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10th Circuit Orders District Court to Reconsider Restrictive Sentencing Conditions

Eugene Sunday argued that computer and mental health conditions of the supervised release portion of his sentence constituted an occupational restriction unsupported by the Guidelines Manual of the U.S. Sentencing Commission, (USSG), Section 5F1.5. The district court had imposed the following special conditions of supervised release: "(1) The defendant shall not use or possess any computer not authorized by the U.S. Probation officer... (2) The Defendant shall consent to having installed on his computer at his own expense any hardware or software systems to monitor computer use... The defendant shall consent to the U.S. Probation officer conducting periodic unannounced examinations of his computer hardware, software and other electronic devices which may include retrieval and copying of all data from his computer..."

Sunday had been convicted of engaging in various schemes of financial manipulation, wherein he used counterfeit checks and bad checks drawn on his own account to obtain funds illegally, much of which he invested in Nigerian internet money scams, to his detriment.

Sunday's Pre-Sentence Report (PSR) had made no mention of the conditions of supervised release; no notice of these conditions was given prior to their pronouncement. After learning of the special conditions at sentencing, Sunday's attorney made no objection, and the sentence was imposed as originally stated.

Mr. Sunday stated that these conditions were "overly broad, unsupported by the facts, violate his Fourth Amendment privacy rights, affect his employment prospects and make it more difficult for him to pay his monthly mandatory restitution.” The USSG, Section 5D1.5, require that findings be made to justify these special conditions, and that this failure was plain error.

The court noted that United States v. White, 244 F.3d 1199 (10th Cir. 2001), had already cautioned "that the broad prohibitions on computer use or possession can interfere with such routine activities as 'using a computer at a library to do any research, get a weather forecast, or read a newspaper online.' Thus, we must ensure that the restriction is 'for the minimum time and to the minimum extent necessary to protect the public...' In this case, Mr. Sunday is a computer repairman which obviously, requires direct contact with various computers... the computer was not the central means he used (to commit fraud)..."

The court concluded that the "imposition of an erroneous restriction seriously affects the fairness... of the judicial proceedings." U.S. v. Olano, 507 U.S. 725 (1993), and vacated the restriction remanding the case to the district court for resentencing. The court was also required to reevaluate the mental health evaluation and treatment ordered, and should avoid ambiguities similar to what was brought before the court on appeal. See: United States v. Sunday, 447 Fed.Appx. 885 (10th Cir. 2012)(unpublished).

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Related legal case

United States v. Sunday