United States v. Ludvigson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 1, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-4251
v. (D.C. No. 2:04-CR-00846-TS)
(D. of Utah)
LAURIE O. LUDVIGSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and HOLMES, Circuit Judges.
Defendant-Appellant Laurie O. Ludvigson pleaded guilty to two counts of
bank fraud, in violation of 18 U.S.C. § 1344. The district court sentenced her to
27 months of imprisonment and 36 months of supervised release. Both terms
were at the bottom of the applicable Guidelines advisory range. The district court
also imposed occupational restrictions on Ms. Ludvigson’s supervised release.
Ms. Ludvigson now challenges the substantive reasonableness of her sentence and
the district court’s imposition of the occupational restrictions without factual
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
findings. While her appeal was pending, Ms. Ludvigson completed her term of
imprisonment and was released. Because this court determines that Ms.
Ludvigson’s release moots her claim as to the substantive reasonableness of her
27 month custodial sentence, we do not have jurisdiction to consider the merits of
that issue. As to her appeal regarding the occupational restrictions imposed on her
supervised release, our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
Ms. Ludvigson worked at the Bank of Ephraim from 1995 until it collapsed
in June 2004. Thereafter, Far West Bank took over the Bank of Ephraim and
hired Ms. Ludvigson. She worked for Far West Bank from June 2004 until
September 2004.
According to Ms. Ludvigson, from 1999 until June 2004, she stole funds
from the Bank of Ephraim to cover the training and travel expenses of her son, an
“elite gymnast” and member of the United States national team. R., Vol. IV, ¶ 6
at 2 (Presentence Report, dated July 22, 2005) [hereinafter PSR]. In fact, she
embezzled enough money that she was able to pay for his gymnastics expenses
and also some other personal bills. She also confessed that a partial motivation
for her theft “was getting back at” Randy McArthur, the head cashier, whom Ms.
Ludvigson believed to be “so incompetent that he would not notice [the missing
money] when reconciling the correspondence account.” Id. ¶ 7 at 2-3.
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Ms. Ludvigson’s scheme involved depositing “Not Sufficient Funds”
checks into her personal bank accounts until they cleared. Additionally,
whenever customers forgot to include all of their checks on their deposit slips,
Ms. Ludvigson deposited the checks not included on the deposit slips into her
own account. Further, she stole approximately $3,000 to $4,000 from the Bank of
Ephraim by filling out a general ledger ticket and taking the money. During her
roughly five years of embezzling money at the Bank of Ephraim, she took an
estimated $279,763.41.
At one point, Mr. McArthur confronted Ms. Ludvigson about the money
she stole by filling out the general ledger ticket but agreed to let her keep her job
if she repaid the money. Ms. Ludvigson then borrowed money from her father to
replenish the stolen funds. 1
This incident did not end Ms. Ludvigson’s bank fraud. Undaunted, Ms.
Ludvigson continued her pattern of embezzlement, even stealing from her new
employer when Far West Bank took over the Bank of Ephraim. From June until
September 2004, she defrauded Far West Bank of $24,853.99.
In August 2004, Ms. Ludvigson deposited into her own account a $710
check belonging to the City of Ephraim that the city mistakenly left off a deposit
1
Unbeknownst to Ms. Ludvigson, Mr. McArthur embezzled even
larger sums of money during this same time period, which ultimately contributed
to the collapse of the bank in 2004.
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slip. When the city notified Far West Bank of the discrepancy in its account, the
bank investigated and discovered that Ms. Ludvigson had been embezzling for
approximately five years. The bank management forwarded this information to
the Federal Bureau of Investigation.
On December 15, 2004, the government indicted Ms. Ludvigson on four
counts of bank fraud, in violation of 18 U.S.C. § 1344. On June 9, 2005, pursuant
to a plea agreement, she pleaded guilty in the United States District Court for the
District of Utah to two counts in exchange for dismissal of the remaining two
counts. Ms. Ludvigson stipulated that the amount of loss was $304,617.40.
At the sentencing hearing on August 31, 2005, the sentencing court
announced a “tentative sentence” of 27 months of imprisonment with 36 months
of supervised release, advising that “counsel will be given the opportunity to
make legal objections to the sentence before it is actually imposed.” R., Vol. III,
Doc. 45, at 6 (Sentencing Hr’g, dated Aug. 31, 2005). The proposed sentence was
at the bottom of the advisory Guidelines range: the top was a prison term of 33
months and a supervised release term of 60 months.
The district court also announced its intention to impose special conditions
of supervised release on Ms. Ludvigson, including inter alia, requiring her to
inform any employers or future employers of her conviction and supervision
status; to abide by occupational restrictions that prohibit her from accepting
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employment in a federally regulated financial institution or having direct or
indirect control over the assets or funds of others; and to refrain from opening any
new lines of credit without the probation officer’s approval. In imposing these
conditions, however, the district court made no factual findings for the record.
When given the opportunity to make legal challenges to the sentence,
neither the government nor Ms. Ludvigson objected. Ms. Ludvigson now appeals,
however, contending that her sentence is substantively unreasonable under the 18
U.S.C. § 3553(a) factors and that two of the special supervised release conditions
imposed by the court should be vacated because the court failed to make the
required findings.
II. DISCUSSION
A. Substantive Reasonableness of the Sentence
Before we address the merits of Ms. Ludvigson’s appeal, we must
examine our jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94-95 (1998); United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000).
Article III of the United States Constitution only extends federal judicial power to
cases or controversies. U.S. Const. art. III, § 2, cl. 1. “To invoke the jurisdiction
of a federal court, a litigant must have suffered, or be threatened with, an actual
injury . . . likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477 (1990). When the injury for which an appellant
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seeks judicial redress is resolved or disappears prior to the appellate court’s
decision, there is no longer an Article III case or controversy. See Burke v.
Barnes, 479 U.S. 361, 363 (1987); Meyers, 200 F.3d at 718.
Ms. Ludvigson completed her 27 month term of imprisonment and is
serving her 36 month term of supervised release. The question is thus whether
Ms. Ludvigson’s release has rendered her appeal, as to the substantive
reasonableness of her sentence, moot. Ms. Ludvigson admits that a decision in her
favor on her claim that her sentence was substantively unreasonable can neither
reduce the amount of time she spent in custody nor reduce the length of her
supervised release. See Notification of Apparent Mootness of Portions of Appeal
filed by Aplt. at 1 (filed Aug. 20, 2007) (citing United States v. Johnson, 529 U.S.
53, 54 (2000), which holds that “excess prison time” served by a defendant on
invalidated criminal convictions cannot be “credited to the supervised release”
period to reduce its length). Given her admission, we conclude that Ms.
Ludvigson is no longer threatened with an actual injury that is likely to be
redressed by a favorable decision. See Lewis, 494 U.S. at 477; Burke, 479 U.S. at
363. Therefore, her appeal on this issue is dismissed as moot.
B. Fact Finding for Supervised Release Conditions
Ms. Ludvigson contests the district court’s imposition of the following two
conditions of supervised release: (1) “defendant is to inform any employer or
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prospective employer of her current conviction and supervision status”; and (2)
“defendant shall not have direct or indirect control over the assets or funds of
others.” R., Vol. I, Doc. 31, at 2 (Criminal J., dated Aug. 31, 2005). Specifically,
Ms. Ludvigson challenges “whether the district court made the findings required
by the governing guideline.” Aplt. Opening Br. at 37. 2
Both of the conditions Ms. Ludvigson challenges constitute occupational
restrictions. See United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005)
(“Because an employer notification requirement limits the terms on which a
defendant may engage in the specified occupation, it must be treated as an
occupational restriction.”); R., Vol. III, Doc. 45, at 7-8 (characterizing prohibition
on control over others’ funds as an occupational restriction).
The statute authorizing supervised release specifically provides for the
imposition of occupational restrictions. See 18 U.S.C. § 3583(d) (stating that the
sentencing court “may order” supervised release conditions of the kind identified
as “discretionary conditions” applicable to probation, including occupational
restrictions); see also 18 U.S.C. § 3563(b)(5) (specifying the particular
occupational restrictions incorporated by § 3583(d)). The Guidelines expressly
identify occupational restrictions as one of the “special conditions” that may be
2
Ms. Ludvigson’s release from prison does not render her challenge to
the conditions of her supervised release moot. See United States v. Tran, 285 F.3d
934, 936 n.1 (10th Cir. 2002).
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imposed under certain circumstances. See U.S. Sentencing Guidelines Manual §
5D1.3(e)(4). Guidelines § 5F1.5 details those circumstances. 3
3
Section 5F1.5 of the Guidelines (Occupational Restrictions) reads:
(a) The court may impose a condition of probation or supervised
release prohibiting the defendant from engaging in a specified
occupation, business, or profession, or limiting the terms on which
the defendant may do so, only if it determines that:
(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.
(b) If the court decides to impose a condition of probation or
supervised release restricting a defendant’s engagement in a specified
occupation, business, or profession, the court shall impose the
condition for the minimum time and to the minimum extent necessary
to protect the public.
U.S. Sentencing Guidelines Manual § 5F1.5 (2004). The U.S. Probation Office
used the 2004 edition of the Sentencing Guidelines Manual in computing Ms.
Ludvigson’s sentence. The parties did not object at sentencing; nor do they raise
any concerns about this use on appeal. Consequently, we look to the 2004
Guidelines Manual in deciding this case.
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The threshold question is what standard of review should be applied. 4 Ms.
Ludvigson did not object to the sentencing court’s failure to make factual
findings. Absent such an objection, “we review for plain error.” United States v.
Barajas, 331 F.3d 1141, 1145 (10th Cir. 2003) (citing United States v. Fabiano,
169 F.3d 1299, 1307 (10th Cir. 1999)). 5
Ms. Ludvigson argues that her claim should be reviewed under a de novo
standard of review rather than a plain error standard because she had no notice of
the occupational restrictions. As support, she points to our holding in United
States v. Bartsma, 198 F.3d 1191 (10th Cir. 1999). 6 There, we concluded that a
4
Indeed, Ms. Ludvigson asserts that the standard-of-review issue is
“critical to resolving” her claim that the district court erred in failing to make
findings regarding the two occupational restrictions. Aplt. Reply Br. at 7.
5
Ms. Ludvigson does not challenge the length of her supervised
release. Nor does she ground her appeal in an objection to the supervised release
conditions themselves. Ordinarily, an abuse-of-discretion standard would govern
our review of such challenges. See Gall v. United States, 128 S. Ct. 586, 594
(2007) (“Our explanation of ‘reasonableness’ review in the Booker opinion made
it pellucidly clear that the familiar abuse-of-discretion standard of review now
applies to appellate review of sentencing decisions.”); United States v. Pugliese,
960 F.2d 913, 915 (10th Cir. 1992) (“Conditions of supervised release . . . are
reviewed for abuse of discretion.”). Ms. Ludvigson maintains, however, that a de
novo standard is appropriate (rather than an abuse-of-discretion standard) because
her challenge raises a pure issue of law. We need not explore this contention,
because ultimately we conclude that this case is appropriately resolved under a
plain error standard of review.
6
In an en banc footnote in United States v. Atencio, 476 F.3d 1099(10th Cir. 2007), we overturned a portion of Bartsma. Specifically, we stated:
“[I]t is our unanimous decision to overturn the point of law articulated in Bartsma
(continued...)
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defendant convicted of a felon-in-possession offense had not forfeited his
objections to the special condition of his supervised release that required him to
register as a sex offender. 7 Id. at 1198. We reasoned that “the complete lack of
notice made it impossible for the parties to anticipate the nature of the special
condition and short-circuited the significance of any opportunity to comment.”
Id.
6
(...continued)
that a defendant does not forfeit his right to appeal by failing to object to Rule 32
notice error at sentencing.” Id. at 1105 n.6 (en banc footnote). We applied
Atencio’s en banc holding prospectively, “to avoid unfairness to the parties.” Id.
Accordingly, this aspect of Atencio has no bearing on our resolution of this case.
Arguably, given Ms. Ludvigson’s framing of her challenge infra as not involving
a claim of entitlement to advance notice (i.e., in effect, as not involving an
assertion of Rule 32 error), our en banc holding in Atencio would not have been
dispositive in any event. This arguably would have been the situation because in
Atencio we clearly viewed the district court’s imposition – without advance notice
– of a supervised release sex offender registration requirement as a species of
“Rule 32(h) error,” when imposed in “a non-sexual offense context” and limited
our discussion of the notice-forfeiture question to that setting. Indeed, Ms.
Ludvigson suggests that Atencio’s en banc holding would have been inapposite.
See Aplt. Letter Pursuant to Fed. R. App. P. 28(j) (“Unlike with a notice claim,
Ms. Ludvigson would have had to know that specific findings were necessary for
occupational restrictions to object to the court’s failure to make them.”).
7
Bartsma discusses whether the challenge was waived, but we have
subsequently clarified that we are discussing a forfeiture of a right, rather than a
waiver, when the right has not been intentionally relinquished; consequently,
plain error review would be available. See Atencio, 476 F.3d at 1105 n.6; United
States v. Teague, 443 F.3d 1310, 1314 (10th Cir.), cert. denied, 127 S. Ct. 247(2006).
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Ms. Ludvigson emphasizes that hers is not a claim of “entitle[ment] to
advance notice” of the occupational restrictions. Aplt. Op. Br. at 35-36. That is,
she does not argue that absent advance notice the district court could not legally
impose the occupational restrictions. Instead, Ms. Ludvigson contends that
“[w]ith no actual or constructive notice, the lack of objection to the district
court’s failure to make the findings . . . is excused” and plain error review is
inappropriate. Aplt. Reply Br. at 10. She reasons that “Bartsma holds broadly
that absent notice of a special condition” this principle of excuse controls. Id. at
9.
We need not decide whether there is any merit to Ms. Ludvigson’s
somewhat novel reading of the standard-of-review implications of Bartsma.
Specifically, we conclude that Ms. Ludvigson did have notice of the restrictions –
albeit constructive notice. And, as Ms. Ludvigson’s argument at least tacitly
acknowledges, where a defendant receives notice, the failure to object is not
excused and plain error review applies.
As noted, the relevant statutory and Guidelines provisions expressly
contemplate that the sentencing court may impose an occupational restriction as a
condition of supervised release. See 18 U.S.C. §§ 3583(d), 3563(b)(5); U.S.
Sentencing Guidelines Manual §§ 5D1.3(e)(4), 5F1.5. Accordingly, these
restrictions were within the universe of discretionary supervised release
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conditions “to which all defendants are alerted.” Barajas, 331 F.3d at 1145(internal quotation marks omitted) (quoting United States v. Lopez, 258 F.3d
1053, 1056 (9th Cir. 2001)); see also United States v. Turner, 88 F. App’x 307,
316 (10th Cir. 2004) (concluding that these provisions supported holding of
constructive notice). 8
At least on these facts, this legal regime was sufficient to place Ms.
Ludvigson on constructive notice. Given that her crimes occurred in the context
of her employment and involved affirmative, repeated acts of financial
8
Ms. Ludvigson suggests that reliance on the constructive-notice
holding of Barajas would be misplaced because, unlike this case, the supervised
release conditions in Barajas were recommended by the Guidelines. See Aplt.
Reply Br. at 9 (“Occupational restrictions are not like conditions the guidelines
make standard or recommended, which a defendant should be aware are in
play.”). Nothing in the language of Barajas, however, suggests that it has such a
limited reach. Moreover, occupational restrictions are front and center in the
Guidelines as an available discretionary condition of supervised release: Not only
are occupational restrictions listed in § 5D1.3 with other possible special
conditions, the Guidelines address them in a separate section, § 5F1.5. This lends
significant support to the idea that a reasonable defendant should have known that
the imposition of such restrictions was possible. E.g., Turner, 88 F. App’x at 316
(holding that the statutory and Guidelines provisions that “authorize the
imposition of an occupational restriction” give constructive notice (emphasis
added)). In any event, on the facts of this case where there is no lack of an
“obvious nexus,” Bartsma, 331 F.3d at 1199 n.6, with occupational restrictions,
we cannot accept Ms. Ludvigson’s contention that her failure to object should be
excused. Cf. United States v. Begay, 470 F.3d 964, 976 (10th Cir. 2006)
(declining to apply plain error review and excusing defendant’s failure to object
to the “district court’s novel interpretation of Booker” because “it was an error
that Mr. Begay would have had no reason to anticipate”), cert. granted, 128 S. Ct.
32 (2007).
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misconduct, Ms. Ludvigson cannot plausibly argue that she did not have “any
inkling” that (a) the court might impose occupational restrictions, and (b) such
restrictions might relate to her control of money and her interactions with her
employers. Compare Bartsma, 198 F.3d at 1199 n.6, 1200 n.7 (where court
imposed sex offender registration requirement without “any obvious nexus” to
defendant’s felon-in-possession crime, parties did not have “any inkling” that the
requirement was under consideration and, consequently, “were utterly unprepared
to make reasoned arguments”), with United States v. Brown, 235 F.3d 2, 4 (1st
Cir. 2000) (“Thus, the guidelines contemplate (and give the appellant
constructive notice) that the sentencing court will tailor supervised release
conditions to fit the circumstances of the offense and the characteristics of the
offender.”(emphasis added)). Cf. Barajas, 331 F.3d at 1145 (noting that “there
may be occasions when a defendant has a good reason for not being prepared to
address at sentencing the imposition of a condition of supervised release listed in
the Sentencing Guidelines,” but “Defendant has not suggested any reason why his
counsel could not have anticipated the conditions imposed”).
Accordingly, notwithstanding Ms. Ludvigson’s arguments for a more
searching standard of review, we apply a plain error standard to her sentencing
challenge. Under the plain error standard, to secure relief, a defendant must
establish (1) there is error; (2) that is plain; (3) that affects substantial rights (i.e.,
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causes prejudice). United States v. Olano, 507 U.S. 725, 732 (1993); see also
United States v. Gonzalez-Huerta, 403 F.3d 727, 732, 736 (10th Cir. 2005) (en
banc) (noting that “placing the burden on the appellant is one of the essential
characteristics distinguishing plain error from harmless error”). If all three
conditions are met, then an appellate court may exercise its discretion to notice a
forfeited error, if the defendant further demonstrates that (4) the error seriously
affects the fairness, integrity, or public reputation of the proceedings. See e.g.,
Gonzalez-Huerta, 403 F.3d at 736; United States v. Ahidley, 486 F.3d 1184, 1188
n.4 (10th Cir.), cert. denied, 128 S. Ct. 424 (2007).
Where a defendant suffers non-constitutional error, as alleged here, the
standard for satisfying the fourth prong of the plain error test is “demanding.”
Gonzalez-Huerta, 403 F. 3d at 737; see also United States v. Dowlin, 408 F.3d
647, 671 (10th Cir. 2005) (“Where only non-constitutional Booker error is at
issue, this standard is especially demanding.”). A defendant must show that
allowing her non-constitutional error to stand would be “particularly egregious”
and would constitute a “miscarriage of justice.” United States v. Gilkey, 118 F.3d
702, 704 (10th Cir.1997) (quoting United States v. Ivy, 83 F.3d 1266, 1295 (10th
Cir. 1996)); see also United States v. Treto-Martinez, 421 F.3d 1156, 1161 (10th
Cir. 2005) (conducting “our fourth prong analysis”).
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Ms. Ludvigson’s challenge falls short on the third and fourth prongs of the
plain error standard. 9 As to the third prong, she has failed to establish prejudice.
In particular, Ms. Ludvigson has made no meaningful showing that there is a
reasonable probability that the outcome would have been any different had the
court made explicit findings. See Gonzalez-Huerta, 403 F.3d at 733 (“To meet
this burden, the appellant must show ‘a reasonable probability that, but for the
error claimed, the result of the proceeding would have been different.’” (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004))).
Ms. Ludvigson makes two principal arguments concerning the third prong:
first, that she is “prejudiced by unnecessary requirements that will limit her
employment,” Aplt. Opening Br. at 44 n.3; and second, that her “contrition and
rehabilitative work undermine confidence that the district court would make this
finding, showing prejudice as to both challenged restrictions,” Aplt. Reply Br. at
13 n.4.
The first argument, however, does not target the kind of prejudice with
which the plain error standard is concerned – that is, prejudice arising from a
reasonable probability that but for the district court’s error the outcome would
9
We do not decide whether Ms. Ludvigson has shown error that is
plain under the first two prongs of the standard. Rather, we conclude that even if
Ms. Ludvigson were to make that showing, she would not meet her burden under
the third and fourth prongs of the plain error standard; therefore, her challenge
fails.
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have been different (here, that but for the alleged error, the district court would
not have imposed the occupational restrictions). Olano, 507 U.S. at 734. Cf.
Dowlin, 408 F.3d at 670 (in the context of constitutional Booker error, stating that
it is “highly unlikely that the factual findings of the district court affected
[defendant’s] substantial rights” where defendant failed to argue the jury would
not have reached the same conclusion).
The second argument is insufficient to raise a reasonable probability. Ms.
Ludvigson’s contrition and rehabilitative efforts – however sincere – arose only
after the government charged her with serious, bank fraud crimes. Indeed, even
Mr. McArthur’s discovery of an instance of her theft did not lead Ms. Ludvigson
to pause and reflect upon the wrongfulness of her conduct and forswear a criminal
life-style. Instead, she kept stealing. Under these circumstances, we would be
hard-pressed to conclude that if the district court had made findings – including
findings addressing Ms. Ludvigson’s post-charge positive conduct – that there is a
reasonable probability that the court would have decided to reject the
occupational restrictions.
Our conclusion is bolstered by the ample support in the record for the
restrictions. We will not find plain error where the record clearly demonstrates a
basis for the district court’s actions, despite its failure to make adequate factual
findings. See United States v. Diaz, 176 F.3d 52, 118 (2d Cir. 1999) (no plain
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error where record “clearly demonstrates” basis for district court’s sentencing
enhancement).
Generally, a district court enjoys broad discretion in imposing conditions of
supervised release. See, e.g., United States v. Erwin, 299 F.3d 1230, 1232 (10th
Cir. 2002). On this record, we clearly would not conclude that the district court
strayed from the permissible zone of discretion in imposing the restrictions. Ms.
Ludvigson engaged in a multi-year bank fraud in which she repeatedly stole
money from her employers and disregarded their interests. 10 In particular, Ms.
Ludvigson exhibited a strong commitment to a criminal life-style, evidenced by
the duration of her pattern of wrongdoing and her refusal to be chilled by Mr.
McArthur’s detection of her theft.
The district court would not have erred under these circumstances in
concluding that its conditions were reasonably necessary (1) to reduce the risk
that she would engage in future financial irregularities (i.e., by limiting her
control over the funds of others); and (2) to protect future employers from
unwittingly exposing themselves to that risk (i.e., by requiring her to inform her
current or prospective employers of her conviction). Cf. Souser, 405 F.3d at 1167(where defendant’s offense conduct involved non-employer-related false
10
In fact, the district court found that Ms. Ludvigson abused a position
of private trust under Guidelines § 3B1.3. Ms. Ludvigson did not challenge that
finding before the district court, nor does she do so on appeal.
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statements and passive receipt of governmental subsidies under false pretenses,
district court’s error in failing to make findings to justify employer-notification
condition was not harmless).
Furthermore, the district court would not have abused its discretion in
concluding that its restrictions appropriately reflected the parsimony principles
embodied in Guidelines § 5F1.5 (i.e., “the court shall impose the condition for the
minimum time and to the minimum extent necessary to protect the public”). It
could have imposed these appropriate occupational restrictions for five years, but
instead chose to do so for three.
As for the fourth prong of the plain error test, we easily conclude that the
district court’s omission of findings did not seriously affect the fairness, integrity,
or public reputation of the proceedings. Ms. Ludvigson has not directed us to any
evidence in the record that casts doubt on the fairness of the conditions imposed.
See Dowlin, 408 F.3d at 672 (“Dowlin has pointed to nothing in the record that
casts doubt on the fairness of her sentence. . . . the record contains ample
evidence supporting the sentence imposed. . . .”). In contrast, as reflected in the
third-prong discussion, the district court could have easily pointed to the reasons
underlying its imposition of the occupational restrictions. Cf. United States v.
Aptt, 354 F.3d 1269, 1287 (10th Cir. 2004) (noting that because the court could
have easily identified additional facts to support its sentencing enhancement, the
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failure to make specific findings did not seriously affect the fairness of the
proceedings and was not plain error).
We are convinced upon review of the record that the occupational
restrictions imposed on Ms. Ludvigson’s supervised release were not “particularly
egregious” or a “miscarriage of justice.” Gonzalez-Huerta, 403 F.3d at 737-38.
In sum, Ms. Ludvigson has failed to establish grounds for us to recognize under
plain error review any error by the district court in imposing the two occupational
restrictions at issue.
III. CONCLUSION
We DISMISS as moot Ms. Ludvigson’s appeal as to the substantive
reasonableness of her sentence. Furthermore, reviewing Ms. Ludvigson’s
challenge to her supervised release conditions under the demanding plain error
standard, we discern no basis for disturbing the district court’s sentencing order
and, accordingly, AFFIRM.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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