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January 5, 2012

Eighth Circuit affirms supervised release condition prohibiting "entering bars, taverns, or [similar] establishments"

The Eighth Circuit has an interesting ruling concerning an interesting supervised release condition in US v. Forde, No. 11-107 (8th Cir. Jan. 5, 2012) (available here).  Here are the basics of the issue and the ruling:

Toliver challenges the district court’s imposition of a special condition prohibiting him from using alcohol and “from entering bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.”...

Our precedent in reviewing alcohol prohibitions has “yielded mixed results.” United States v. Simons, 614 F.3d 475, 480 (8th Cir. 2010).  “In general, we have upheld such bans for defendants with substance-abuse problems,” but have reversed “where the defendant’s history or crime of conviction did not support a complete ban on alcohol.” See id. (citing cases for this proposition).  In Toliver’s case, there is no indication his crime of conviction — conspiring to distribute cocaine— was in any way related to alcohol or bars, taverns, or similar establishments.  The question then is whether Toliver’s history justified prohibiting him from both using alcohol and entering bars and taverns. Though a close question, we conclude it does.

According to the PSR, Toliver, 26 years old at the time of sentencing, reported that he “started to consume alcohol when he was 18 years old,” and “considered himself a ‘social’ drinker ever since.” Toliver also “reported daily use of marijuana since he was 13 years old” and he had “completed a four-week outpatient drug program in Chicago.” The district court found Toliver was a substance abuser and in making an individualized assessment, explained it was “familiar with the addiction process and the fact that there is cross addiction, that drug users when they get off of drugs frequently abuse alcohol,” and the alcohol and bars and taverns restriction is “primarily . . . because [Toliver] is also a substance abuser when it comes to marijuana.”...

Toliver contends this aspect of the condition “imposes a greater deprivation of liberty than necessary to achieve the statutory purposes of supervised release” in violation of § 3583(d).  But the district court expressly connected this aspect of the condition to Toliver’s rehabilitation from his drug dependency, and we have upheld such a restriction for purposes of rehabilitation before.... Considering the district court narrowed the scope of the prohibition to establishments “whose primary source of income is derived from the sale of alcohol,” we determine the restriction is not overbroad and its imposition was within the district court’s broad sentencing discretion.

January 5, 2012 at 12:27 PM | Permalink


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