United States v. Smith

                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 96-1743

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        DAVID ALLAN SMITH,

                      Defendant, Appellant.

                                           
                                                     

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                               

                                           
                                                     

                              Before

                      Boudin, Circuit Judge,
                                                     

                    Cyr, Senior Circuit Judge,
                                                       

                    and Lynch, Circuit Judge.
                                                      

                                           
                                                     

   Donald R. Furman, Jr. for appellant.
                                  
   F. Mark Terison,  Assistant United States Attorney, with whom Jay
                                                                              
P. McCloskey, United States Attorney, and James L. McCarthy, Assistant
                                                                   
United States Attorney, were on brief for appellee.

                                           
                                                     

                          March 6, 1997
                                           
                                                     


          Per  Curiam.   Defendant-appellant David  Smith appeals
                    Per  Curiam.
                               

the sentence imposed  following his conviction under  18 U.S.C.  

922(g)(1) (felon  in  possession  of  firearm) and  18  U.S.C.   

924(a)(2) (prescribing ten-year maximum sentence).1  

          First, Smith  challenges  a two-level  enhancement  for

obstruction of justice, see  U.S.S.G   3C1.1 (Nov. 1995),  on the
                                     

ground that the district court ruling that he attempted to suborn

perjury was not supported by the requisite subsidiary findings of

fact,  but relied  instead  only on  the  facts detailed  in  the

unchallenged  presentence  report  (PSR).   Quite  the  contrary,

however, the  district court's explicit adoption  of the findings

proposed in  the PSR  left no doubt  whatever, either  as to  the

grounds  relied upon  or their  adequacy.   See United  States v.
                                                                        

Tracy,  36 F.3d 199, 203  (1st Cir. 1994)  (sentencing court need
               

not set  out subsidiary  findings provided its  ultimate findings

and grounds plainly appear  in record).  Nor were  the statements

upon  which the district court findings were based susceptible to

innocent interpretation.   See  United States  v. Clark,  84 F.3d
                                                                 

506,  509-10 (1st  Cir.), cert.  denied, 117  S. Ct.  272 (1996).
                                                 

Thus,  Smith's competing interpretations did not render ambiguous

the statement given by  the witness whose testimony he  sought to

suborn.  See id. at 510.
                          

          Second, Smith challenges the special  condition imposed
                    
                              

     1Although Smith  failed to assert his  claims below, thereby
implicating "plain  error" review, see United  States v. Sanchez-
                                                                           
Barreto, 93 F.3d 17, 24 (1st Cir. 1996), cert. denied, 117 S. Ct.
                                                               
711 (1997),  we discern no merit even under a de novo standard of
                                                               
review.

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by  the district court, prohibiting his use of alcohol during the

three-year term of supervision following his release from prison.

See  U.S.S.G.    5D1.3(b)  (sentencing judge  may impose  special
             

conditions reasonably  related to nature of  offense and personal

history  of  defendant).   Smith  contends  that the  prohibition

against  using alcohol  constituted an  abuse of  discretion, see
                                                                           

United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.) (per curiam),
                                  

cert. denied,  115 S.  Ct. 1987  (1995); see  also supra  n.1, as
                                                                  

there was no evidence linking alcohol to the crime of conviction.

Once again we must disagree.

          There  was  abundant  justification  for  imposing  the

special  condition.  See id. (no abuse of discretion in requiring
                                      

defendant  to abstain from using  and possessing alcohol in light

of personal history and continuing alcohol abuse).  Smith conced-

ed  that he has an "abjectly appalling record of driving vehicles

while under the  influence of alcohol"  and admitted violating  a

condition  of his  bail by  consuming alcohol  within twenty-four

hours before  entering his guilty plea  in this case.   Thus, the

appropriateness of the special  condition imposed by the district

court is beyond question.          Affirmed.
                                             Affirmed.
                                                     

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