United States v. Smith

USCA1 Opinion









[NOT FOR PUBLICATION]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.

2












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. ________














3