PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
07/14/99
No. 98-5450
THOMAS K. KAHN
Non-Argument Calendar CLERK
___________________________
D.C. Docket No. 97-08026-CR-T/P-KLR
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DEMPSEY,
Defendant - Appellant.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(July 14, 1999)
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.
2
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.
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.
3
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.
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.
4
