United States v. Eric Mack

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, PASCO M. BOWMAN and KERMIT E. BYE (UNPUBLISHED) [3881736] [11-2491]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2491
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United States of America,
Appellee,
v.
Eric L. Mack,
Appellant.

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*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
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*
[UNPUBLISHED]
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*
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Submitted: February 13, 2012
Filed: February 21, 2012
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Before LOKEN, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
After Eric Mack violated the terms of his supervised release, the District Court1
revoked Mack’s release and sentenced him to eighteen months in prison followed by
twelve months of supervised release. The court imposed several special conditions
of supervised release, two of which Mack appeals. We affirm.

1

The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

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In general, a district court has wide discretion to impose special conditions of
supervised release as long as those conditions are reasonably related to the nature and
circumstances of the offense, the history and characteristics of the defendant, the
deterrence of criminal conduct, the protection of the public from any future crimes
of the defendant, and the defendant’s correctional needs; the conditions do not
involve a deprivation of liberty that is greater than reasonably necessary to deter
criminal conduct, protect the public, and promote the defendant’s correctional needs;
and the conditions are consistent with any pertinent Sentencing Commission policy
statements. 18 U.S.C. § 3583(d); United States v. Boston, 494 F.3d 660, 667 (8th Cir.
2007). A special condition must be tailored to achieve these purposes, and it must be
supported by individualized findings about its appropriateness for a particular
defendant. See United States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009). But even
if a district court fails to make the requisite individualized findings, we need not
vacate a special condition “if the basis for the imposed condition can be discerned
from the record.” United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011).
Mack first argues that the District Court abused its discretion by imposing
Special Condition 2, which prohibits Mack from “consum[ing] or possess[ing]
alcoholic beverages or beer” or entering “any establishment where alcoholic
beverages are the primary items for sale.” Judgment at 4. We have generally upheld
bans on alcohol consumption for defendants with substance-abuse problems, but
when such a ban is not supported by the defendant's history or crime of conviction,
we have reversed. See, e.g., United States v. Simons, 614 F.3d 475, 480 (8th Cir.
2010) (collecting cases). Here, the District Court judge who presided over Mack’s
revocation hearing also presided over the proceedings for his underlying drug
offense, and the court was well aware of Mack’s criminal history. Mack’s 2001
Presentence Investigation Report (PSR) indicated that he had three prior convictions
for DUI offenses, that he had used alcohol “almost daily” since the age of twenty, and
that he was a confessed alcoholic. PSR ¶ 63. When Mack was arrested for the most
recent violation of his supervised release, he admitted to officers that he had used
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crack a few days earlier, and the PSR noted that Mack “‘snorted’ powder cocaine an
average of two times monthly until his arrest.” Id. ¶ 65. At Mack’s revocation
hearing, the District Court explained the need for a complete alcohol ban by noting,
“[Y]ou’ve used drugs in the past. And my experience has been, somebody gets to
drinking and they lose their ability to resist the temptation to go on to drugs. That’s
why I want it in there.” Revocation Hr’g Tr. at 11. The record shows that a complete
ban on alcohol consumption was appropriate in light of Mack’s admitted alcoholism,
his drug history, and his overall criminal history—including his three DUI
convictions and ongoing drug use. The court did not abuse its discretion by imposing
a complete ban on alcohol in these circumstances. See United States v. Forde, 664
F.3d 1219, 1223 (8th Cir. 2012) (upholding ban on alcohol consumption because
threat of cross-addiction to drug-dependent defendant was not pure speculation).
Mack next argues that the District Court abused its discretion by imposing
Special Condition 4, which requires that Mack “be at his place of residence between
the hours of 10:00 p.m. and 6:00 a.m., 7 days per week, unless his work schedule
requires him to be at work past 10:00 p.m.” J. of June 24, 2011, at 4. The court
advised Mack that in its experience, most defendants who “violate supervised release
do it after 10:00 p.m.” and stated, “I don’t want you out socializing or doing anything
past 10:00 p.m.” Revocation Hr’g Tr. at 11. We have upheld the imposition of a
curfew if it is reasonably related to the protection of the public, the rehabilitation and
effective correctional treatment of the defendant, and the deterrence of future crimes
by the defendant. See United States v. Asalati, 615 F.3d 1001, 1007–08 (8th Cir.
2010). Here, the PSR indicated that Mack’s arrest for his second DUI offense
occurred at 2:30 a.m., after Mack was stopped for speeding, and his third DUI arrest
occurred at 1:22 a.m. PSR ¶¶ 48, 49. Because Mack’s criminal history supports
imposition of a curfew and the curfew is reasonably related to the protection of the
public and Mack’s rehabilitative and correctional needs, the District Court did not
abuse its discretion by imposing this condition.
For the foregoing reasons, we affirm the judgment of the District Court.
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Date Filed: 02/21/2012 Entry ID: 3881736