuse discretion. Id. necessary reasonably only be used Carlson, Unlike I believe the instant not be public. It should protect Cooper matter is closer to than Choate the con- punishing as a means used little, any, was if because there relation person. victed ship between Carter’s conduct 96,1984 98-225, No. S.Rep. Id. (quoting him prohibiting working condition from (1983)). Accord- U.S.C.C.A.N. agency with an insured the FDIC or court held district court ingly, was Federal Credit Union. Carter never the occu- imposing abused its discretion such nor did employed agency, an pational Id. restriction. underlying facts the instant offense have Choate, v. In States United anything agency to do with such be (8th Cir.1996), consid- this court robbery of cause he committed armed validity preventing of a ered the Moreover, at a individual motel. maintaining self-em- the defendant history only cited basis criminal —the condition, ployment. upheld district court relied on at —did separate defendant three noting the had any reasonably relation not contain direct “that all up perpetuating businesses ended ship agency to an the FDIC or cycle of fraud” for which he the same Accordingly, Credit Federal Union. Id. Based on the defendant’s charged. reasonably occupational restriction was businesses, through fraud these repeated necessary protect public from Car needed court concluded the defendant States Compare ter’s conduct. employment in which he is “an situation Starkes, Cir. Fed.Appx. devices,” according- not left to his own 2010) curiam) (“In case, it (per this ly, self-employment prohibition on “[t]he HR position as an man [the defendant’s] way a reasonable seems permitted and indeed facilitated ager public practices and [the defendant’s] thus did the fraud. The district court de- energies to channel into less [his] in limiting err Id.; plainly [the defendant’s] path.” structive see also United in the field ability employment to seek Coon, Cir.1999) (“In during probation.”), resources her human light long- of defendants’ May, 568 F.3d and United States v. standing pattern and extensive of criminal activities, (holding racketeering prohibition *10 greater deprivation its discretion in bar- ban when it is a of court did not abuse liberty ring having any reasonably necessary. from associ- than the defendant Industry, ation with the Financial Services minimum, Finally, at a the district court consumer, except a because the defen- sufficient failed to individualized position dant as head a had used his of findings support imposition company financial to embezzle services crafting special condition. condi “When Erwin, States v. with United money), release, tion of supervised district (10th Cir.2002) (“[T]he F.3d inquiry court must an individualized make does not record this case establish that underly into the facts and circumstances from prohibiting fishing defendant] [the ing findings a case and make sufficient on reasonably commercially necessary to the special record so as to ensure from conduct public similar to statutory require condition satisfies the convicted, possession that for which he was Walters, United States ments.” ammunition.”). (8th Cir.2011). There is addition, agree In I Carter imposition little basis in for the the record greater deprivation condition involves a condition, appeared which to come liberty reasonably necessary than is under sentencing. out of nowhere When Car Occupational the circumstances. restric- objected, ter’s only counsel court’s may tions tool to protect be effective state, stated basis for the condition was to public reasonably when related to the “Well, history ... because of his that’s conduct, but, defendant’s as discussed going what am Tr. at to do.” Sent. above, there such was no connection this With no connection to Carter’s offense or case, it would thus serve as a history, provided his the court have should greater to Carter’s detriment rehabilita- a more solid before imposing foundation tion begins supervised efforts he once re- United States v. Poi the condition.3 Cf. lease if the court allowed to cut off were tra, Cir.2011) (af entire industry employment opportuni- firming imposition special of a condi Wittig, See United States v. ty. 528 F.3d tion where the for the condition reasons 1280, 1286-89 (reversing a record,” were “discernable from special prohibiting the defendant express thus “the district failure to court’s from being employed as an executive and ly state those did not reasons” entitle the engaging negotiations financial in a relief). defendant to professional capacity because violated herein, upon Based set forth reasons § 5F 1.5 a greater depriva- and it entailed I would vacate condition of liberty tion of is necessary). than While barring release Carter certainly history has of theft and working agency with an robbery, logic, under the he FDIC or Federal Credit Union. I there- could prohibited working in a majority’s fore dissent from the decision to myriad occupations ranging from a gas affirm imposition of that condition. cashier, station clerk to a retail store or virtually any with a place register cash
goods that stolen. could be The case law
does not support occupational such broad robbery 3. Due to the district court's lack of convictions individual- for theft and criminal findings, persuaded ized involving dishonesty am the ma- offenses or a breach of 1785(d)(1)(A); jority's pursuant §§ ap- efforts to make such a record trust to 12 U.S.C. 1829(a)(1)(A). peal by examining prior whether Carter's