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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-1841

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY THOMAS MILLS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

(April 14, 1992)
Before JOLLY, and HIGGINBOTHAM, Circuit Judges, and WILLIAMS,
District Judge.1
WILLIAMS, District Judge:
Defendant-Appellant Gary Mills appeals the imposition of that
portion of his criminal sentence which forbids him to work in the
car sales business during his period of supervised release. The
sentence was imposed after he pled guilty to the charges of mail
fraud and altering odometers on cars sold from his GM dealership.
We reject Appellant's contention that the occupational restriction
is tantamount to an upward departure from the Federal Sentencing
1District Judge of the Northern District of California,
sitting by designation.

Guidelines, and, therefore, affirm the lower court's sentence in
part. We reverse, however, that portion of the sentence which
requires Appellant to close and sell his business because it
exceeds the minimum sentence reasonably necessary to protect the
public.
FACTS AND PROCEEDINGS BELOW
Gary Mills is a used car salesman who pled guilty to turning
back odometers on twelve cars he sold over a two-year period in
violation of 15 U.S.C. งง 1984 & 1990 (c). He also pled guilty to
mail fraud for reporting false sales prices to the state of Texas
for sales tax purposes in violation of 18 U.S.C. ง 1341.
Appellant's conduct was evaluated at the offense level of nine (9),
and his criminal history category level was one (I). The range of
imprisonment required by the Guidelines at these levels is from
four to ten months. The district judge sentenced Mills to seven
months in jail, imposed a $ 10,000 fine, and ordered a three-year
term of supervised release. All aspects of the judgment were well
within the ranges specified in the guidelines. The district judge
also imposed the following occupational restriction on the
supervised release:
That defendant shall not own or operate a new or used car
business during the term of supervised release. Defendant
shall seek employment in an occupation other than automobile
sales and shall not accept any employment without approval of
the probation officer. Defendant shall close his current
business, GM Motor Company, located in Wichita Falls, Texas,
within 60 days of the entry of this order.
The district court imposed the sentence without entering
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findings of fact or issuing an opinion in support of the judgment.
Mills timely filed a notice of appeal. On Mills' motion, this
Court stayed, pending appeal, that portion of the judgment
requiring Mills to close his GM Motor Company dealership. U.S. v.
Mills, No. 91-1841 (5th Cir. Aug. 28, 1991).
Mills argues on appeal that imposing the occupational
restriction constituted an upward departure from the Guidelines,
and that he was therefore entitled to notice of this departure
before his sentencing hearing. The presentence report did not
indicate that Mills might be precluded from working in the car
business for a period after his release from prison.
Mills also argues that the restriction itself is an abuse of
discretion because it is not needed to protect the public from
continuing acts of unlawful conduct.
LEGAL ANALYSIS
A.
Was the imposition of occupational restrictions on
supervised release an upward departure from the Guidelines
requiring notice to Appellant prior to sentencing?
The United States Supreme Court recently addressed the issue
of sentencing departures in Burns v. United States, ___ U.S. ___,
111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991). In Burns, the Supreme
Court held that a sentencing court may not depart upward from the
Guidelines range without first notifying the parties. Id. at 2187.
The Court observed that Federal Rule of Criminal Procedure 32
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guarantees the parties "an opportunity to comment upon the
probation officer's determination and on other matters relating to
the appropriate sentence." Id. at 2186. The Court reasoned that
the right to comment would be worthless without the right to
advance notice that the Court intended to make a departure.
Under the Guidelines, a sentencing court has discretion to
order a term of supervised release in cases involving imprisonment
for a term of one year or less even when no statute requires such
supervised release. ง 5D1.1. Supervised release may be imposed in
order to facilitate the defendant's re-integration into the
community, to enforce a fine or restitution order, or to fulfill
any other purpose authorized by statute. See, Commentary to ง
5D1.1.
As a "special" condition of supervised release, the Guidelines
authorize the sentencing court to impose an occupational
restriction at its discretion. งง 5F1.5 & 5B1.4(b)(22), 18 U.S.C.
ง 3563(b). Section 5F1.5 provides as follows:
Occupational Restriction
(a)
The court may impose a condition of probation
or
supervised
release
prohibiting
the
defendant from engaging in a specified
occupation, business, or profession, or
limiting the terms on which the defendant may
do so, only if it determines that:
(1)
a reasonably direct relationship
existed between the defendant's
occupation, business, or profession
and the conduct relevant to the
offense of conviction; and
(2)
imposition of such a restriction is
reasonably necessary to protect the
public because there is reason to
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believe that, absent such
restriction, the defendant will
continue to engage in unlawful
conduct similar to that for which
the defendant was convicted.
(b)
If the court decides to impose a condition of
probation or supervised release restricting a
defendant's
engagement
in
a
specified
occupation, business, or profession, the court
shall impose the condition for the minimum
time and to the minimum extent necessary to
protect the public.
Federal Sentencing Guidelines, ง 5F1.5.
The occupational restriction imposed upon Mills in this case
is not an "upward departure" because it falls within the range of
sentencing conditions available to the court under the Guidelines.
In contrast, Burns and the other cases cited by the government
involved situations in which the courts imposed a term of
confinement exceeding the maximum range set forth in the
Guidelines' sentencing table. In our case, however, Appellant
received only the mid-range confinement of seven months. The
occupational restrictions were simply an exercise of the district
judge's authorized discretion to impose additional terms of
probation or supervised release. We do not believe it to be in the
interest of justice or the efficient administration of the
sentencing process to extend the notice requirements of Burns to
cases where the defendant's term of confinement is not at stake.
Requiring trial judges to give prior notice of their intent to
impose an occupational restriction would only further encumber the
lengthy sentencing process without adding anything to defendants'
existing procedural protections.
5

One purpose of a sentencing hearing is to afford the defendant
an opportunity to exercise his right of allocution. Fed. R. Crim.
P. 32(a)(1)(C). After hearing from the defendant, the witnesses,
and counsel for both sides, the judge announces the sentence he
intends to impose. Generally, after the sentence is announced,
counsel are given an opportunity to make further comment. It is
impractical to require a sentencing judge to give detailed notice
of an intended sentence before the above-described process is
completed. Moreover, it is wasteful to permit an appeal at that
stage of the proceeding solely because such notice was not given.
If either side is dissatisfied with the proposed sentence, counsel
can request a continuance for further preparation. If that motion
is denied, counsel can move for reconsideration or modification
after the sentence is imposed, 28 U.S.C. ง2255, and failing success
at the district court level, can appeal. Fed. R. App. P. 4(b).
B.
Did the district court abuse its discretion in imposing
occupational restrictions as a condition of supervised release?
Section 5D1.3 of the Guidelines gives a sentencing court broad
discretion to impose conditions on supervised release if they are
reasonably related to (1) the nature and circumstances of the
offense, (2) the need for adequate deterrence of further criminal
conduct, and (3) the need to protect the public. Mills' occupation
as a car dealer obviously bears a direct relationship to his
offense of tampering with odometers. In addition, the district
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judge expressly stated that he thought the restriction was
necessary to protect the public from Mills. We find no error with
these rulings. However, before affirming the judgment in its
entirety, we must also examine whether the occupational restriction
was impermissibly overbroad.
Section 5F1.1 limits the scope of the occupational restriction
to the minimum reasonably necessary to protect the public. The
Senate Judiciary Committee Report on the Comprehensive Crime
Control Act explains that the occupational restriction provision
was "intended to be used to preclude the continuation or repetition
of illegal activities while avoiding a bar from employment that
exceeds that needed to achieve that result." Commentary to ง 5F1.5
(citing S. Rep. No. 225, 98th Cong., 1st Sess. 96-97). The
condition "should not be used as a means of punishing the convicted
person." Id.
On appeal, the defendant may challenge the imposition of a
supervised release condition under 18 U.S.C. ง 3563(b)(6) if "the
sentence includes . . . a more limiting condition of probation or
supervised release under section 18 U.S.C. ง 3563(b)(6) . . . than
the maximum established in the guideline." 18 U.S.C. ง
3742(a)(3)(A).
We find the record does not warrant the condition that Mills
"close his business" and "not own" (i.e. sell) it for the term of
his supervised release. It is not the minimum condition reasonably
necessary to protect the public. It is sufficient to ban Mills
from all personal participation in the operations of his or any
7

other car business during the term of the supervised release.
Requiring Mills to sell his business during the term of supervised
release is tantamount to punishment, which is not permitted under
the Guidelines. See Commentary ง 5F.1.1. Accordingly, that
portion of the district judge's sentence is REVERSED and REMANDED
for sentencing in accordance with this decision. 18 U.S.C.
3742(E)(1)(b).
JOLLY, Circuit Judge, dissenting:
I respectfully dissent. Irrespective of whether the
occupational restriction is a technical "upward departure" from the
sentencing range under the guidelines, the Burns requirement that
the court must give notice to the defendant before the sentencing
hearing applies in this case. An occupational restriction is a
significant deprivation of a liberty interest -- just as is an
extended sentence to prison not authorized by the guidelines. The
Burns court recognized that for a defendant to take advantage of
his right to comment before sentence on the appropriateness of a
departure, he must be notified that the court is contemplating such
a departure. Burns, 111 S.Ct. at 2186. Surely, it follows that in
order for a defendant to comment effectively on an occupational
restriction -- a factually complex issue with myriad economic
ramifications -- he should be notified that the court is
contemplating such a restriction before the sentencing hearing so
that he may effectively prepare his comments.
The government argues that the defendant has such notice,
8

because an occupational restriction is one of the conditions of
supervised release authorized by the guidelines. I am unpersuaded.
The court may impose numerous conditions of supervised release on
the defendant under the guidelines. The guidelines are, therefore,
not effective notice to the defendant that the court is actually
contemplating any particular restriction, or indeed, any
restriction at all. At most, the guidelines provide notice that
the court may be contemplating one, or several, restrictions.
Under the government's argument, it is left to the defendant to
guess which, if any, will be applied and which he must address in
his allocution. Indeed, the Supreme Court in Burns recognized that
absent notice that the court was going to depart from the
guidelines, the defendant would be forced to anticipate and negate
in a random and wasteful manner "every conceivable ground on which
the district court might choose to depart...." Id. at 2187.
Clearly, that rationale applies here.
The majority argues that the defendant has several
opportunities to attack the occupational restriction once it has
been proposed. The majority points out that counsel can request a
continuance for further preparation, counsel can move for
reconsideration or modification after the sentence is imposed, and
counsel can appeal the sentence. The majority argues that forcing
the district court to provide notice before the sentencing hearing
that it is considering an occupational restriction would be
wasteful, given that the defendant has other opportunities to
comment on the condition. The majority, however, does not offer
any explanation as to why providing notice would be such a burden

to the court or, contrary to the reasoning in Burns, why it would
be a wasteful procedure.
It seems to me that the means by which the majority allows
allocution are more burdensome than providing notice. If notice
were required before the sentencing hearing and the defendant given
an opportunity to comment effectively on the restriction, the
district court's decision would be better informed and less likely
to be challenged afterward in the manner suggested by the majority.
This case is such an example: a notice requirement might have
prevented the district court from imposing the occupational
restriction that the majority now finds it necessary to reverse.
Furthermore, not only would the notice requirement be a more
efficient means of allocution by allowing the defendant to
effectively comment at the sentencing hearing, the notice
requirement would also protect the defendant's due process rights
to a greater extent than the means suggested by the majority
because those means arise after the sentence has already been
imposed.
For these reasons, I respectfully dissent.
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