Unitеd States of America, Plaintiff - Appellee, v. Kenneth Camp, Defendant - Appellant.
No. 04-1310
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: June 16, 2005
Submitted: November 17, 2004
JOHN R. GIBSON, Circuit Judge.
Kenneth Camp pleaded guilty to one count of being a felon in possession of a firearm in violation of
Officers from the Pine Bluff, Arkansas, Police Department responded to a call that shots had been fired from а car. An officer saw a car matching the description they had received. The officer obtained the license plate number and, as he followed it, the vehicle began to move more erratically and quickly. The police car deliberately stayed with the vehicle and a chase ensued, joined by other officers from the department. The officers eventually stopped the car. Camp was its only occupant, and a loaded .45 caliber weapon was found on the passenger seat. Because Camp had previously been convicted of the second degree felony of battery, he was indicted for being a felon in possession of a firearm.
Camp received a sentence of thirty-six months in prison followed by three years of supervised release. The district court specifically declined to impose a fine, telling Camp, “I‘m not going to impose a fine
Camp argues on appeal that the district cоurt abused its discretion by imposing the special release condition that requires him to reveal financial information to the probation office upon request. While the appeal was pending but before the case was submitted, he also raised a Sixth Amendment challenge to the increase in the sentence he received for an earlier conviction without a jury having decided whether that offense was a crime of violence. Because Camp did not preserve this issue for appeal, we review it for plain error.
I.
The parties disagree on the standard of review with respect to the special condition of supervised release because they have differing views as to whether Camp raised a timely objection at the sentencing hearing. Camp asserts that he did object so as to preserve the claim of error under
The transcript reveals that the district court announced the special condition immediately following her recitation of the sentence. The condition had not been reсommended in the presentence investigation report, so Camp and his counsel had no notice that it would be imposed. As soon as the district court concluded, Camp‘s counsel sought permission to make an inquiry about the required disclosure of financial information. She asked, “[B]eing that this is not а white collar crime, would he still be . . . required to do that?” The district court responded:
Yes, he will be. Because I want him to support his children and he hasn‘t been doing that. That‘s going to be a special condition, that he pay child support. He will not only be in violation of the state court orders, he will be in violation of supervised release for me. And I‘m going to direct the supervising officers to monitor that and to report to me any violation. So he might have to go back to prison if he fails to pay child support. That‘s important to me.
This exchange demonstrates that defense counsel questioned the propriety of the special condition because it was imposed in an atypical case. See U.S.S.G. § 5D1.3(d) (access to financial information recommended as special condition of supervised release if court imposes order of restitution, forfeiture, notice to victims, or fine). The district court understood and responded to the question, making it clear that she was not going to reconsider her decision. These are the hallmarks of preserving an issue for appeal. Cf. United States v. Henkel, 358 F.3d 1013, 1015 (8th Cir. 2004) (plain error review appropriate for review of terms and conditions of supervised release
Because the record is sparse, however, and because the legal analysis yields the same result under either plain error or abuse of discretion, we need not decide whether counsel‘s inquiry satisfies the requirements of Rule 51. The United States Sentencing Commission2 duplicated and consolidated language contained in sentencing statutes that directs district courts to consider particular issues in determining conditions of supervised release. Certain conditions are required under
The court may order, as a further condition of supervised release, to the extent that such condition—
- is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
- involves no greater deprivation оf liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
- is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any othеr condition it considers to be appropriate.
As subsection (1) above directs, any discretionary conditions must be reasonably related to:
- the nature and circumstances of the offense and the history and characteristics of the defendant; [and]
- the need for the sentence imposed — . . .
- to afford adequate deterrence to criminal conduct;
- to protect the public from furthеr crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; . . .
We have rejected conditions of release that were imposed without any evidence of their need and were not reasonably related to deterrence, protecting the public, or providing necessary training or correctional treatment. United States v. Scott, 270 F.3d 632 (8th Cir. 2001) (district court abused its discrеtion by imposing special conditions of sex offenders on defendant convicted of armed bank robbery because conditions were not related to offense of conviction and not reasonably necessary to deter defendant from repeating fifteen-year-old sex crime); United States v. Kent, 209 F.3d 1073, 1075-78 (8th Cir. 2000) (defendant convicted of mail fraud and financial institution reporting violation should not have been subjected to condition whereby probation officer could force participation in counseling because condition bore no relationship to crime, it had
Camp was convicted of a status offense, that of being a felon in possession of a firearm. Clearly, the condition of release is not reasonably related to this offense. However, the condition is reasonably related to Camp‘s history of non-payment of his child support obligations. We have noted that it is not necessary for a special condition to be related to all of the statutory factors, but rаther they are to be weighed independently. Kent, 209 F.3d at 1076 n.3 (“[I]t is not necessary that all of the factors . . . be present in order to avoid a finding of abuse of discretion; rather, each are independent factors to be weighed. The special condition imposed need not be related to each and every one of the factors.“). Section 3583 allows district courts to impose conditions in light of the defendant‘s history and characteristics and for the purposes of deterrence and protecting the public from future criminal conduct. Camp was subject to a state court ordеr of child support that was in arrears. A condition that monitors Camp‘s financial obligations will help prevent him from diverting money away from his child support payments and will protect the financial needs of his children. See United States v. Barajas, 331 F.3d 1141, 1143-47 (10th Cir. 2003) (district court did not err in imposing conditions on defendant who pleaded guilty to bеing a felon in possession of a firearm requiring him to pay child support and undergo mental health counseling because the conditions relate to his history and characteristics).
The district court did not restrict Camp‘s liberty more than is reasonably necessary to fulfill the sentencing goals. The condition requires Camp to disclose financial information upon the request of the probation office and to obtain that office‘s approval before opening any new lines of credit. It is not a prohibition on behavior, but rather a monitoring device that is to be used by the probation office to complement the conditions that he follow state court child support orders and remain employed or actively seek employment. Although this condition is more typically used where the defendant is ordered to pay restitution or a fine, it is also available in other аppropriate situations. See United States v. Behler, 187 F.3d 772, 780 (8th Cir. 1999) (defendant not ordered to pay restitution or fine after conviction on drug trafficking and related offenses but required to give probation officer access to financial information because it would allow monitoring his financial situation to deteсt return to drug distribution lifestyle).
The district court did not err by requiring Camp to make financial disclosures to the probation office upon request.
II.
Before the submission of this appeal, Camp‘s counsel provided a letter pursuant to
Camp‘s argument is unavailing. The fact of a prior conviction need not be submitted to a jury or proved beyond a reasonable doubt. Booker, 125 S. Ct. at 756. This court has held that the nature of a conviction is to be treated no differently from the fact of a conviction fоr purposes of Sixth Amendment analysis. “Once the sentencing court determines that a prior conviction exists, it is a legal question for the court whether the crime meets the ‘crime of violence’ definition of § 4B1.2 of the United States Sentencing Guidelines.” United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (decided post-Booker). This determination is made by examining the nature of the еxpressly charged conduct. United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001). In Camp‘s case, the charged conduct was battery. Because the district court was entitled to determine whether Camp had an earlier conviction for a crime of violence, Camp‘s sentence does not involve a Sixth Amendment violation.
Camp did nоt object in the district court to his sentence on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely, or the constitutionality of the Guidelines. Accordingly, we review under the plain error standard.
The district court committed an error that was plain by applying the Guidelines as mandatory, a practice that is no longer valid under Booker. Pirani, 406 F.3d at 550. As for the third part of the Olano test, Camp has the burden to demonstrate “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551. The record reveals no indication that the district court would have sentenced Camp to a shorter term but for the Guidelines. The record is silent on the issue, so Camp is unable to meet his burden. Acсordingly, we conclude that Camp suffered no prejudice from the plain error.
We affirm.