United States v. Dempsey , 180 F.3d 1325 ( 1999 )

UNITED STATES of America, Plaintiff-Appellee,
v.
James DEMPSEY, Defendant-Appellant.
No. 98-5450
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
July 14, 1999.
Appeal from the United States District Court for the Southern District of Florida. (No. 97-8026-T/P-KLR),
Kenneth L. Ryskamp, Judge.
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
James Dempsey appeals the district court's refusal to set aside his probation officer's decision to
impose an occupational restriction as a condition of his supervised release.
In December 1993, Dempsey was convicted of two counts of mail fraud, in violation of 18 U.S.C.
§ 1341, for fraudulently obtaining payment for rare coins. He was sentenced in the Eastern District of New
York to twelve months and one day of prison to be followed by five years of supervised release. The
sentencing court did not impose any occupational restriction as a condition of his supervised release.
In November 1997, jurisdiction over Dempsey during the remainder of his term of supervised release
was transferred to Southern District of Florida. At some point after that transfer, Dempsey's probation officer
imposed an occupational restriction as a condition of Dempsey's supervised release which prohibited him
from engaging in the rare coin business.
In July 1998, Dempsey filed a motion pursuant to Rule 32.1(b) of the Federal Rules of Criminal
Procedure requesting the district court to either modify his supervised release by terminating it, or,
alternatively, to clarify the terms of his supervised release by setting aside the probation officer's imposition
of the occupational restriction. He also requested the court to conduct a hearing on that motion. The district
court denied Dempsey's motion and his request for a hearing. On appeal, Dempsey contends the district court
erred in refusing to set aside the probation officer's imposition of the occupation restriction.1 We agree.
A probation officer lacks the authority to impose an occupational restriction as a condition of
supervised release. Our conclusion in that regard is compelled by the fact that 18 U.S.C. § 3583(d), which
authorizes imposition of occupational restrictions as a condition of supervised release, refers exclusively to
a court's authority to impose occupational restrictions. See 18 U.S.C. § 3583(d). Likewise, U.S.S.G. § 5F1.5,
which implements Congress' mandate in 18 U.S.C. § 3583(d), authorizes only a court to impose occupational
restrictions and restricts its authority to do so to those instances where the court specifically finds (1) "a
reasonably direct relationship" between the occupational restriction and the conduct relevant to the
defendant's offense and (2) the restriction is "reasonably necessary to protect the public" from the possibility
the defendant will "continue to engage in unlawful conduct similar to that for which he was convicted."
U.S.S.G. § 5F1.5. Congress probably could have chosen to grant probation officers the discretion to impose
occupational restrictions, but it did not. The district court therefore erred by refusing to set aside the
probation officer's imposition of an occupational restriction.
We are unpersuaded by the government's argument that because Dempsey was required to engage
in a lawful occupation as a condition of his supervised release, it was reasonable for the probation officer to
conclude Dempsey could not lawfully engage in the coin business in light of his past criminal behavior in that
business. As we have already explained, Congress did not leave it to probation officers to decide when it is
reasonable to impose an occupational restriction. If the government believes an occupational restriction is
justified in Dempsey's case—a matter which we have no occasion to address on this record—it can ask the
district court to impose that restriction.
1
Dempsey does not appeal the district court's refusal to terminate his supervised release. He does
appeal the district court's refusal to conduct a hearing on his request to set aside the occupational
restriction, but that issue is moot in light of our conclusion that the district court erred in refusing to set
aside the probation officer's imposition of the occupational restriction.
2
The district court's August 16, 1998 order is VACATED to the extent it refuses to set aside the
probation officer's imposition of the occupational restriction. The case is REMANDED for further
proceedings in light of this opinion.
3