“Marcus Betts worked for TransUnion LLC, one of the three major credit reporting agencies. He was the leader of the unit that decided disputes, where people claimed that some black mark on their credit score was inaccurate.” Betts took bribes to falsely improve credit scores, falsifying “654 credit histories, generating around a million dollars in losses to lenders who got stuck with bad risks.” After pleading guilty to conspiracy, Betts appealed four supervised release conditions.
The sentencing court ordered Betts to pay restitution totaling $967,340, and ordered that “as directed by the Probation Officer, the defendant shall apply monies received from income tax refunds, lottery winnings, inheritance, judgments, and any anticipated or unexpected financial gains to the outstanding Court ordered financial obligation.”
The Ninth Circuit held that “the district court erred in delegating what would be done to the probation officer. The problem is not that part or all of the money will be applied to restitution, but rather that the probation officer instead of the judge will decide how much.” The court observed that it had previously held, in accord with its sister circuits that under 18 U.S.C. § 3664 (f)(2), fixing terms of restitution is nondelegable. See United States v. Gunning, 401 F3d 1145 (9th Cir. 2005); and United States v. Gunning, 339 F3d 948 (9th Cir. 2003). Accordingly, the court vacated the sentence, concluding that “the district court erred by delegating to the probation office how large restitution payment terms would be affected by windfalls.”
The court also granted Betts’ challenge to a condition requiring him to abstain from using alcohol, because there was “nothing in the record to suggest that the judge thought there was any past abuse of alcohol, or any relationship between alcohol and Betts’ crime.” The condition, therefore, failed the test announced in United States v. Weber, 451 F3d 552 (9th Cir. 2006), requiring an “individualized” determination based on
“the nature and circumstances of the characteristics of the defendant.’ The court joined the Sixth and Eighth Circuits in invalidating the condition on this basis. See: United States v. Modena, 302 F3d 626 (6th Cir. 2002) and Untied States v. Pendergast, 979 F2d 1289 (8th Cir. 1992). The court observed that “moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is never the less a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.”
The court upheld a condition mandating “that ‘the defendant shall not be employed in any capacity where in he has custody, control, or management, of his employers funds, lines of credit, or any similar sources of monies.’”
In upholding the condition, the court found that it is not sufficient “that the barn door only be locked against the commission of a substantially identical crime. The public is entitled to be protected against crimes flowing from the same character trait demonstrated by the crime.”
The court also upheld the condition requiring warrantless searches of Betts’ person and property, citing Samson v. California, 126 S.Ct. 2193 (2006). “Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori, the individualized requirement imposed in this case on supervised release does not.” See: United States v. Betts, 511 F.3d 872 (9th Cir. 2007).
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Related legal case
United States v. Betts
|Cite||511 F.3d 872 (9th Cir. 2007)|
|Level||Court of Appeals|