United States v. Starkes , 400 F. App'x 788 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXIS STARKES,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:09-cr-00077-JBF-FBS-1)
Submitted: September 30, 2010 Decided: November 3, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Joseph E. DePadilla, Assistant
United States Attorney, Daniel F. Izzo, Third Year Law Student,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexis Starkes appeals the district court’s order
imposing a special condition on her three-year probation
prohibiting her from employment in the human resources industry
or in any other position involving contact with labor contracts.
We affirm.
Starkes served as the human resources manager for the
Crowne Plaza Williamsburg (Virginia). In her role, Starkes was
familiar with the H2-B visa program for foreign workers and
previously had applied for such visas to secure temporary
workers for the Crowne Plaza.
In Fall 2007, Starkes became acquainted with Dzmitry
Krasautsau, a member of a criminal organization. Krasautsau
discussed having Starkes submit fraudulent H2-B visas to help
foreign workers enter the United States. For the program to
operate effectively, Krasautsau required labor service contracts
with hotels that inflated the number of temporary workers the
hotels required. To aid in this scheme, Starkes signed two
fraudulent labor service agreements with Krasautsau’s companies.
The first provided that the Crowne Plaza needed 45 temporary
workers supplied by Valet Services from April 1, 2008, to
January 10, 2009. The second contract stated that the Crowne
Plaza needed 40 temporary workers supplied by Janitorial
Solutions from November 1, 2008, to September 1, 2009.
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Because the Crowne Plaza preferred to hire temporary
workers through multiple vendors, Starkes aided Krasautsau in
creating a fictional company to “bid” against Krasautsau’s two
real companies. Krasautsau eventually mailed the H2-B visa
materials and the labor services contracts to a co-conspirator
in Florida.
In exchange for aiding Krasautsau, Starkes received a
$200 gift card. She was scheduled to receive between 10-15
cents per man hour for each Krasautsau employee working at the
Crowne Plaza, but the scheme was discovered before Starkes
profited from this arrangement.
Based on the foregoing, a criminal information was
filed against Starkes in the Eastern District of Virginia,
charging her with one count of mail fraud, in violation of 18
U.S.C. § 1341 (2006) and 18 U.S.C. § 2 (2006). Starkes waived
her right to an indictment, agreed to a statement of facts, and
pleaded guilty without benefit of a plea agreement. The
district court accepted Starkes’s plea and conducted a
sentencing hearing.
At sentencing, the district court adopted the
Presentence Report, which found that Starkes’s offense level was
5 and her criminal history category I, yielding an advisory
guidelines range of zero to six months’ imprisonment. The
district court sentenced Starkes to a term of probation for
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three years with the special condition that she was “prohibited
from engaging in any aspect of the human resources business or
any similar occupation where [she] would have access to labor
contracts.” * Starkes noted a timely appeal.
We review the imposition of a special condition of
probation or supervised release for abuse of discretion. United
States v. Dotson, 324 F.3d 256, 259-60 (4th Cir. 2003).
Starkes, however, failed to object to the condition at
sentencing, so our review is for plain error. In order to
satisfy the plain error standard, Starkes must show: (1) an
error was made; (2) the error is plain; and (3) the error
affects substantial rights. See United States v. Olano, 507
U.S. 725, 732 (1993). The decision to correct the error lies
within our discretion, and we exercises that discretion only if
the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 732 (citations,
alterations, and internal quotation marks omitted). Starkes
bears the burden of satisfying each element of the plain error
standard. United States v. Vonn, 535 U.S. 55, 59 (2002).
*
The Government misinterprets the district court’s order as
applying only to human resources positions that involve contact
with labor contracts. The district court’s order, however,
makes clear that Starkes is prohibited from any human resources
job as well as any other job that permits her access to labor
contracts.
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The relevant sentencing statute provides that a
district court may impose as a special condition a requirement
that the defendant:
refrain, in the case of an individual, from engaging
in a specified occupation, business, or profession
bearing a reasonably direct relationship to the
conduct constituting the offense, or engage in such a
specified occupation, business, or profession only to
a stated degree or under stated circumstances.
18 U.S.C. § 3563(b)(5) (2006). United States Sentencing
Guidelines Manual § 5F1.5 implements this statutory
authorization by directing that such a condition is appropriate
only if the district court determines:
(1) a reasonably direct relationship existed between
the defendant’s occupation, business, or profession
and the conduct relevant to the offense of conviction;
and
(2) imposition of such a restriction is reasonably
necessary to protect the public because there is
reason to believe that, absent such restriction, the
defendant will continue to engage in unlawful conduct
similar to that for which the defendant was convicted.
If these standards are satisfied, the district court
is further instructed to impose the condition “for the minimum
time and to the minimum extent necessary to protect the public.”
USSG § 5F1.5(b).
In this case, the district court did not commit plain
error by imposing the special condition of probation prohibiting
Starkes from employment in the field of human resources or in
any other position allowing access to labor contracts. First,
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there is a reasonable relationship between the occupation and
the offense — it was Starkes’s role as a human resources manager
that enabled her to commit the offense. In addition, courts
routinely uphold employment restrictions, including those
covering an industry, when the employment and the underlying
criminal offense are closely tied. See United States v. Smith,
445 F.3d 713, 717-19 (3d Cir. 2006) (upholding employment
restriction barring defendant from working for a law firm or
legal entity given lengthy history of preparing fraudulent
documents); United States v. Carlson, 406 F.3d 529, 532 (8th
Cir. 2005) (affirming restriction on defendant working in the
medical field after defendant used his position as a physician’s
assistant to obtain fraudulent prescriptions on hundreds of
occasions); United States v. Choate, 101 F.3d 562 (8th Cir.
1996) (affirming restriction on self-employment for defendant
who ran a series of sham businesses and “demonstrated that he is
given to excesses of salesmanship that tend to creep up in
business after business”).
In this case, it was Starkes’s position as an HR
manager that permitted and indeed facilitated the fraud. The
district court thus did not plainly err in limiting Starkes’s
ability to seek employment in the field of human resources
during her probation. See also United States v. Cardine, 192
Fed. App’x 241 (4th Cir. 2006) (unpublished) (approving district
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court’s imposition of condition barring defendant from seeking
employment in the equestrian industry when defendant’s prior
“employment in the equestrian industry allowed him to accomplish
his crime”). Although the district court “might well have
spelled out in greater detail the findings that are implicit in
its imposition of the occupation restriction, its failure to
make such findings does not invalidate the restriction” because
the condition imposed otherwise satisfies the requirements of
§ 3563(b)(5). Carlson, 406 F.3d at 632. Cf. United States v.
Smith, 332 F.3d 455, 461 (7th Cir. 2003) (the reasonably direct
relationship between defendant’s occupation as a commercial
truck driver and his crime of theft of interstate freight “is so
obvious that we will not comment on it further”).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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