United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1262
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Mark Anthony Cooper, *
*
Defendant - Appellant. *
___________
Submitted: November 16, 1998
Filed: March 18, 1999
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Before BEAM, LAY, and LOKEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
Mark Anthony Cooper pleaded guilty to unlawfully transporting explosive
materials in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a). The district court
sentenced him to time served and two years of supervised release. Cooper appeals
the imposition of eight special conditions of supervised release. Two of the
conditions are moot because Cooper has completed a three-month residency at the
Gerald Hinzman Community Corrections Center, and the district court has removed
the condition prohibiting him from entering Jones County without probation office
consent. We affirm the remaining special conditions, except the condition prohibiting
Cooper from employment as a truck driver.
I.
Cooper is a former Army explosives expert who brought C4 explosives to his
home many years ago while working in a Marine Corps explosives disposal unit.
After his discharge, Cooper moved the explosives with him from South Carolina to
Iowa and put them in a rented storage locker. They were discovered in a warrant
search based upon information furnished by Cooper’s eleven-year-old daughter.
Marijuana seeds, baggies, and syringes were also found in the locker. At the time,
Cooper was employed as an over-the-road truck driver.
The district court held a pretrial detention hearing. The Iowa Department of
Human Services reported that Cooper’s daughter was in state custody after alleging
that Cooper “put bruises on her legs,” physically abused his wife and two children,
and “disappeared for periods of three to four weeks at a time,” and that her parents
both used marijuana in their home. Mrs. Cooper testified that Cooper accidentally
shot her through the door of their California home in 1982. Assault and firearm
charges were pending against Cooper in state court for bringing to a police station at
gunpoint a drug dealer whom Cooper suspected of cheating his wife in a marijuana
purchase. The district court ordered Cooper detained as a danger to the community
pending trial.
Prior to trial, Cooper moved for a competency hearing, and the court ordered
a mental evaluation. A forensic psychologist reported that Cooper suffered major
depression requiring “crisis intervention,” but that he refused to be evaluated for anti-
depressant medication. Pursuant to court order, Cooper was then hospitalized for
treatment at the Federal Medical Center in Springfield, Missouri. After he began
taking the prescribed anti-depressant medications, Cooper’s mental condition
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improved dramatically and he was released to the Hinzman Center in Cedar Rapids.
He was then declared competent to stand trial and pleaded guilty to the explosives
charge.
Prior to sentencing, the probation office opposed Cooper’s request for a
holiday release from the Hinzman Center because of reports he had abused his wife
and children, and because his wife’s state probation officer had urged her to have no
contact with Cooper. On the eve of the sentencing hearing, the probation office
reported that Cooper was taking his anti-depressant medication but his cooperation
was “minimal at best.” A psychiatrist reported that Cooper’s mood improved when
he is on medication, but he would probably cease taking medication if removed from
a controlled environment. The probation office also reported Cooper’s admission
that, when employed as a truck driver prior to his detention, he would purchase one-
half gallon of whiskey for himself and his wife each weekend, and a statement by his
mother-in-law that the couple argued all the time but more when Cooper was
drinking.
At the conclusion of the sentencing hearing, the district court imposed stringent
special conditions because Cooper had previously been “non-functional” and
“suicidal,” his prior conduct was “ not . . .[that] of a reasonable, nondangerous
person,” and medication made a “tremendous difference” in Cooper’s attitude and
behavior. The court observed that the case had “gotten more difficult as time has
gone on . . . in large part because of Mr. Cooper’s refusal to address the fact he has
a problem that needs to be addressed and to accept the help and the assistance that’s
out there.”
II.
Sentencing judges have discretion to impose special conditions of supervised
release so long as the conditions are reasonably related to the sentencing factors
enumerated in 18 U.S.C. § 3553(a), involve no greater deprivation of liberty than is
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reasonably necessary, and are consistent with the Sentencing Commission’s pertinent
policy statements. See 18 U.S.C. § 3583(d); United States v. Bass, 121 F.3d 1218,
1223 (8th Cir. 1997); United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir.
1992). The relevant statutes and Guidelines provisions set forth numerous
discretionary conditions that a sentencing court is urged to impose when they are
consistent with the broad statutory objectives of sentencing. See 18 U.S.C. § 3563(b)
(discretionary conditions of probation, incorporated by reference in 18 U.S.C.
§ 3583(d)); U.S.S.G. § 5D1.3(c)-(e) (recommended “standard” and “special”
conditions). Applying these standards, we review the special conditions imposed in
this case for abuse of the district court’s broad sentencing discretion.
Prohibition on Over-the-Road Truck Driving. The most difficult issue is
Cooper’s challenge to the special condition prohibiting him “from employment as a
truck driver if it involves absence from Cedar Rapids, IA., for more than 24 hours.”
This condition effectively bars Cooper from his pre-detention occupation. He earned
approximately $500 per week as an over-the-road trucker, substantially more than he
has been able to earn at various other jobs since his supervised release. Cooper
argues this condition is not reasonably related to his offense and imposes an overly-
harsh financial hardship on himself and his dependents. We agree.
The Government argues this is not an occupational restriction, but rather a
geographical limitation that reasonably ensures effective monitoring of Cooper by the
probation office and compliance with special conditions such as random urinalysis
and mental health treatment. This contention is without merit. The condition is an
explicit occupational prohibition and therefore is subject to the limitations on
imposing such conditions found in U.S.S.G. § 5F1.5(a):
(a) The court may impose a condition of probation or supervised release
prohibiting the defendant from engaging in a specified occupation,
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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.
These same limitations are found in 18 U.S.C. § 3563(b)(5), dealing with special
conditions of probation. The legislative history of this statute confirms that Congress
does not favor broad use of occupational prohibitions:
The condition may be imposed only if the occupation, business, or
profession bears a reasonably direct relationship to the nature of the
offense. . . . The Committee recognizes the hardship that can flow from
preventing a person from engaging in a specific occupation . . . . This
particular condition of probation should only be used as reasonably
necessary to protect the public. It should not be used as a means of
punishing the convicted person.
S. Rep. No. 98-225, at 96 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3279. In this
case, the occupational restriction bears no relationship to Cooper’s offense of
unlawfully transporting dangerous explosives to a storage locker many years ago.
Compare United States v. Choate, 101 F.3d 562, 566 (8th Cir. 1996) (restriction on
self-employment upheld because reasonably related to wire fraud offenses).
Therefore, this virtually absolute occupational prohibition on out-of-town truck
driving was an abuse of the district court’s discretion.
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The government argues the probation office cannot effectively monitor whether
Cooper is taking his anti-depressant medication and abstaining from drug and alcohol
use if he disappears from Cedar Rapids for three or four weeks at a time, as his young
daughter accused him of doing when previously employed as an over-the-road
trucker. However, as Cooper points out, interstate truck drivers are subject to strict
government regulation of drug and alcohol use and are typically subject to work rules
that permit employer monitoring while they are on the road. See 49 C.F.R. §§
382.101-605, 395.8 (1997). On remand, the district court retains discretion to modify
the standard conditions of supervised release to fit this situation. The objectives
should be to permit effective monitoring of Cooper if he does obtain employment as
an over-the-road truck driver, while avoiding giving a probation officer so much
control over Cooper’s out-of-town trips that no trucking company would be willing
to employ him (for example, the present Standard Condition No. 1, unless modified,
might authorize the probation officer to veto each and every out-of-town trucking
assignment).
Alcohol Consumption Prohibition. Cooper argues the district court abused its
discretion in imposing the condition that he abstain from “use of alcohol and . . .
frequenting bars, taverns or other establishments whose primary source of income is
derived from the sale of alcohol,” because there is no evidence he has abused alcohol
in the past, or that alcohol use contributed to commission of this offense. He relies
on two cases in which we vacated similar conditions for this reason. See Bass, 121
F.3d at 1223-24; Prendergast, 979 F.2d at 1293.
This is a close question under the abuse of discretion standard. We agree with
Cooper that there is no evidence linking alcohol consumption and the offense of
conviction. But this special condition must only be related to “the goals of
rehabilitation and protection.” Prendergast, 979 F.2d at 1293. There is no concrete
evidence of alcohol abuse, as there was in United States v. Wesley, 81 F.3d 482, 484
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(4th Cir. 1996), and United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.), cert. denied,
514 U.S. 1121 (1995). But, unlike the records in Bass and Prendergast, there is some
evidence that Cooper abused his wife and children, that he and his wife consumed
large quantities of alcohol on weekends when he was employed as a truck driver, and
that the couple argued more when Cooper had been drinking. Given the other
evidence of Cooper’s propensity to violence and prior mental instability, and given
the fact we have vacated the prohibition against his employment as an over-the-road
truck driver -- an occupation particularly incompatible with alcohol consumption --
we conclude the district court did not abuse its discretion in imposing this special
condition of his two-year supervised release.
Drug and Alcohol Testing and Treatment. Cooper also challenges the special
condition requiring that he participate in testing and treatment for drug and alcohol
abuse “as directed by his probation officer.” Some testing for substance abuse is a
mandatory condition of supervised release unless “ameliorated or suspended” by the
district court. See 18 U.S.C. §§ 3563(a)(5), 3583(d); U.S.S.G. § 5D1.3(a)(4).
Participation in an approved substance abuse program is a discretionary condition that
may be imposed “[i]f the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol.” U.S.S.G. § 5D1.3(d)(4). Here,
there was evidence Cooper and his wife purchased and used marijuana in their home.
Evidence of marijuana use was found with the C4 explosives in his storage locker.
In these circumstances, the district court did not abuse its discretion in imposing this
special condition. “When it comes to controlled substances, unlike alcohol which can
be consumed legally, a user is by definition an abuser.” United States v. Simmons,
130 F.3d 1223, 1224 (7th Cir. 1997).
Other Special Conditions. We have little difficulty upholding the remaining
special conditions imposed by the district court and challenged on appeal. Cooper
challenges the special condition that, “If deemed appropriate, [he] shall undergo
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mental health counseling and treatment.” This contention is without merit. His
recent history of major depression, refusal to take anti-depressant medications, and
conduct dangerous to himself and others clearly justify this limited special condition.
Similarly, the requirement that Cooper “participate in the Batterer’s Education
Program within 6 months, if ordered by the state juvenile court,” was justified by the
evidence that state officials have been concerned about Cooper’s alleged domestic
abuse. By limiting this condition to program participation ordered by the state court,
the district court tailored it to “provide defendant with needed . . . correctional
treatment” while avoiding a “greater deprivation of liberty than is reasonably
necessary.” U.S.S.G. § 5D1.3(b). Finally, Cooper objects to the special condition
requiring him to “immediately provide the probation officer with all waivers
previously requested and access to any requested psychiatric and medical records.”
This condition reasonably amplifies the standard condition that Cooper “answer
truthfully all inquiries of the probation officer and follow the instructions of the
probation officer.” U.S.S.G. § 5D1.3 (c)(3). These two special conditions are not an
abuse of the district court’s discretion.
The judgment of the district court is modified to delete the special condition
of supervised release prohibiting Cooper “from employment as a truck driver if it
involves absence from Cedar Rapids, IA., for more than 24 hours.” As so modified,
the judgment is affirmed, and the case is remanded for such further sentencing
proceedings as the district court may in its discretion deem appropriate.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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