United States v. Prochner

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).

-6-
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

-7-
 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.

-8-
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

-10-
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

-13-
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

-20-
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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