United States v. McCann

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2009
No. 08-30811
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BRYAN C MCCANN
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:08-cr-0034-DDD-JDK-1
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Bryan C. McCann appeals a condition of probation that was imposed under
18 U.S.C. § 3563 after he pleaded guilty to taking over the limit of ducks,
violating non-toxic shot requirements, and hunting migratory birds with an
unplugged gun in violation of 16 U.S.C. § 703. McCann’s argument that the
hunting restriction that was imposed as a condition of his probation is an
occupational restriction that runs afoul of U.S.S.G. § 5F1.5 is unavailing. The
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30811
Sentencing Guidelines do not apply to misdemeanor convictions such as
McCann’s. See § 1B1.9.
McCann’s argument that the hunting restriction is a greater deprivation
of liberty than is reasonably necessary to meet the purposes of 18 U.S.C. § 3553is likewise unavailing. The number of ducks attributed to McCann in connection
with the instant conviction was double the daily bag limit. The offense occurred
on McCann’s property. McCann’s criminal history included other hunting
violations. Thus, the hunting restriction satisfied those § 3553(a) factors
directed at deterrence, the nature and circumstances of the offense, and
McCann’s history and characteristics. See § 3563(b).
Moreover, the hunting restriction does not deprive McCann of liberty or
property beyond what is reasonably necessary to meet the purposes of
§ 3553(a)(2). McCann is not restricted from being on his farm for purposes
unrelated to hunting when hunting is not occurring; nor is he precluded from
managing or supervising activities on his property through an agent when
hunting is occurring. Given that McCann committed the hunting violations on
property he owns, the hunting restriction as a condition of his probation was not
an abuse of discretion. See United States v. Cothran, 302 F.3d 279, 290 (5th Cir.
2002); United States v. Merritt, 639 F.2d 254, 256 (5th Cir. 1981).
AFFIRMED.
2