U.S. v. Voda ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-1166
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD L. VODA, SR.,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
(June 16, 1993)
Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant, Ronald Voda, Sr. (Voda), was sentenced to
a term of 5 years' probation and a $3,000 fine, payable $60 a
month, on his conviction, pursuant to his guilty plea, of one count
of negligent discharge of a pollutant through a point source into
navigable water in violation of a federal permit, contrary to 33
U.S.C. § 1319(c)(1)(A), a misdemeanor. Voda appeals, challenging
only certain aspects of his sentence, namely the fine and the
following two conditions of his probation, viz: (1) that he
surrender to the Mansfield Law Enforcement Center (Mansfield) on
June 2, 1993, to serve sixty calendar days; and, (2) that he not
possess a firearm during the probation. Concluding that the
district court erred in imposing these two conditions, we vacate
Voda's sentence and remand for resentencing.
Facts and Proceedings Below
Voda owned and operated Voda Petroleum, now defunct, an oil
recycling facility in White Oak, Texas. On February 10, 1989,
special agents of the Environmental Protection Agency (EPA) sampled
effluent discharging from Voda's plant. Test results on three of
the four samples taken revealed that more oil and grease discharged
into the water system than Voda's federal permit allowed. Based on
these test results, Voda pleaded guilty to one count of negligent
discharge of a pollutant.
The Presentence Investigation Report (PSR) reflects that Voda
has no prior conviction and that Voda and his wife have a negative
net worth of $19,555.97 and a negative monthly cash flow of
$503.75. The PSR does not indicate that Voda has any prospects for
increasing his cash flow or net worth over the next several years
in his job as a high school chemistry teacher.1 The United States
did not challenge the PSR's recitations concerning Voda's financial
condition.
The PSR does not indicate that Voda had any history involving
or being prone to violence or misuse of firearms. Voda likes to
hunt and owns several firearms that he uses for recreational
1
After his company went under, Voda, who is fifty-six,
returned to college, received a Bachelor of Science in Chemistry
from the University of Texas, and is now working in his second
year as a high school chemistry teacher.
2
hunting.
As a result of Voda's guilty plea, he was sentenced to a
$3,000 fine and 5 years' probation subject to numerous conditions.
Four of the conditions are: (1) that Voda surrender to Mansfield on
June 2, 1993, to serve 60 calendar days; (2) that he reside at the
County Rehabilitation Center, 313 Ferrell Place, Tyler, Texas, for
a period of 120 days; (3) that he shall not possess a firearm
during his probation; and (4) that he pay the $3,000 fine at a rate
of $60 per month beginning 60 days after his release from
Mansfield. Mansfield is a local jail housing, among others,
offenders awaiting trial on a range of offenses including violent
felonies.
After the sentence was imposed, Voda filed a Motion to Correct
Sentence pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 35(c), which was
denied. Voda appeals challenging the fine, the designation of
Mansfield as the place to serve the sixty days, and prohibition of
firearms possession.
Discussion
I. Designating Place of Confinement
Voda contends that, under 18 U.S.C. § 3563(11), the district
court lacked the authority to designate the place of his
confinement because the statute requires that the Bureau of Prisons
designate the place of confinement once the district court imposes
sentence for a specified period of time.2 Thus, Voda contends that
2
Because this arrangement better accommodates his work
schedule, Voda expressly waived any argument that the imposition
of sixty days' confinement served over a sixty day period is
"imprisonment," as opposed to intermittent confinement, and thus
3
the district court erred in sentencing him to serve time at
Mansfield.3
As a condition of probation, 18 U.S.C. § 3563(b)(11) provides
that a convict may be required to "remain in the custody of the
Bureau of Prisons during nights, weekends, or other intervals of
time, totaling no more than the lesser of one year or the term of
imprisonment authorized for the offense, during the first year of
the term of probation." 18 U.S.C. § 3563(b)(11) (West Supp. 1993).
See U.S.S.G. § 5C1.1(c)(3). The statute's plain language suggests
that only the Bureau of Prisons may determine the place of
confinement for sentences imposed under it.
No prior cases have addressed whether a sentencing judge may,
as a condition of probation, designate the place of confinement for
sentences imposed under section 3563(b)(11). However, many cases
have addressed the authority of a judge to specify the place of
incarceration where the sentence calls for imprisonment as opposed
to probation under 18 U.S.C. § 3621.4 These cases hold that a
court may recommend that a sentence imposed under section 3621 be
served in a particular prison or jail, but that only the Bureau of
Prisons has the actual authority to designate the place of
in violation of section 3563. See United States v. Anderson, 787
F. Supp. 537, 539 (D. Md. 1992).
3
Voda does not contest his sentence to the County
Rehabilitation Center in Tyler, a community corrections facility.
We stayed the Mansfield portion of the sentence pending
resolution of the appeal.
4
Similarly to section 3563, 18 U.S.C. § 3621 provides
expressly that "The Bureau of Prisons shall designate the place
of the prisoner's imprisonment."
4
incarceration. United States v. Jalili, 925 F.2d 889, 894 (6th
Cir. 1991) (citing United States v. Dragna, 746 F.2d 457, 458 (9th
Cir. 1984), cert. denied, 105 S. Ct. 1179 (1985)) (Dragna
interpreted 18 U.S.C. § 4082(a), which was replaced by section
3621, which Jalili addressed). See generally, United States v.
Wilson, 112 S. Ct. 1351 (1992). The Bureau of Prisons is given this
responsibility because the executive branch and not the judicial
branch is responsible for administering sentences. Id.
In other cases, courts rejected prisoners' requests to be
sentenced to particular jails, holding that only the Bureau of
Prisons has that authority. See, e.g., Johnson v. Moore, 948 F.2d
517, 519 (9th Cir. 1991) (rejecting prisoner's section 1983 action
challenging decision of Bureau of Prisons to transfer prisoner to
new jail); Barden v. Keohane, 921 F.2d 476, 479-83 (3d Cir. 1990).
It is clear that the district court lacked the authority to
designate the place of confinement in sentencing Voda under section
3563(b)(11).
The United States argues that even if the district court
lacked the authority to designate the place of incarceration under
3563(b)(11), the designation of Mansfield was permitted under
section 3563(b)(12), which, it asserts, allows a district court to
designate the community corrections facility at which one is
required to reside.5 Section 3563(b)(12) provides that as a
condition of probation a convict may be required to "reside at, or
participate in the program of, a community corrections facility
5
There is no indication that the district court designated
Mansfield under section 12 as opposed to section 11.
5
(including a facility maintained or under contract to the Bureau of
Prisons) for all or part of the term of probation." 18 U.S.C. §
3563(b)(12) (West Supp. 1993) (emphasis added).
Assuming that a district court may designate the place of
confinement when imposing sentences under section 3563(b)(12),
nevertheless a community corrections facility is not a jail and the
Mansfield Corrections Facility is a jail, not a community
corrections facility.6 Although the term "community corrections
facility" is not defined by the statute,7 the notes to United
States Sentencing Guideline (U.S.S.G. or Guideline) section 5F1.1
define "community confinement" as "residence in a community
treatment center, halfway house, restitution center, mental health
facility . . . ." The term "community confinement" in the
Guidelines is evidently intended to interpret section 12, as
reflected by its use in U.S.S.G. § 5C1.1(c)(3). Also, based on its
placement in section 3563(b), "community corrections facility"
appears to refer to rehabilitation facilities and half-way houses
(such as the County Rehabilitation Center where Voda is required to
reside after his confinement at Mansfield) and not jails. Section
12 follows section 11 on confinement with the Bureau of Prisons and
is contained in a section dealing with conditions of probation, not
conditions of imprisonment. Normally, conditions of probation are
6
The Sixth Circuit held that district courts have the
authority to designate the place of confinement under U.S.S.G. §
5C1.1(d), which corresponds to 3563(b)(12). Jalili, 925 F.2d at
894.
7
The legislative history also does not define the term. 1984
U.S.C.C.A.N., at 3182.
6
intended to be less restrictive than imprisonment.8 Thus, the term
community corrections facility does not refer to jails.
Because section 3563(b)(11) specifically states that the
condition of probation is that one "remain in the custody of the
Bureau of Prisons" and because Mansfield is a jail and not a
community corrections facility, the district court erred in
requiring that Voda's sixty days' confinement be served at
Mansfield. On remand, the district court may require Voda to serve
a period of confinement under the custody of the Bureau of Prisons
with a recommendation as to the place of confinement, may require
him to serve at a community corrections facility and perhaps
designate the place of such confinement, or may remove this
condition of probation altogether.
II. Firearm Prohibition
Next, Voda objects to the condition that prohibits him from
possessing a firearm during his probation. No reason was given by
the district court for imposing this condition, nor is any
suggested by the PSR or anything else in the record. The United
States argues that the firearm prohibition is warranted because
Voda's possession of a firearm may pose a risk to his probation
officer's safety, because Voda committed a serious offense, and
because this type of decision should be left to the discretion of
the district court.
8
Often a sentence to a community corrections facility is a
downward departure from a recommended sentence of imprisonment.
See United States v. Parker, 902 F.2d 221, 222 (3rd Cir. 1990)
("We think it clear that a period of confinement [at a community
corrections facility] as a condition of probation . . . cannot
possibly be equated with an equivalent period of imprisonment.").
7
Prohibition of firearm possession is one of the permissible
discretionary conditions of probation expressly listed in section
3563(b). Id. (9). However, section 3563(b) provides that its
listed conditions may be imposed "to the extent that such
conditions are reasonably related to the factors set forth in
section 3553(a)(1) and (a)(2) and to the extent that such
conditions involve only such deprivations of liberty or property as
are reasonably necessary for the purposes indicated in section
3553(a)(2)."9
Under the Guidelines, firearm prohibition may be imposed as a
condition of probation:
"If the instant conviction is for a felony, or if the
9
Section 3553(a)(1) and (2) provide:
"§ 3553. Imposition of a sentence
(a) Factors to be considered in imposing a
sentence.SQThe court shall impose a sentence
sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular
sentence to be imposed, shall considerSQ
(1) the nature and circumstances of the
offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposedSQ
(A) to reflect the seriousness of the
offense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;"
8
defendant was previously convicted of a felony or used a
firearm or other dangerous weapon in the course of the
instant offense, it is recommended that the court impose
a condition prohibiting the defendant from possessing a
firearm or other dangerous weapon." U.S.S.G. §
5B1.4(b)(14).
Section 5B1.4(b) gives the sentencing court discretion in
deciding whether or not to impose this condition. Id.
"Discretionary conditions of probation . . . must be `reasonably
related' to the goals of sentencing and involve `only such
deprivations of liberty and property as are reasonably necessary.'"
United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993) (citing
18 U.S.C. § 3563(b) (condition that tax evader give probation
officer access to any financial information and fully cooperate
with IRS in years not subject to litigation was improper); United
States v. Pendergast, 979 F.2d 1289 (8th Cir. 1992) (condition that
wire fraud convict not possess alcohol excessive since no evidence
showed convict abused alcohol). The general purpose of the firearm
prohibition is to prevent convicts from using firearms to harm
others in the future; other purposes may include punishment and
deterrence.
Neither Voda's charged offense nor the relevant conduct
involving that offense had any relevance to or connection with the
use or possession of any firearm or dangerous weapon. Voda was
convicted of a nonviolent misdemeanor. No persons were directly
endangered. Voda's offense involved merely negligent misconduct,
and thus does not suggest that Voda had any intent to harm others
or to violate the law. No evidence in the PSR indicates that Voda
has any tendency to violence in general or to abuse of (or
9
carelessness with) firearms or that he poses any danger whatever to
the public. Voda is still allowed to teach high school. The
chance that Voda might shoot his probation officer is as unlikely
here as in any misdemeanor conviction. Since Voda's past behavior
does not indicate that his possession of firearms makes him
dangerous, there is no need to impose this condition to protect the
public from future crimes by Voda. Imposing this condition of
probation also does not serve the punishment and deterrence goals
of sentencing under the Guidelines. Therefore, the district court
abused its discretion in imposing this firearms prohibition as a
condition of probation.
III. Imposition of Fine
As a condition of probation, the district court fined Voda
$3,000, to be paid at a rate of $60 per month beginning after
Voda's release from Mansfield.10 Voda contends that the district
court erred in thus fining him without any explanation, because the
court adopted the PSR findings reflecting Voda's inability to pay.
The PSR shows that Voda has both a negative net worth and a
negative current and anticipated cash flow. At age fifty-six, Voda
is beginning a new career as a school teacher, a career in which he
will likely not receive substantial salary increases over the next
several years. Voda is currently supporting his wife and a son who
is over eighteen, but currently unemployed. See U.S.S.G. §
5E1.2(e)(3). Voda's future ability to pay a fine is questionable.11
10
33 U.S.C. § 1319(c) specifies that the fine range is between
$2,500 and 25,000 for Voda's crime.
11
There is also no evidence that Voda may have any hidden
10
See United States v. Pattan, 931 F.2d 1035, 1044 (5th Cir. 1991),
cert. denied, 112 S. Ct. 2308 (1992) (fine vacated because it
interfered with convict's duty to support his family).12 As the PSR
reflected Voda's current and future inability to pay and the
government offered no contrary evidence, the imposition of a $3,000
fine appears unusual. See United States v. Rowland, 906 F.2d 621,
623-24 (11th Cir. 1990) (fine vacated since no evidence showed
current or future ability to pay). See Rivera, 971 F.2d at 895
(fine remanded for expression of reasons in light of confused
nature of record).
Because the district court did not give reasons for its
decision to fine Voda, it is difficult for us to review the
district court's decision in this respect.13 Since we are vacating
assets that he could use to pay the fine or relatives with
sufficient assets to help him. See United States v. Hagmann, 950
F.2d 175, 185 (5th Cir. 1991), cert. denied, 113 S. Ct. 108
(1992) (that Hagmann was convicted of importing almost seven tons
of marihuana suggested that he had access to funds in excess of
those listed in his in forma pauperis affidavit and justified
$100,000 fine). In his memorandum filed below prior to
sentencing, Voda cited the PSR, expressly asserted his complete
inability to pay a fine, and requested that no fine be imposed.
12
Voda's situation differs from that in United States v.
Matovsky, 935 F.2d 719 (5th Cir. 1991). There the defendant was
a relatively young, unemployed graduate student, with no
dependents, capable of obtaining future employment with a
sufficient income to allow him to pay his fine over time.
Matovsky, 935 F.2d at 720-723; United States v. O'Banion, 943
F.2d 1422, 1432 & n.11 (5th Cir. 1991) (fine may be based on
defendant's future ability to pay). Here, the United States did
not offer any evidence below, beyond the PSR, showing Voda's
ability to pay.
13
A court may impose a fine, even where a defendant
demonstrates the current and future inability to pay it; however,
a court generally should not impose a fine in that situation
unless the facts show the need for such a punitive or equitable
sanction. U.S.S.G. § 5E1.2 (d). United States v. Rivera, 971
11
Voda's sentence for other reasons, there is no need to review the
district court's decision to fine Voda at this time.
If, on resentencing, the district court chooses to impose a
fine, we suggest that the district court give reasons for its
decision. Although our decisions in Matovsky and Fair may not
require that a district court give reasons for imposing a fine in
every case in which the PSR contains facts suggesting the
defendant's inability to pay, but does not recommend against a
fine, the special circumstances of this case suggest that reasons
would at the least be most appropriate, and helpful in any
subsequent appeal, should the court again impose a fine.14
F.2d 876, 895 (2d Cir. 1992); United States v.Fair, 979 F.2d
1037, 1041 (5th Cir. 1992); United States v. Matovsky, 935 F.2d
719, 721 (5th Cir. 1991); 18 U.S.C. § 3572 (West Supp. 1993 at
82); U.S.S.G. § 5E1.2. However, neither the Constitution, nor
the applicable sentencing statutes, nor the sentencing guidelines
categorically prohibit a court from ever imposing a fine where
the defendant has proven his inability to pay it. Prior to the
enactment of the Guidelines, ability to pay was not considered as
a major factor in a court's decision to impose a fine. Instead,
ability to pay was considered later when the government attempted
to collect the fine. See e.g., United States v. Merritt, 639
F.2d 254, 257 (5th Cir. 1981). Constitutionally, courts are
limited in the penalty they can impose for nonpayment of criminal
fines because of inability to pay. Bearden v. Georgia, 103 S. Ct.
2064, 2068-71 (1983) (indigency no bar to imposing fine);
Williams v. Illinois, 90 S. Ct. 2018, 2023 (1970) (imprisonment,
beyond any already imposed prison sentence, could not be imposed
as a penalty for inability to a pay a fine.); Tate v. Short, 91
S. Ct. 668, 671 (1971). In 1986, the statute involving fines of
indigent prisoners, 18 U.S.C. § 3569, was repealed. New 18
U.S.C. § 3572 states that the ability to pay shall be considered
when a court imposes a fine. 18 U.S.C. § 3572. Similarly,
Section 5E1.2(f) of the Guidelines provides that if the defendant
shows an inability to pay, "the court may impose a lesser fine or
waive the fine altogether." U.S.S.G. § 5E1.2(f); Fair, 979 F.2d
at 1041.
14
Normally, a district court does not have to express reasons
for imposing a fine as long as it is shown that the judge
considered the defendant's ability to pay. Matovsky, 935 F.2d at
12
 Conclusion
As the district court lacked the authority to require Voda to
serve his confinement at Mansfield, and as the court abused its
discretion in imposing firearms prohibition as a condition of
probation, Voda's sentence is vacated and this case is remanded for
resentencing. The mandate shall issue forthwith.
SENTENCE VACATED and CAUSE REMANDED
722 (no PSR showing of future inability to pay). In Matovsky, we
held that where the PSR contains fact findings suggesting a
present inability to pay, but not recommending against a fine,
"`the appellate court will not reverse the fine merely because no
express finding was made but will review the finding of ability
to pay necessarily implied by such consideration.'" Id. (citation
omitted).
We held in United States v. Fair, that although the
defendant normally bears the burden of proof on the issue of
inability to pay: "[A] defendant may rely on the PSR to
establish his inability to pay . . . . When a sentencing court
adopts a PSR which recites facts showing limited or no ability to
pay a fine the government must come forward with evidence showing
that a defendant can in fact pay a fine before one is imposed."
979 F.2d at 1041 (emphasis added).
If a defendant may truly rely on the unobjected to fact
findings of a PSR, containing no recommendation, to prove his
inability to pay, Fair suggests that a district court should give
reasons for disagreement therewith. Similarly, although we held
in Matovsky that we would not reverse a fine because reasons were
not given where the PSR does not recommend against imposing a
fine, we did not hold that a district court should not explain
the reasons for its sentence. In Matovsky, the facts suggested a
future ability to pay, and there was no objection below. The
present case differs from Matovsky in these respects.
13