Sentencing — supervised release — conditions

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — supervised release — conditions

A supervised release condition that a defendant convicted of extortion not be self-employed was not supported by the evidence.

“The district court gave some brief explanation for the self-employment ban, first raising its own concern about Farmer’s spotty employment and tax payment history, and then adopting the government’s suggestion of a self-employment ban, raised for the first time at the hearing. See Transcript of Plea and Sentencing and Competency Hearing, United States v. Farmer, No. 4:12-cr-00026 (S.D. Ind. Nov. 14, 2013), ECF No. 84, 54–55 (discussing Farmer’s self-employment over the past ten years), 57–59 (discussing with the parties, then imposing, a prohibition on self-employment, on the basis that Farmer ‘hasn’t paid anything into Social Security other than $1,200’ and that the requirement that he ‘start working and get[] a paycheck and pay[] taxes and become a good citizen’ may rid Farmer of ‘that temptation to con people’). However, the district court’s ex-planation did not provide the necessary nexus between Farmer’s underlying crime — attempted extortion — and the self-employment ban. The district court did not determine that Farmer’s activities as a self-employed entrepreneur caused him to attempt to extort Walter Allen. The court’s explanation focused instead on its belief that Farmer’s lack of success as an entrepreneur was causing him to turn to con activities to fund himself: perhaps not an incorrect conjecture, but one that is insufficient to meet the requirement that the occupation being restricted or banned ‘bear a reasonably direct relationship’ to the ‘conduct relevant to the offense of conviction.’ U.S.S.G. § 5F.15(a); cf. United States v. Wittig, 528 F.3d 1280, 1288 (10th Cir. 2008) (reasoning, on the basis of the relevant statute and guidelines, that a court that did not explain how the occupational restriction related to the offense of conviction had erred, and that ‘[t]he mere fact [Defendant] engaged in such conduct while employed as an executive does not establish the necessary connection between the conduct and his management/executive positions’). The court also noted Farmer’s spotty tax payment history, stating: ‘He hasn’t paid anything into Social Security other than $1,200. He’s 48 years old. He’s going to have nothing paid in as he becomes a senior citizen.’ But Farmer’s offense of conviction is extortion rather than a tax offense. Farmer’s age and status with regard to Social Security seem irrelevant to whether there was a ‘reasonably direct relationship’ between his extortionate activities and his self-employment.

Vacated and Remanded.

13-3373 U.S. v. Farmer

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Tinder, J.