FILED
NOT FOR PUBLICATION SEP 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30287
Plaintiff - Appellee, D.C. No. 4:11-cr-00088-SEH-1
v.
MEMORANDUM*
CHARLES J. FLECK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted August 28, 2013
Seattle, Washington
Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.
Defendant-Appellant Charles J. Fleck (“Fleck”) appeals the district court’s
denial of his motion to modify the conditions of his probation so that he may travel
to Canada for work, as well as the court’s additional requirement that Fleck surrender
his passport and file a new financial affidavit. We affirm.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Fleck’s motion provided only cursory assertions that his employer “builds paint
booths in the United States and Canada” and sought the generic ability to “travel to
Canada for employment purposes,” without further elaboration. The court reasonably
expressed concern that the motion contained no information regarding proposed dates
of travel, length of absences, or a proposed plan for monitoring Fleck while he was
out of the country. Without more specific details about the proposed travel or
verification from the employer that such travel was actually necessary, it was not an
abuse of discretion for the district court to deny the motion. See United States v.
Garcia, 522 F.3d 855, 860 (9th Cir. 2008) (noting that this court reviews supervised
release conditions for an abuse of discretion).
The record as a whole adequately reflects that the district court considered the
relevant factors, including whether a blanket permission to leave the country would
provide adequate supervision and deterrence for Fleck. See United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“The district court need not tick off each
of the § 3553(a) factors to show that it has considered them.”); United States v. Betts,
511 F.3d 872, 876 (9th Cir. 2007) (“[A] sentencing judge is not required to articulate
. . .the reasons for imposing each condition . . . where [this court] can determine from
the record whether the court abused its discretion.” (internal quotation marks and
citation omitted)).
2
The district court did not plainly err by requiring Fleck to surrender his
passport, as this was reasonably related to enforcing the court’s existing and valid
travel restriction on Fleck, which Fleck did not contest at the initial sentencing.
Moreover, even if the court erred, it did not affect Fleck’s substantial rights, as he was
already precluded from leaving the district without permission and thus lacked the
ability to use the passport. See United States v. Watson, 582 F.3d 974, 981-82 (9th
Cir. 2009).
Nor did the district court plainly err by requiring Fleck to complete a new
financial affidavit under the Criminal Justice Act. The court has an ongoing
obligation to make “appropriate inquiry” into the defendant’s financial situation and
is statutorily authorized to order recoupment in the event of availability of funds. 18
U.S.C. §§ 3006A(e)(1) & (f). Even if the court erred by ordering an updated financial
affidavit, Fleck has not demonstrated how merely filing the affidavit has affected his
substantial rights or prejudiced him in any way. See Watson, 582 F.3d at 982.
AFFIRMED.1
1
We affirm on the basis of the scant record before us. Nothing herein shall be
construed to preclude Fleck from filing subsequent motions to modify the terms of his
probation pursuant to 18 U.S.C. § 3563(c), including one supplying the type of
information the district court identified as lacking in the current motion.
3