United States v. Smith ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





        No. 96-1743



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  DAVID ALLAN SMITH,



                                Defendant, Appellant.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                                Boudin, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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             Donald R. Furman, Jr. for appellant.
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             F. Mark Terison,  Assistant United States Attorney, with whom Jay
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        P. McCloskey, United States Attorney, and James L. McCarthy, Assistant
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        United States Attorney, were on brief for appellee.






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                                    March 6, 1997


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                    Per  Curiam.   Defendant-appellant David  Smith appeals
Per  Curiam.
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          the sentence imposed  following his conviction under  18 U.S.C.



          922(g)(1) (felon  in  possession  of  firearm) and  18  U.S.C.



          924(a)(2) (prescribing ten-year maximum sentence).1



                    First, Smith  challenges  a two-level  enhancement  for



          obstruction of justice, see  U.S.S.G   3C1.1 (Nov. 1995),  on the
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          ground that the district court ruling that he attempted to suborn



          perjury was not supported by the requisite subsidiary findings of



          fact,  but relied  instead  only on  the  facts detailed  in  the



          unchallenged  presentence  report  (PSR).   Quite  the  contrary,



          however, the  district court's explicit adoption  of the findings



          proposed in  the PSR  left no doubt  whatever, either  as to  the



          grounds  relied upon  or their  adequacy.   See United  States v.
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          Tracy,  36 F.3d 199, 203  (1st Cir. 1994)  (sentencing court need
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          not set  out subsidiary  findings provided its  ultimate findings



          and grounds plainly appear  in record).  Nor were  the statements



          upon  which the district court findings were based susceptible to



          innocent interpretation.   See  United States  v. Clark,  84 F.3d
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          506,  509-10 (1st  Cir.), cert.  denied, 117  S. Ct.  272 (1996).
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          Thus,  Smith's competing interpretations did not render ambiguous



          the statement given by  the witness whose testimony he  sought to



          suborn.  See id. at 510.
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                    Second, Smith challenges the special  condition imposed


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               1Although Smith  failed to assert his  claims below, thereby

          implicating "plain  error" review, see United  States v. Sanchez-
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          Barreto, 93 F.3d 17, 24 (1st Cir. 1996), cert. denied, 117 S. Ct.
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          711 (1997),  we discern no merit even under a de novo standard of
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          review.



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          by  the district court, prohibiting his use of alcohol during the



          three-year term of supervision following his release from prison.



          See  U.S.S.G.    5D1.3(b)  (sentencing judge  may impose  special
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          conditions reasonably  related to nature of  offense and personal



          history  of  defendant).   Smith  contends  that the  prohibition



          against  using alcohol  constituted an  abuse of  discretion, see
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          United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.) (per curiam),
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          cert. denied,  115 S.  Ct. 1987  (1995); see  also supra  n.1, as
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          there was no evidence linking alcohol to the crime of conviction.



          Once again we must disagree.



                    There  was  abundant  justification  for  imposing  the



          special  condition.  See id. (no abuse of discretion in requiring
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          defendant  to abstain from using  and possessing alcohol in light



          of personal history and continuing alcohol abuse).  Smith conced-



          ed  that he has an "abjectly appalling record of driving vehicles



          while under the  influence of alcohol"  and admitted violating  a



          condition  of his  bail by  consuming alcohol  within twenty-four



          hours before  entering his guilty plea  in this case.   Thus, the



          appropriateness of the special  condition imposed by the district



          court is beyond question.          Affirmed.
Affirmed.
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