UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4372
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC DAVID BENNETT,
Defendant-Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:10-cr-00064-1)
Argued: March 20, 2012 Decided: April 24, 2012
Before TRAXLER, Chief Judge, and DUNCAN and DAVIS, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. John Lanier
File, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, we examine whether the district court
abused its discretion by imposing two supervised release
conditions related to financial matters (“special conditions”)
in sentencing appellant Eric David Bennett. For the reasons
stated within, we conclude that imposition of the special
conditions does not pass muster under 18 U.S.C. § 3583(d)(1)-(3)
and must therefore be vacated.
I.
On September 14, 2010, Bennett was charged in the United
States District Court for the Southern District of West Virginia
in a two-count superseding indictment with: (1) knowingly
possessing four firearms after having been convicted of a
misdemeanor domestic violence offense, in violation of 18 U.S.C.
§§ 922(g)(9) and 924(a)(2); and (2) knowingly misrepresenting on
a Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
form that he had not been convicted of a felony or crime
resulting in more than one year of imprisonment and that he had
not been dishonorably discharged from the United States
military, in violation of 18 U.S.C. § 1001(a)(2). Bennett
entered into a plea agreement with the Government in which he
pled guilty to Count One and Count Two was dismissed.
The charges arose from an investigation of Bennett’s then
most recent, somewhat strange and assuredly violent conduct,
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reflective of his lengthy and troubled history of involvement in
the criminal justice system. Specifically, in October 2008,
Bennett was living with his then-girlfriend, Amanda Khurshid,
and their infant daughter. When Khurshid discovered that Bennett
was still having a relationship with his ex-wife (mother to
three of his other children, and a target of prior violent
behavior by Bennett), she asked him to leave their home. Bennett
refused and Khurshid apparently did not force the issue, hoping
the situation would “play out” and he would eventually leave.
J.A. 101.
Instead, her decision triggered two weeks of intermittent
violence from Bennett. On October 6, after her first
confrontation with Bennett, wherein he threatened her with a
handgun, took her car keys and she was forced to escape the home
through a window, Khurshid sought and was granted an Emergency
Protective Order. The next day, Bennett was removed from the
home. After his removal, Bennett’s conduct towards Khurshid
escalated: he sent her messages and made phone calls to her
despite being prohibited from contact, he entered the home while
she was sleeping and threatened to kill her, he reentered the
home when the locks were changed, and apparently he removed
screws that Khurshid also had installed to secure the windows.
In response to this conduct, Khurshid filed a petition for
contempt of the protective order. On the same day that she filed
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the petition, and on two days soon after, Bennett repeatedly set
off the panic alarm on Khurshid’s car and on one occasion
slashed two of her tires.
On October 16, after a final hearing regarding the
protective order, Bennett physically confronted Khurshid’s
stepfather in the parking lot of the county courthouse; this
attack was interrupted when a police officer wrestled him to the
ground. Bennett was arrested for battery and obstructing a
police officer and was arraigned that same day; he was released
after posting $100,000 bail.
After these events, Bennett’s behavior calmed and Khurshid
opted to abandon the protective order proceedings. In November
2008, however, Bennett was again making violent threats when he
discovered that Khurshid had been on a date with another man,
and that she was planning to leave town with their daughter for
Thanksgiving. In light of these threats, Khurshid recommenced
protective order proceedings and again Bennett reacted
violently. On succeeding days, Khurshid found additional vehicle
tires had been slashed, Bennett followed her in his car
gesturing as if he were shooting a firearm, and he made
threatening calls to her.
During this period, Raleigh County Sheriff’s Sergeant J.B.
Miller began investigating Khurshid’s allegations related to the
protective orders she was granted. On December 18, 2008,
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Sergeant Miller ultimately arrested Bennett for stalking and
five counts of destruction of property. Miller’s on-going
investigation quickly revealed that Bennett had pled guilty
earlier in 2008 to a misdemeanor crime of domestic violence
against his ex-wife, and that he had been dishonorably
discharged from the military after convictions for other felony
offenses targeting another romantic interest. Miller suspected
that Bennett’s record of convictions made his possession of
firearms unlawful, and also likely prohibited Bennett from
working lawfully at Beckley Drilling and Blasting, where he was
employed at the time, regularly handling explosives as a
blaster.
Miller interviewed Khurshid about Bennett’s firearms and
she reported that he had left a large gun and a safe, which she
believed contained more firearms, at the residence. Shortly
thereafter, Miller executed a search warrant at the home and
removed a .22 caliber handgun, ammunition, and two safes. Still
later, searches pursuant to warrants issued for the safes
revealed the four firearms named in the indictment in this case.
As already mentioned, Bennett pled guilty. The presentence
report (PSR) calculated a Base Offense Level of 20, enhanced by
two levels for the number of firearms involved in the offense
(3-7) and reduced by three levels for acceptance of
responsibility, for a total Offense Level of 19. Bennett’s prior
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convictions resulted in five criminal history points, i.e., a
Criminal History Category of III. Thus, the PSR calculated a
guideline imprisonment range of 37-46 months. The PSR indicated
that Bennett had a consistent work history, despite his
recurrent trouble with the law, in which he earned as much as
$34,000 in 2008 at Beckley Drilling and Blasting.
On March 17, 2011, Bennett appeared before the district
court for sentencing. After some discussion of factual
objections to the PSR that were all resolved without substantial
conflict, Bennett was sentenced at the top of the guideline
range, 46 months of imprisonment, followed by three years of
supervised release. The court imposed no fine or restitution.
The district court imposed, however, as special conditions of
supervised release that Bennett “be prohibited from incurring
new credit charges or opening additional lines of credit without
prior approval of the probation officer,” and that he “provide
the probation officer access to any requested financial
information.” J.A. 66.
Bennett’s counsel promptly objected that the special
conditions were improper because there was “no indication that .
. . his financial situation . . . was the basis for this crime.”
J.A. 69. She further argued that terms of supervised release are
“supposed to be those only that are necessary,” and that the
“credit and financial terms certainly, simply don’t have
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anything to do with Mr. Bennett and his situation.” J.A. 70. The
court acknowledged the objection but overruled it, explaining
that “it’s important for any supervising probation officer to
know what funding this gentlemen has available to him for
possession of firearms and any other matter that would cause or
present a situation of danger to someone else . . . .” J.A. 70.
The prosecutor declined the court’s invitation to offer a view
of the matter on behalf of the Government. Bennett has timely
appealed the narrow question of whether the district court’s
imposition of the special conditions of supervised release
comport with 18 U.S.C. § 3583.
II.
We find Bennett’s challenge to the special conditions
meritorious. The discrete question before us is whether a
prohibition against “incurring new credit charges or opening
additional lines of credit without prior approval of the
probation officer,” and a requirement to “provide the probation
officer access to any requested financial information,” J.A. 66,
is lawful as applied to Bennett. “District courts ‘have broad
latitude’ with regard to special conditions of supervised
release, and we review the court’s decision to impose a
condition of supervised release for an abuse of discretion.”
United States v. Holman, 532 F.3d 284, 288 (4th Cir. 2008)
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(citing United States v. Dotson, 324 F.3d 256, 259, 260 (4th
Cir. 2003)).
Federal law provides that supervised release include
certain mandatory conditions, such as the prohibition on
committing a state or federal offense during the term, or
possessing a controlled substance. 18 U.S.C. § 3583(d). In
addition to the enumerated mandatory conditions, a sentencing
court may impose a further condition:
to the extent that such condition
(1) is reasonably related to the factors set forth in
§§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a)
Id. The “factors” and “purposes” that constitute the parameters
set out above include: “the nature and circumstances of the
offense and the history and characteristics of the defendant,” §
3553(a)(1); “the need for the sentence imposed to afford
adequate deterrence to criminal conduct,” § 3553 (a)(2)(B); “to
protect the public from further crimes of the defendant,” § 3553
(a)(2)(C); and “to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner,” § 3553 (a)(2)(D).
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Bennett argues that the special conditions imposed in this
case are unwarranted and unjustified, amounting to an abuse of
the district court’s discretion, because they fail to meet any
of the standards set out in 18 U.S.C. § 3583(d) by being (1)
unrelated to a permitted purpose for restrictions, (2) a greater
restriction on his liberty than is necessary to achieve
permitted purposes and (3) inconsistent with the guidance
provided by the Sentencing Commission. The Government argues in
response that Bennett’s circumstances, “including [a] history of
violence, mental illness, drug abuse and non-compliance with
authority,” support the financial conditions imposed by the
court’s proper exercise of discretion. Appellee’s Br. 9.
Neither Bennett nor the Government points to any case law
from this Circuit that speaks directly to the issue before the
Court. Instead, Bennett relies heavily on United States v.
Brown, 402 F.3d 133 (2d Cir. 2005), in which a defendant with
multiple convictions for the sale and distribution of crack
cocaine was subject to financial requirements almost identical
to Bennett’s. The Brown court affirmed the condition that
financial records must be made available to a probation officer
on request, even where the defendant’s crime was not financial
and no fine or restitution was imposed, on the grounds that
“monitoring an offender's finances deters the offender from
returning to a life of crime by forcing him to account for his
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income.” Id. at 137. The court anchored this ruling to the fact
that Brown’s crimes, while not financial, were directly related
to his ability to support himself:
Brown’s criminal record and sparse employment history
demonstrate his pronounced proclivity to support
himself through drug dealing. In light of his history,
the Probation Office needs effective monitoring tools
to ensure that Brown does not return to drug dealing
after his release from prison. Thus, contrary to
Brown’s second argument-that Condition 4 is not
related to his offense and characteristics-the
condition stems directly from his criminal and
employment history.
Id.
Despite the nexus between Brown’s crimes and his financial
situation, the Brown court nevertheless vacated the condition
that he be prohibited from opening lines of credit without
permission from a probation officer. The court reasoned that
Brown’s offense and circumstances did not warrant the condition
because his offense did not “involve the incursion of debt,” nor
was his debt “unusually large.” Id. at 138. In addition, the
court noted that the condition was a “greater deprivation of
liberty than reasonably necessary” because use of credit was
“likely . . . necessary to facilitate his reintegration into
society after his release from prison.” Id.
The Government seeks to distinguish Brown by pointing to
Bennett’s “unique and troubling history.” Appellee’s Br. 15. It
directs our attention to United States v. Camp, 410 F.3d 1042
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(8th Cir. 2005), and United States v. Behler, 187 F.3d 772 (8th
Cir. 1999), as examples of cases where courts have upheld
financial conditions for supervised release for non-financial
offenses, where no fine or restitution was imposed.
We agree with Bennett, however, that Camp and Behler are
materially distinguishable from the instant case. In Camp, the
district court imposed financial conditions to specifically
address the fact that the defendant was “in arrears” on child
support payments and had a “sketchy employment history.” Camp,
410 F.3d at 1044. In Behler, the court found financial
conditions proper where “money and greed were at the heart of
[the defendant’s] drug distribution offenses . . . .” Behler,
187 F.3d at 780. Both cases, then, involved defendants whose
financial issues were apparent from the record and posed a
reasonable threat to their capacity to avoid unlawful conduct
after release from prison during the term of supervised release.
In contrast, Bennett’s offense of conviction, possessing a
firearm as a prohibited person, and all but one of his many
prior convictions and arrests, relate exclusively to his
dysfunctional and indeed violent relationships with women, not
money. The record indicates that Bennett’s financial
circumstances have played no primary (or even identifiable) role
in his criminal activity; money was not a motive for any his
acts, nor were the methods of his conduct related in any
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particular way to a lack or abundance of personal wealth. The
special conditions imposed by the district court are therefore
unrelated to Bennett’s history and characteristics. See 18
U.S.C. § 3583(d)(1) (cross-referencing 18 U.S.C. § 3553(a)(1)).
The special conditions are also unlikely to deter or, in
any direct sense, protect the public from future crimes by
Bennett because Bennett’s behavior in the past does not suggest
that money has played any meaningful role in his criminal
conduct. Id. (cross-referencing 18 U.S.C. § 3553(a)(2)(B) and
(C)). The most compelling deterrence rationale for the financial
conditions imposed here relates to Bennett’s history of
harassing, intimidating, following, and abusing women. The
district court noted that financial monitoring would deter
Bennett from financing the purchase of firearms in the future
and “any other matter that would cause or present a situation of
danger to someone else. . .” J.A. 70. Although these dangerous
situations were not elaborated, Bennett’s history perhaps raised
concerns for the district court that he would use his earnings
to travel to stalk his current or future partners, or to
otherwise finance his unlawful conduct towards them.
Without minimizing the pattern of harmful behavior that is
clearly indicated by the record and was properly taken into
consideration by the district court when determining other
aspects of Bennett’s sentence, we agree with Bennett that this
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rationale for the special conditions of supervised release has
no apparent limits; it could “apply in every case.” Appellant’s
Br. 11. The scenarios in which Bennett’s income could contribute
to unlawful acts are almost effortless to imagine – in part
because money can, potentially, facilitate any act that any
person undertakes. To the degree that money is the mechanism by
which nearly every crime is carried out (drugs are purchased,
tools for burglary are purchased, etc.), financial monitoring
could always theoretically prevent or deter criminal activity by
preventing an offender from using his or her funds to purchase
the means of crime. However, the provisions of 18 U.S.C.
§ 3583(d) are explicit limits on precisely such expansive,
generalized control over a released offender’s conduct. The
statute requires that conditions relate to specific aspects of
an offender’s circumstances, and while Bennett has a well-
documented history of violence against women there is simply no
evidence in the record that oversight of Bennett’s finances
will, in particular, reasonably deter this behavior.
Where financial conditions are so unrelated to a
defendant’s past and reasonably likely future acts, they
constitute a greater deprivation of liberty than is reasonably
necessary to achieve the purposes of supervised release that
have been articulated by Congress. 18 U.S.C. § 3583(d)(2).
Finally, the condition also fails to meet the requirement of
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§ 3583(d)(3), i.e., consistency with the policy statements of
the Sentencing Commission. The Sentencing Guidelines note that
financial monitoring is appropriate where the court has imposed
“an order of restitution, forfeiture, or notice to victims, or
[has] order[ed] the defendant to pay a fine.” U.S.S.G.
§ 5D1.3(d)(3). While the Guidelines note further that this
condition “may otherwise be appropriate in particular cases,”
id. § 5D1.3(d), the record in the instant case, as explained
above, does not provide an adequate basis to so conclude.
III.
For the foregoing reasons, we conclude that the district
court abused its discretion in imposing the challenged financial
conditions during Bennett’s term of supervised release.
Accordingly, we vacate the judgment and remand this case for the
entry of an amended judgment striking those conditions of
supervised release.
VACATED AND REMANDED
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