United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1262

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Mark Anthony Cooper, *

*

Defendant - Appellant. *

___________

Submitted: November 16, 1998

Filed: March 18, 1999

___________

Before BEAM, LAY, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Mark Anthony Cooper pleaded guilty to unlawfully transporting explosive

materials in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a). The district court

sentenced him to time served and two years of supervised release. Cooper appeals

the imposition of eight special conditions of supervised release. Two of the

conditions are moot because Cooper has completed a three-month residency at the

Gerald Hinzman Community Corrections Center, and the district court has removed

the condition prohibiting him from entering Jones County without probation office
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consent. We affirm the remaining special conditions, except the condition prohibiting

Cooper from employment as a truck driver.

I.

Cooper is a former Army explosives expert who brought C4 explosives to his

home many years ago while working in a Marine Corps explosives disposal unit.

After his discharge, Cooper moved the explosives with him from South Carolina to

Iowa and put them in a rented storage locker. They were discovered in a warrant

search based upon information furnished by Cooper’s eleven-year-old daughter.

Marijuana seeds, baggies, and syringes were also found in the locker. At the time,

Cooper was employed as an over-the-road truck driver. 

The district court held a pretrial detention hearing. The Iowa Department of

Human Services reported that Cooper’s daughter was in state custody after alleging

that Cooper “put bruises on her legs,” physically abused his wife and two children,

and “disappeared for periods of three to four weeks at a time,” and that her parents

both used marijuana in their home. Mrs. Cooper testified that Cooper accidentally

shot her through the door of their California home in 1982. Assault and firearm

charges were pending against Cooper in state court for bringing to a police station at

gunpoint a drug dealer whom Cooper suspected of cheating his wife in a marijuana

purchase. The district court ordered Cooper detained as a danger to the community

pending trial. 

Prior to trial, Cooper moved for a competency hearing, and the court ordered

a mental evaluation. A forensic psychologist reported that Cooper suffered major

depression requiring “crisis intervention,” but that he refused to be evaluated for antidepressant medication. Pursuant to court order, Cooper was then hospitalized for

treatment at the Federal Medical Center in Springfield, Missouri. After he began

taking the prescribed anti-depressant medications, Cooper’s mental condition
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improved dramatically and he was released to the Hinzman Center in Cedar Rapids.

He was then declared competent to stand trial and pleaded guilty to the explosives

charge. 

Prior to sentencing, the probation office opposed Cooper’s request for a

holiday release from the Hinzman Center because of reports he had abused his wife

and children, and because his wife’s state probation officer had urged her to have no

contact with Cooper. On the eve of the sentencing hearing, the probation office

reported that Cooper was taking his anti-depressant medication but his cooperation

was “minimal at best.” A psychiatrist reported that Cooper’s mood improved when

he is on medication, but he would probably cease taking medication if removed from

a controlled environment. The probation office also reported Cooper’s admission

that, when employed as a truck driver prior to his detention, he would purchase onehalf gallon of whiskey for himself and his wife each weekend, and a statement by his

mother-in-law that the couple argued all the time but more when Cooper was

drinking. 

At the conclusion of the sentencing hearing, the district court imposed stringent

special conditions because Cooper had previously been “non-functional” and

“suicidal,” his prior conduct was “ not . . .[that] of a reasonable, nondangerous

person,” and medication made a “tremendous difference” in Cooper’s attitude and

behavior. The court observed that the case had “gotten more difficult as time has

gone on . . . in large part because of Mr. Cooper’s refusal to address the fact he has

a problem that needs to be addressed and to accept the help and the assistance that’s

out there.” 

II.

Sentencing judges have discretion to impose special conditions of supervised

release so long as the conditions are reasonably related to the sentencing factors

enumerated in 18 U.S.C. § 3553(a), involve no greater deprivation of liberty than is
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reasonably necessary, and are consistent with the Sentencing Commission’s pertinent

policy statements. See 18 U.S.C. § 3583(d); United States v. Bass, 121 F.3d 1218,

1223 (8th Cir. 1997); United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir.

1992). The relevant statutes and Guidelines provisions set forth numerous

discretionary conditions that a sentencing court is urged to impose when they are

consistent with the broad statutory objectives of sentencing. See 18 U.S.C. § 3563(b)

(discretionary conditions of probation, incorporated by reference in 18 U.S.C.

§ 3583(d)); U.S.S.G. § 5D1.3(c)-(e) (recommended “standard” and “special”

conditions). Applying these standards, we review the special conditions imposed in

this case for abuse of the district court’s broad sentencing discretion. 

Prohibition on Over-the-Road Truck Driving. The most difficult issue is

Cooper’s challenge to the special condition prohibiting him “from employment as a

truck driver if it involves absence from Cedar Rapids, IA., for more than 24 hours.”

This condition effectively bars Cooper from his pre-detention occupation. He earned

approximately $500 per week as an over-the-road trucker, substantially more than he

has been able to earn at various other jobs since his supervised release. Cooper

argues this condition is not reasonably related to his offense and imposes an overlyharsh financial hardship on himself and his dependents. We agree. 

The Government argues this is not an occupational restriction, but rather a

geographical limitation that reasonably ensures effective monitoring of Cooper by the

probation office and compliance with special conditions such as random urinalysis

and mental health treatment. This contention is without merit. The condition is an

explicit occupational prohibition and therefore is subject to the limitations on

imposing such conditions found in U.S.S.G. § 5F1.5(a):

(a) The court may impose a condition of probation or supervised release

prohibiting the defendant from engaging in a specified occupation,
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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 believe that, absent such

restriction, the defendant will continue to engage in unlawful conduct

similar to that for which the defendant was convicted.

These same limitations are found in 18 U.S.C. § 3563(b)(5), dealing with special

conditions of probation. The legislative history of this statute confirms that Congress

does not favor broad use of occupational prohibitions: 

The condition may be imposed only if the occupation, business, or

profession bears a reasonably direct relationship to the nature of the

offense. . . . The Committee recognizes the hardship that can flow from

preventing a person from engaging in a specific occupation . . . . This

particular condition of probation should only be used as reasonably

necessary to protect the public. It should not be used as a means of

punishing the convicted person. 

S. Rep. No. 98-225, at 96 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3279. In this

case, the occupational restriction bears no relationship to Cooper’s offense of

unlawfully transporting dangerous explosives to a storage locker many years ago.

Compare United States v. Choate, 101 F.3d 562, 566 (8th Cir. 1996) (restriction on

self-employment upheld because reasonably related to wire fraud offenses).

Therefore, this virtually absolute occupational prohibition on out-of-town truck

driving was an abuse of the district court’s discretion. 
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The government argues the probation office cannot effectively monitor whether

Cooper is taking his anti-depressant medication and abstaining from drug and alcohol

use if he disappears from Cedar Rapids for three or four weeks at a time, as his young

daughter accused him of doing when previously employed as an over-the-road

trucker. However, as Cooper points out, interstate truck drivers are subject to strict

government regulation of drug and alcohol use and are typically subject to work rules

that permit employer monitoring while they are on the road. See 49 C.F.R. §§

382.101-605, 395.8 (1997). On remand, the district court retains discretion to modify

the standard conditions of supervised release to fit this situation. The objectives

should be to permit effective monitoring of Cooper if he does obtain employment as

an over-the-road truck driver, while avoiding giving a probation officer so much

control over Cooper’s out-of-town trips that no trucking company would be willing

to employ him (for example, the present Standard Condition No. 1, unless modified,

might authorize the probation officer to veto each and every out-of-town trucking

assignment). 

Alcohol Consumption Prohibition. Cooper argues the district court abused its

discretion in imposing the condition that he abstain from “use of alcohol and . . .

frequenting bars, taverns or other establishments whose primary source of income is

derived from the sale of alcohol,” because there is no evidence he has abused alcohol

in the past, or that alcohol use contributed to commission of this offense. He relies

on two cases in which we vacated similar conditions for this reason. See Bass, 121

F.3d at 1223-24; Prendergast, 979 F.2d at 1293. 

This is a close question under the abuse of discretion standard. We agree with

Cooper that there is no evidence linking alcohol consumption and the offense of

conviction. But this special condition must only be related to “the goals of

rehabilitation and protection.” Prendergast, 979 F.2d at 1293. There is no concrete

evidence of alcohol abuse, as there was in United States v. Wesley, 81 F.3d 482, 484
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(4th Cir. 1996), and United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.), cert. denied,

514 U.S. 1121 (1995). But, unlike the records in Bass and Prendergast, there is some

evidence that Cooper abused his wife and children, that he and his wife consumed

large quantities of alcohol on weekends when he was employed as a truck driver, and

that the couple argued more when Cooper had been drinking. Given the other

evidence of Cooper’s propensity to violence and prior mental instability, and given

the fact we have vacated the prohibition against his employment as an over-the-road

truck driver -- an occupation particularly incompatible with alcohol consumption --

we conclude the district court did not abuse its discretion in imposing this special

condition of his two-year supervised release.

Drug and Alcohol Testing and Treatment. Cooper also challenges the special

condition requiring that he participate in testing and treatment for drug and alcohol

abuse “as directed by his probation officer.” Some testing for substance abuse is a

mandatory condition of supervised release unless “ameliorated or suspended” by the

district court. See 18 U.S.C. §§ 3563(a)(5), 3583(d); U.S.S.G. § 5D1.3(a)(4).

Participation in an approved substance abuse program is a discretionary condition that

may be imposed “[i]f the court has reason to believe that the defendant is an abuser

of narcotics, other controlled substances or alcohol.” U.S.S.G. § 5D1.3(d)(4). Here,

there was evidence Cooper and his wife purchased and used marijuana in their home.

Evidence of marijuana use was found with the C4 explosives in his storage locker.

In these circumstances, the district court did not abuse its discretion in imposing this

special condition. “When it comes to controlled substances, unlike alcohol which can

be consumed legally, a user is by definition an abuser.” United States v. Simmons,

130 F.3d 1223, 1224 (7th Cir. 1997). 

Other Special Conditions. We have little difficulty upholding the remaining

special conditions imposed by the district court and challenged on appeal. Cooper

challenges the special condition that, “If deemed appropriate, [he] shall undergo
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mental health counseling and treatment.” This contention is without merit. His

recent history of major depression, refusal to take anti-depressant medications, and

conduct dangerous to himself and others clearly justify this limited special condition.

Similarly, the requirement that Cooper “participate in the Batterer’s Education

Program within 6 months, if ordered by the state juvenile court,” was justified by the

evidence that state officials have been concerned about Cooper’s alleged domestic

abuse. By limiting this condition to program participation ordered by the state court,

the district court tailored it to “provide defendant with needed . . . correctional

treatment” while avoiding a “greater deprivation of liberty than is reasonably

necessary.” U.S.S.G. § 5D1.3(b). Finally, Cooper objects to the special condition

requiring him to “immediately provide the probation officer with all waivers

previously requested and access to any requested psychiatric and medical records.”

This condition reasonably amplifies the standard condition that Cooper “answer

truthfully all inquiries of the probation officer and follow the instructions of the

probation officer.” U.S.S.G. § 5D1.3 (c)(3). These two special conditions are not an

abuse of the district court’s discretion. 

The judgment of the district court is modified to delete the special condition

of supervised release prohibiting Cooper “from employment as a truck driver if it

involves absence from Cedar Rapids, IA., for more than 24 hours.” As so modified,

the judgment is affirmed, and the case is remanded for such further sentencing

proceedings as the district court may in its discretion deem appropriate.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.