United States Court of Appeals
For the First Circuit
No. 04-1309
UNITED STATES,
Appellee,
v.
KENNETH PROCHNER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeanne M. Kempthorne for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
July 22, 2005
CAMPBELL, Senior Circuit Judge. Kenneth Prochner appeals
from his sentence on a conviction of access device (credit card)
fraud. Prochner pled guilty to knowingly possessing fifteen or
more unauthorized credit card numbers with the intent to defraud in
violation of 18 U.S.C. § 1029(a)(3). The district court sentenced
him to 25 months in prison and three years of supervised release,
and ordered restitution in the amount of $2,610.19. The sentence
was based in part on enhancements for the amount of loss, number of
victims, special skill, and obstruction of justice.1 The district
court also imposed special conditions of supervised release,
including conditions that Prochner undergo evaluation for sex
offender treatment; that he not engage in an occupation, business
or profession that would require direct supervision of minors; and
that he have no unsupervised contact with minors.
Prochner argues for the first time on appeal that his
sentence should be vacated and the case remanded for resentencing
under United States v. Booker, 125 S. Ct. 738 (2005). He also
challenges the enhancement for use of a special skill, the special
conditions that he undergo evaluation for sex offender treatment
1
Without the enhancements, the guideline sentencing range for
Prochner, who had no criminal history, would have been zero to six
months.
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and refrain from certain contact with minors, and the loss
calculation for purposes of awarding restitution.2
I.
A. The Arrest
On August 20, 2002, Prochner was trying to enter Canada
from New York when Canadian law enforcement officers conducting
border inspections discovered that he was carrying papers and a
notebook containing numerous credit card numbers. Further
investigation revealed that the credit card numbers had been
reported as stolen or lost and that fraudulent activity had been
reported on the accounts. Prochner did not have the permission of
the credit card accounts' owners to use or possess the credit card
numbers. After being advised of his rights, Prochner admitted that
he had obtained the credit card numbers on the Internet. In a
written statement to law enforcement, he explained that he accessed
website order logs to obtain the credit card numbers and then
accessed channels where he determined that the numbers were still
valid.
In addition to the credit card numbers, Prochner had in
his possession a handwritten journal that included references to
adolescent males.
2
Parts of the record before us are under seal. Sealed
materials have been fully considered even if not set out in detail
in this opinion.
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B. The Plea and Sentencing
On July 24, 2003, Prochner pled guilty in the United
States District Court for the District of Massachusetts to the one-
count indictment, which charged him with possessing 15 or more
unauthorized credit card numbers with the intent to defraud. See
18 U.S.C. § 1029(a)(3). According to the government, Prochner
possessed 34 unauthorized credit card numbers and had used at least
one to purchase airline tickets and to stay at a hotel. Prochner
agreed with most of the facts but argued that the list of
unauthorized credit card numbers he had in his possession at the
time of his arrest had only 16 numbers written twice, not the 34
numbers the government alleged.
The presentence report (PSR) determined that Prochner's
base offense level was 6. U.S.S.G. § 2B1.1(a).3 The PSR added 4
levels for the loss of $17,000 ($500 multiplied by 34 credit card
numbers), id. §§ 2B1.1(b)(1)(C), 2B1.1, cmt. n.2(F)(i); 2 levels
for the number of victims (between 10 and 50), id. §
2B1.1(b)(2)(A); 2 levels for the use of a special skill, id. §
3B1.3; and 2 levels for obstruction of justice, id. § 3C1.1. The
resulting offense level totaled 16. Because Prochner had no prior
3
The PSR calculated the guideline sentencing range using the
Guidelines in effect at the time of the commission of the instant
offense -- the Guideline Manual issued November 1, 2001 -- because
that version was more beneficial to the defendant than the version
of the Guidelines in effect at the time of sentencing. See United
States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).
-4-
convictions and zero criminal history points, he was assigned to
Criminal History Category I. The resulting guideline sentencing
range was 21 to 27 months. The Probation Office calculated that
Prochner owed $2,610.19 in restitution.
Prior to sentencing, Prochner objected to the
enhancements for the amount of loss, special skill, and obstruction
of justice, as well as the restitution figure. He argued that he
should have been granted a reduction for acceptance of
responsibility, and sought downward departures because of his
mental and emotional condition, see U.S.S.G. § 5H1.3, and family
and community ties, id. § 5H1.6.
After a hearing, the district court sentenced Prochner on
January 21, 2004. The court rejected the objections to the PSR and
denied Prochner's requests for downward departure. The court
sentenced Prochner to 25 months in prison and three years of
supervised release, and ordered him to pay restitution in the
amount of $2,610.19. The court recommended that Prochner be
designated to a facility where he could undergo sex offender
evaluation. It also imposed special conditions of supervised
release, including: (1) that Prochner "participate, if directed to
do so by the Probation Office and the Court, in a sex-offender-
specific treatment program," (2) that he be "prohibited from
engaging in any occupation, business or profession that would
require direct supervision of children under the age of 18," and
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(3) that he be prohibited from "hav[ing] any unsupervised contact
with anyone under the age of 18."
II.
A. Booker Challenge
Prochner argues that we should remand his case for
resentencing in light of United States v. Booker, 125 S. Ct. 738
(2005).4 At the invitation of this court, both parties submitted
supplemental briefing after the Supreme Court's decision in Booker.
As Prochner concedes, he did not raise any question in the district
court concerning the constitutionality of the Guidelines nor of
their application to his sentence under Apprendi v. New Jersey, 530
U.S. 466 (2000), or Blakely v. Washington, 124 S. Ct. 2531 (2004).
Accordingly, we review his Booker contentions for plain error.
United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005).
Prochner must satisfy the four-prong test in United
States v. Olano, 507 U.S. 725 (1993): that there is (1) an error
(2) that is plain, and that the error (3) affects substantial
rights and (4) seriously impairs the fairness, integrity, or public
4
Prochner was recently released from prison after having fully
served his prison sentence. Although Prochner is no longer
incarcerated, this appeal is not moot. Prochner's sentence
included a three-year term of supervised release, which he is now
serving. Prochner also faces a restitution order that he
challenges in this appeal. He, therefore, has a continuing stake
in the outcome of this appeal. See, e.g., United States v. Molak,
276 F.3d 45, 48-49 (1st Cir. 2002) (sentencing appeal was not moot
where the defendant faced a term of supervised release and a
restitution order).
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reputation of judicial proceedings. Id. at 732. The first two
prongs are met because the defendant's sentence was imposed under
mandatory Guidelines. Antonakopoulos, 399 F.3d at 77. To meet the
third prong, Prochner must show there is a "reasonable probability
that the district court would impose a different sentence more
favorable to the defendant under the new 'advisory Guidelines'
Booker regime." Id. at 75; see also United States v. Heldeman, 402
F.3d 220, 224 (1st Cir. 2005) (describing the Booker plain error
inquiry as whether "there is reasonable indication that the
district judge might well have reached a different result under
advisory guidelines").
In support of a remand for resentencing, Prochner argues
that the district court made the following findings enhancing his
sentence (beyond that authorized by facts admitted by him) in
violation of the Sixth Amendment: (1) the amount of loss, (2)
number of victims, (3) special skill, and (4) obstruction of
justice. We said in Antonakopoulos, however, "that the judge found
additional facts which raised the sentence authorized solely by the
jury verdict or guilty plea--in our view is insufficient to meet
the third and fourth Olano prongs on plain-error review." 399 F.3d
at 79.5
5
If the district court had erred in making the factual
findings underlying these enhancements and, as a result, misapplied
guideline enhancements in a way that increased Prochner's sentence,
the errors would justify resentencing even under our pre-Booker
precedent. United States v. Serrano-Beauvaix, 400 F.3d 50, 54 (1st
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More to the point, he also argues there is a reasonable
probability that the district judge, in an advisory Guidelines
system, would have reached a different result. See Heldeman, 402
F.3d at 224. At sentencing, the district judge considered and
rejected Prochner's requests for downward departures based on
mental and emotional condition and family and community ties.
After reviewing the report prepared by Prochner's mental health
expert, the judge noted that "[the expert] doesn't conclude that
he's mentally unbalanced in the real sense. She thinks that he's
depressed, which, of course, I am sometimes, too." The judge also
stated that the expert "concludes the defendant, obviously, has
troubles, but they are troubles that manifest themselves more in a
state of depression than they do really in terms of the kind of
mental fragility or disturbance that might, under the guidelines --
it's not a terribly encouraged factor -- but might under the
guidelines qualify for a downward departure." These comments
indicate that the judge denied Prochner's request for a downward
departure because of skepticism that he suffered from a mental
Cir. 2005). Here, however, Prochner does not contest the factual
bases for any of the enhancements except special skill. See infra
Part II.B (discussion regarding special skill). The obstruction of
justice enhancement was premised on facts admitted by Prochner.
The amount of loss was based on the number of credit card numbers.
See U.S.S.G. § 2B1.1, cmt. n.2(F)(i). At the plea hearing,
Prochner disputed that he had 34 credit card numbers, but he failed
to renew that objection at sentencing and, therefore, waived it.
Finally, Prochner did not dispute the number of victims
enhancement.
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condition serious enough to warrant a downward departure. The
judge went on to say, "Beyond that, I frankly don't see any basis
for a downward departure that otherwise applies in the case." He
then sentenced Prochner to the middle of the 21 to 27 month range.
While the district court made these comments in the
context of considering whether to grant a downward departure on
grounds "not . . . terribly encouraged" under the guidelines,
rather than pursuant to its greater discretion to consider such
mitigating factors in an advisory guidelines regime, nothing
suggests that the mandatory nature of the guidelines prevented
imposition of a lesser sentence in this case. Indeed, without even
departing downward, the court could have imposed a four-months
lesser sentence under the existing guidelines range. See, e.g.,
United States v. Ayala Pizarro, 407 F.3d 25, 29-30 (1st Cir. 2005).
On this record, we see no reasonable probability that a more
lenient sentence would be imposed under advisory guidelines should
the case be remanded. See Antonakopoulos, 399 F.3d at 75.
As for the special skill enhancement, Prochner contends
that "the district court made a sentencing error under the
Guidelines, the correction of which ordinarily would have led to a
lower sentence in the pre-Booker era." Id. at 81. We turn now to
this contention, concluding there was no such error.
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B. Special Skill Enhancement
Prochner contends the court erred in finding that, to
facilitate the offense, he used a "special skill," as defined in
U.S.S.G. § 3B1.3, to obtain the credit card numbers. This Court
reviews the district court's legal interpretation of the term
"special skill" de novo and its underlying factual determinations
for clear error. United States v. Montero-Montero, 370 F.3d 121,
123 (1st Cir. 2004).
The Guidelines direct that a two-level enhancement is
applied "[i]f the defendant . . . used a special skill, in a manner
that significantly facilitated the commission or concealment of the
offense." U.S.S.G. § 3B1.3. A "special skill" is defined as "a
skill not possessed by members of the general public and usually
requiring substantial education, training or licensing." Id. §
3B1.3, cmt. n.3. Examples include "pilots, lawyers, doctors,
accountants, chemists, and demolition experts." Id.
We have held that a defendant need not necessarily have
formal education or training in order to be found to possess a
special skill. See, e.g., Montero-Montero, 370 F.3d at 123; United
States v. Nelson-Rodriguez, 319 F.3d 12, 58 (1st Cir. 2003); United
States v. Noah, 130 F.3d 490, 500 (1st Cir. 1997). A special skill
may also be acquired through experience or self-tutelage. Noah,
130 F.3d at 500 (finding that a self-taught, professional tax
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preparer utilized a special skill in preparing and electronically
filing tax returns).
The district court adopted the PSR's conclusion that
Prochner "used self-taught computer skills to 'hack' into website
order logs." Prochner argues, however, that there is no evidence
that he has education or training (even self-taught) in computers.
But a court can reasonably infer requisite self-education from the
nature and extent of the skill possessed. Here, Prochner's own
description of what he did and could do to hack into secure
websites and purloin data revealed a high and unusual level of
computer know-how. The court could infer that this came from self-
tutelage and experience if not from more formal training.
In his written statement to law enforcement at the time
he was arrested, Prochner explained how he had obtained the credit
card numbers:
After accessing the internet, via telnet and MIRC/PIRCH
and accessing websites['] order logs via Cart32 (internet
credit card ordering programs), [I] scanned twenty some[]
credit cards . . . . Credit cards can be checked for
validity via bots (i.e.[,] scripts that check cards are
still active/inactive), and I used a (MIRC) based program
via Windows 98SE, on an Undernet channel and a Dalnet
based channel to check three or four AMEX cards and found
them to be "extremely" valid.
Prochner went on to elaborate on what he called "carding,"
including how websites use SSL encryption, how one can rewrite the
websites' "cgi scripts" which ultimately hold the "logs" for credit
card orders for a particular website, and how one can download an
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international chat client to access thousands of channels where one
can check the validity of all kinds of credit card numbers. He
stated that these channels are "where the true criminals are."
Prochner went on to explain that "[he] can easily access these
places [at] any computer [at] any time of the day, via a Windows
Based program." He also claimed that "[e]ven without log orders or
hacking (for lack of a better word) tools, a novice Internet surfer
can access these channels and still get hundreds of credit cards in
less than 2 [hours]."
A judge might reasonably take with a grain of salt
Prochner's assertion that even "a novice Internet surfer" could do
what he indicated. But even if so, we have said that "nothing in
the guidelines suggests that the specialness of the faculty
necessarily hinges on the complexity of the task to be performed."
Noah, 130 F.3d at 500. "[A] skill can be special even though the
activity to which the skill is applied is mundane." Id. The
critical question is "whether the defendant's skill set elevates
him to a level of knowledge and proficiency that eclipses that
possessed by the general public." Id.
Focusing on that critical question, Prochner's
description of the processes to obtain the credit card numbers
amply supports the district court's conclusion that Prochner's
special skills, including the ability to "hack" into website order
logs and computer networks and to re-write "cgi scripts," exceed
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the knowledge of the average Internet user. Even without expert
evidence, Prochner's affidavit supports finding a level of
sophistication well beyond the ordinary. We are unable to say,
therefore, that the district court's determination that Prochner
possessed a special skill not possessed by members of the general
public is clearly erroneous.
We recognize there may be cases where a particular
ability, even if not generally possessed by members of the public,
may be so limited in kind or scope as to fall outside the purview
of U.S.S.G. § 3B1.3. But sophisticated computer aptitude like
Prochner's evidences a skill of sufficient breadth and
applicability as to be found to come within the guideline. It is
true that some courts outside this circuit have limited the
category of cognizable special skills more strictly. Compare,
e.g., United States v. Aubin, 961 F.2d 980, 984 (1st Cir. 1992)
(trained service repairman for ATMs possessed a special skill
facilitating ATM robbery), with United States v. Harper, 33 F.3d
1143, 1151-52 (9th Cir. 1994) (knowledge of ATMs gained during
employment insufficient). Courts in the Sixth and Ninth Circuits
have, on occasion, gone quite far in insisting, as a sine qua non,
upon an extensive amount of formal education, training and
licensing. See, e.g., United States v. Lee, 296 F.3d 792, 798-99
(9th Cir. 2002); United States v. Godman, 223 F.3d 320, 322-23 (6th
Cir. 2000). As noted, we do not go so far. Where the record
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supports a finding of a skill of sufficient kind and scope at a
level well beyond that of a member of the general public, we will
affirm the reasonable judgment of the district court. The Ninth
Circuit's own case of United States v. Petersen, 98 F.3d 502 (9th
Cir. 1996), found a special skill in circumstances fairly similar
to those here. See id. at 504 (defendant's ability to "'hack[]'
into credit reporting services to obtain information which he used
to order fraudulent credit cards" warranted special skill
enhancement).
We affirm the district court's finding of a special skill
enhancement.
C. Special Conditions of Supervised Release
For the first time on appeal, Prochner challenges as
abuses of discretion three of the special conditions of supervised
release imposed by the district court: (1) that he "participate,
if directed to do so by the Probation Office and the Court, in a
sex-offender-specific treatment program"; (2) that he is
"prohibited from engaging in any occupation, business or profession
that would require direct supervision of children under the age of
18"; and (3) that he refrain from "hav[ing] any unsupervised
contact with anyone under the age of 18."
This Court ordinarily reviews the district court's
imposition of a special condition of supervised release for abuse
of discretion, but if the issue was forfeited, review is for plain
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error. United States v. York, 357 F.3d 14, 19 (1st Cir. 2004). As
Prochner concedes, he "did not lodge [with the district court] an
express objection" to the special conditions. He argues,
nevertheless, that "his failure to do so should be excused in light
of the court's statement" during an in-chambers conference just
before the beginning of the sentencing hearing that it was "having
trouble finding anything in the record" suggesting that he has a
problem with children. We are not persuaded. A judge's sentencing
determinations after or at the end of a hearing take priority over
earlier remarks which may be based on incomplete information or
simply thrown out to invite response or test the waters. Prochner
forfeited his right to object to the special conditions by not
objecting promptly after announcement of the conditions. Had he
done so, the district court would have been able to reconsider its
proposed judgment in light of his objection and, if persuaded,
modify it. See, e.g., id.; United States v. Mansur-Ramos, 348 F.3d
29, 32 (1st Cir. 2003). The mere beginning ruminations of the
court plainly did not cure Prochner's later failure to state, once
the court's intent became manifest, that he was in any way bothered
by the specified conditions. We review, therefore, solely for
plain error. See Olano, 507 U.S. at 732.
1. Sex Offender Treatment Program
Prochner now argues that the district court erred in
imposing the special condition that he participate, if so directed
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by the Probation Office and the Court, in a sex offender specific
treatment program, because his conviction did not involve a sex-
related offense and he has never been accused of sexual assault.
A sentencing judge has the authority to impose any
condition of supervised release that is "reasonably related to (1)
the defendant's offense, history, and characteristics; (2) the need
to deter the defendant from further criminal conduct; (3) the need
to protect the public from further crimes by the defendant; and (4)
the effective educational, vocational, medical, or other
correctional treatment of the defendant." York, 357 F.3d at 20;
see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. §
5D1.3(b)(1). Although these factors are connected by the "and"
conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(1),
"the critical test is whether the challenged condition is
sufficiently related to one or more of the permissible goals of
supervised release." York, 357 F.3d at 20 (quoting United States
v. Brown, 235 F.3d 2, 6 (1st Cir. 2000)) (emphasis in York); see
also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir. 2003)
(noting that every circuit to have decided the issue has adopted
this interpretation notwithstanding the conjunction "and").
Thus, the fact that the special condition of sex offender
treatment is not related to the crime of conviction does not, by
itself, render the condition invalid. See York, 357 F.3d at 20.
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Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits
the condition of sex offender treatment just to individuals
convicted of sex offenses. Id.; see 18 U.S.C. § 3583.
There are, to be sure, limitations on the district
court's power to impose special conditions of supervised release.
The condition can "involve[] no greater deprivation of liberty than
is reasonably necessary" to achieve the purposes of supervised
release, and it must be "consistent with any pertinent policy
statements issued by the Sentencing Commission." 18 U.S.C. §
3583(d)(2), (3); U.S.S.G. § 5D1.3(b)(2). Moreover, the court's
decision to impose the condition must have adequate evidentiary
support in the record. York, 357 F.3d at 20; Brown, 235 F.3d at 6.
While the record contains no direct evidence that
Prochner has engaged in inappropriate conduct with minors, we find
record support for imposition of the requirement that Prochner
undergo evaluation for possible sex offender treatment. Prochner's
work history shows frequent contact with young boys. He was a YMCA
youth sports director, and he ran a soccer program and a
snowboarding program. Entries in the journal Prochner possessed at
the time of his arrest indicate that he may have had, or, at
minimum, desired to have, sexual relationships with adolescent
males. Prochner took the position that these entries were simply
literary expressions. A report by Prochner's mental health expert
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and an evaluation by a clinical social worker, however, suggest
that Prochner has a potential problem with adolescent males.
Given this evidence, the court could reasonably believe
that Prochner might pose a threat to children, and that evaluation
for participation in a sex offender treatment program, and
participation if further ordered, was reasonably related to the
purposes of supervised release. See York, 357 F.3d at 20. As
noted, such purposes include the need to deter further criminal
conduct, the need to protect the public from further crimes by the
defendant, and the need to provide the defendant with needed
training or effective correctional treatment. See 18 U.S.C. §
3583(d)(1); U.S.S.G. § 5D1.3(b)(1). The condition here was
reasonably related both to the need, while Prochner was still under
supervision, to protect the public from future potential crimes by
Prochner (who had already committed a serious crime, albeit of a
different kind) and the need to provide Prochner with whatever
treatment he might need.
Finally, the special condition relative to sex offender
treatment did not involve, in Prochner's case, any greater
deprivation of liberty than is reasonably necessary for the
purposes of supervised release. See 18 U.S.C. § 3583(d)(2), (3);
U.S.S.G. § 5D1.3(b)(2). The district court did not require
Prochner to register as a sex offender. The government reasonably
interprets the court's order as directing Prochner to participate
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in a sex offender treatment program only if, after a sex offender
evaluation, the Probation Office and the Court conclude that
participation is appropriate. When the district judge imposed the
sentence, he recommended that Prochner be designated to a facility
where he could undergo a sex offender evaluation. The court
further stated that Prochner would only be required to participate,
"if directed to do so by the Probation Office and the Court."
In conclusion, the treatment condition is not
unreasonable nor do we think the court committed plain error in
imposing it.6
2. Contact with Minors
Prochner also complains about the special conditions
limiting his contact with minors during the term of supervised
6
Prochner relies on United States v. Scott, 270 F.3d 632 (8th
Cir. 2001), in which the Eighth Circuit held that it was an abuse
of discretion to require sex offender treatment as a condition of
supervised release, because the only evidence of sexual misconduct
was a single conviction fifteen years old, there was no evidence
the defendant had a propensity to commit future sexual offenses,
and the condition was not reasonably related to the crime of
conviction. Id. at 636. In contrast, in the instant case, the
evidence supporting the condition of sex offender evaluation --
albeit falling short of convictions for, or even accusations of,
actual sexual misconduct -- is recent, and includes evaluations by
a mental health expert and a licensed clinical social worker in the
last three years. See also York, 357 F.3d at 20 n.5 (declining to
follow Scott). Prochner also relies on United States v. T.M., 330
F.3d 1235 (9th Cir. 2003), which, like Scott, is distinguishable.
There, the defendant's sex offender-related crimes were twenty and
forty years old, and there was no evidence of current involvement
in sex crimes. Id. at 1239-41. Moreover, in Scott and T.M.,
unlike here, the special conditions included the stigmatizing
condition that the defendant register as a sex offender.
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release: (1) the condition prohibiting Prochner "from engaging in
an occupation, business or profession that would require direct
supervision of children under the age of 18"; and (2) the condition
prohibiting him from "hav[ing] any unsupervised contact with anyone
under the age of 18." As noted, he registered no complaint about
either condition to the district court when sentenced. His
complaint now is that these two conditions constitute abuses of the
sentencing court's discretion and violate the previously mentioned
18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(b). However, for many of
the same reasons already discussed relative to the treatment
condition, we do not find plain error in the imposition of these
two conditions.
To be sure, the argument could have been made -- although
it was not -- that the condition prohibiting Prochner from engaging
in any occupation that would require direct supervision of children
is an occupational restriction subject to the specific limitations
of 18 U.S.C. § 3563(b)(5) and U.S.S.G. § 5F1.5. Section
3563(b)(5), to which 18 U.S.C. § 3583(d) contains a cross-
reference, allows a court to impose only a condition that the
defendant "refrain . . . from engaging in a specified occupation,
business, or profession bearing a reasonably direct relationship to
the conduct constituting the offense, or engage in such a specified
occupation, business, or profession only to a stated degree or
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under stated circumstances." 18 U.S.C. § 3563(b)(5) (emphasis
added).
It can be argued, given especially Prochner's work
history of jobs with children, that this condition impermissibly
amounted to one that he "refrain . . . from engaging in a specified
occupation, business, or profession" where the forbidden occupation
bears no reasonably direct relationship to the conduct constituting
the offense. 18 U.S.C. § 3563(b)(5).
We need not pass upon such an argument, however, as
Prochner failed not only to raise it or any other objection to the
condition in the district court but also made no mention of 18
U.S.C. § 3563(b)(5) or U.S.S.G. § 5F1.5 on appeal. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (arguments not raised on
appeal are deemed waived). And, in any event, we do not think that
the unobjected-to imposition of this condition, even if arguably
contrary to § 3563(b)(5), amounts here to plain error. See Olano,
507 U.S. at 736 (incorporating in the plain error standard the
requirement that the error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings").
We accordingly hold that Prochner has not demonstrated
that the court plainly erred in imposing the conditions on his
contact with minors.7
7
Prochner is, of course, free to petition the district court
for modification of this condition if, during the duration of his
term of supervised release, it unduly and unreasonably interferes
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D. Amount of Loss
Finally, Prochner argues that the district court
impermissibly shifted the burden to disprove loss for purposes of
restitution. See 18 U.S.C. §§ 3663-3664. This Court reviews
restitution orders for abuse of discretion and the subsidiary
findings of fact for clear error. United States v. Cutter, 313
F.3d 1, 6 (1st Cir. 2002).
The government bears the burden of establishing the
amount of loss for purposes of restitution by a preponderance of
the evidence. 18 U.S.C. § 3664(e); United States v. Vaknin, 112
F.3d 579, 583 (1st Cir. 1997). A PSR generally bears "sufficient
indicia of reliability to permit the district court to rely on it
at sentencing." United States v. Cyr, 337 F.3d 96, 100 (1st Cir.
2003). The defendant may object to facts in the PSR, but "if [his]
objections to the PSR are merely rhetorical and unsupported by
countervailing proof, the district court is entitled to rely on the
facts in the PSR." Id.; see United States v. Grant, 114 F.3d 323,
328 (1st Cir. 1997).
In determining the restitution figure, the district court
relied on the statement of the victims and losses in the PSR. The
PSR noted that "[t]he precise loss figure has been difficult to
establish" because "the account numbers were obtained from Internet
sites that made the numbers available to numerous individuals."
with his ability to earn a livelihood. See 18 U.S.C. § 3583(e)(2).
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The PSR indicated, however, that "the government can establish that
the loss figure directly attributable to the defendant is
approximately $2,731.63." This total consisted of specific charges
claimed by American Express and various retailers to be fraudulent.
By the time of sentencing, this amount had been reduced by $121.44
owed to foreign-based retailers for which the Probation Office
could not obtain contact information.
At the sentencing hearing, Prochner admitted to making
several of the identified charges, but denied or questioned making
several other charges. When the district court asked defense
counsel if he had any evidence to dispute the charges, defense
counsel replied, "I don't have anything other than the defendant's
word that these are amounts that he disagrees with."
Here on appeal, Prochner argues that the list of victims
and losses in the PSR is not sufficiently reliable to warrant the
court's acceptance because, as Probation acknowledged, it is
impossible to establish that Prochner, as opposed to another
Internet surfer with access to the credit card numbers at issue,
made the fraudulent charges. He argues that the district court
should have excluded the disputed charges rather than shifting the
burden of proof to him.
In the absence of rebuttal evidence beyond defendant's
self-serving words, we cannot say the court clearly erred in
accepting the PSR's calculation of the restitution amount. The
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list of victims and losses was supported by the charges alleged to
be fraudulent by American Express and various retailers, and it
constituted sufficiently reliable evidence to satisfy the
government's burden. The district court did not shift the burden
of proof to Prochner; it merely demanded that, given the list of
victims and losses presented in the PSR, Prochner provide more than
his word to support his objection.8 The district judge even noted
that the restitution order could be corrected within seven days,
and he invited defense counsel to submit evidence showing an error
in the identification of the victims. Prochner failed to present
any such rebuttal evidence within that time. In the absence of any
rebuttal evidence, the court did not commit clear error in finding
a loss of $2,610.19 for restitution purposes.
III.
For the reasons stated, we affirm Prochner's sentence.
8
This is not to say the judge was not free to have believed
Prochner had it seen fit. See United States v. Ruiz, 905 F.2d 499,
508 (1st Cir. 1990) ("[W]here there is more than one plausible view
of the circumstances, the sentencing court's choice among
supportable alternatives cannot be clearly erroneous.").
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United States v. Prochner
Court: Court of Appeals for the First Circuit
Date filed: 2005-07-22
Citations: 417 F.3d 54
Copy CitationsCombined Opinion