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This order and judgment is not binding precedent, except under the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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