United States District Court, E.D. California
HEATHER E. WILLIAMS, Federal Defender, LINDA C. ALLISON,
Attorney for Clifford R. Beattie.
DEFENDANT'S SUPPLEMENTAL SENTENCING
Allison Claire Judge
defendant has previously filed a sentencing memorandum and
files this supplemental only to address some of the issues
raised in the government's sentencing memorandum.
authority to order restitution in any case is not an inherent
power of the courts, it is conferred by statute. See
United States v. Brock-Davis, 504 F.3d 991, 996
(9th Cir. 2007). There are three statutes that
give the Court authority to order restitution. 18 U.S.C.
§ 3663A provides that restitution is mandatory, without
regard to the defendant's ability to pay, in certain
enumerated cases. That statute is not applicable to this
sentencing hearing. 18 U.S.C. § 3663 grants the Court
discretion to order restitution in for convictions in other
enumerated offenses. That statute is also not applicable to
this sentencing hearing. 18 U.S.C. § 3563(b) provides
authority for ordering restitution as a condition of
probation. This is the statute the government is asking the
Court to rely on for authority to order restitution in this
case. This statute, however, does not provide the authority
to order the restitution that the government has asked for.
Hughey v. United States, 495 U.S. 411, 420 (1990),
the Supreme Court held that a defendant could only be
required to pay restitution to victims of the offenses for
which he was convicted. This limitation was abrogated by
subsequent amendments to 18 U.S.C. § 3663, which
provided that restitution could be ordered for losses beyond
those caused by the offense of conviction if the offense has
conspiracy, scheme, or pattern of conduct as an element.
See 18 U.S.C. § 3663(b); see United States
v. Thomsen, 830 F.3d 1049, 1064 (9th Cir. 2016).
Otherwise, Hughey “continue[s] to prohibit the
inclusion of ‘loss [not] caused by the specific conduct
that is the basis of the offense of conviction.'”
United States v. Lawrence, 189 F.3d 838, 846 (9th
Cir. 1999) (quoting Hughey); see also United
States v. Gamma Tech Indus., 265 F.3d 917, 927 n.10 (9th
Cir. 2001) (“The Hughey rule still applies,
however, where the defendant has not been convicted of an
offense having a conspiracy, scheme or pattern of conduct as
Beattie was only convicted on Count 3, removing any natural
feature or other property of the United States, under 16
U.S.C. § 551 and 36 C.F.R. § 261.9(b). This offense
does not include any element of conspiracy, scheme, or
pattern of conduct that would allow for restitution beyond
that which was caused by the underlying specific conduct.
Furthermore, because the specific conduct involved in
Beattie's sole conviction is simply the removal of
property of the United States, he cannot be made to pay
restitution related to the conduct underlying the counts he
was not convicted of, i.e., theft (Count 1), spraying hot
sparks (Count 4), and causing a forest fire (Count 5). Thus,
there is no basis for ordering restitution for costs
associated with the Wrights Fire.
the probation statute, 18 U.S.C. § 3563(b) states that
discretionary restitution in probation is “not subject
to the limitation of section 3663(a) or 3663A(c)(1)(A),
” 18 U.S.C. § 3563(b)(2), this provision has been
interpreted as allowing restitution for offenses not among
those listed in §§ 3663 or 3663A, see Gamma
Tech, 265 F.3d at 924 n.7. The provision does not,
however, “alter [the] analysis of whether a court may
order restitution for losses not caused by the offense
conduct, ” United States v. Varrone, 554 F.3d
327, 334 n.7 (2d Cir. 2009), and section 3563(b)(2) does not
authorize restitution for losses caused by offense conduct
that Beattie was not convicted of, see United States v.
Batson, 608 F.3d 630, 636-37 (9th Cir. 2010).
government has asked that as a condition of court probation,
Mr. Beattie be “banned” from the Eldorado
National Forest. This condition of probation is completely
unworkable given that Mr. Beattie lives in South Lake Tahoe.
The defense will provide a map of the area at sentencing to
illustrate how unworkable such a ban would be since unless he
was planning to travel by boat, Mr. Beattie would have to
enter the forest to leave South Lake Tahoe. Furthermore such
a condition is not sufficiently related to the offense
conduct in the offense of conviction.
U.S.C. § 3563(b)(6) allows for a court to require that a
defendant “refrain from frequenting specified kinds of
places” as a special condition of probation. However, a
court may only impose such requirements “to the extent
that such conditions involve only such deprivations of
liberty or property as are reasonably necessary for the
purposes indicated in [18 U.S.C.] section 3553(a)(2).”
18 U.S.C. § 3563(b). Section 3553(a)(2) states that a
sentence should reflect the seriousness of the offense,
adequately deter future criminal conduct, provide just
punishment, protect the public, and afford the defendant
effective correctional treatment. 18 U.S.C. §
3553(a)(2). These factors “relate directly to the
crime of conviction.” United States v.
Smith, 972 F.2d 960, 962 (8th Cir. 1992) (emphasis
added). Ultimately, the sentence must be “sufficient,
but not greater than necessary, ” to effectuate these
purposes. 18 U.S.C. § 3553(a)
ban from Eldorado National Forest is unreasonable given the
crime of Mr. Beattie's conviction and far greater than
necessary to serve the purposes of section 3563(b). Mr.
Beattie was convicted of Count 3 of the Superseding
Information, 16 U.S.C. § 551 and 36 C.F.R. 261.9(b),
Removing any Natural Feature or Other Property of the United
States, for removing parts of an old phone line in Eldorado
National Forest. Violation of 16 U.S.C. § 551 is a class
B misdemeanor and the severity of a wholesale ban from
Eldorado is not reflective of the offense.
borne out by an examination of other cases in which the
defendant committed a crime on National Forest land and was
prohibited in some way from accessing such land as a special
condition of probation. In United States v.
Tellstrom, No. 3:12-mj-00014-CMK, 2013 U.S. Dist. LEXIS
52520 (E.D. Cal. Apr. 11, 2013), the defendant was convicted
on 3 counts for damaging and cutting trees, building a road,
and damaging United States property in Shasta Trinity
National Forest. For this, he received a special condition of
probation prohibiting him from using the specific road where
the offense occurred. See Id. at *29. And in
United States v. Wyatt, 135 Fed.Appx. 16 (9th Cir.
2005), the defendants were convicted on 2 counts for aiding
and abetting the use of a hazardous device with the intent to
obstruct timber harvest and maintaining an authorized
structure on federal land. As a probation condition they were
prohibited from entering National Forest land except when
accessing wilderness areas. See Id. at 19. There are
cases from other circuits that are similar to
Tellstrom and Wyatt in that defendants with
more serious offenses of conviction than Mr. Beattie received
less severe prohibitions on access to National Forest land
than the complete ban that the government is recommending
here. See United States v. Patzer, 15 F.3d 934 (10th
Cir. 1993) (imposing on a defendant convicted of outfitting
on National Forest Service land, filming without special use
authorization, and outfitting without a license a special
condition of probation prohibiting him from outfitting and
recreational activity on National Forest land); see also
United States v. Williams, No. 06-cr-00374-WYD, 2009
U.S. Dist. LEXIS 116735 (Dec. 1, 2009 D. Colo.) (imposing on
a defendant convicted of 3 counts of interference with a
Forest Service Officer, 2 counts of conducting a service
without authorization, 1 count of unauthorized construction,
and 1 count of damaging U.S. property a special condition
excluding her from National Forest lands within a half-mile
radius of her former mining claims and from specific trails).
Mr. Beattie's sole conviction for removing the old phone
line from Eldorado, the total ban from Eldorado National
Forest is not warranted. Even if a prohibition on access to
National Forest land were imposed, it should be reasonably
limited in scope and more closely related to the location of
the offense as in the previously mentioned cases.
“Conditions that restrict a probationer's freedom
must be especially fine-tuned.” United States v.
Tolla, 781 F.2d 29, 34 (2d Cir. 1986). The
government's recommended probation condition lacks this
fine tuning, is not reflective of the seriousness of the
offense, and unreasonable given the facts at hand. Moreover,
a complete ban from Eldorado would not serve the other