* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR
. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 2 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 03-5114

v. (N.D. Oklahoma) WILLIAM ALLEN TURNER,

Defendant-Appellant. (D.C. NO. 00-CR-113-C)

ORDER AND JUDGMENT *

Before HENRY , BALDOCK , and HARTZ , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34 (a)(2); 10 TH C IR
. R. 34.1(G). The case therefore is ordered submitted without oral argumen t.-2-

William Allen Turner pleaded guilty to bank fraud i n violation of 18 U.S.C. § 1344(1) on January 25, 2001. On November 14, 200 2, Mr. Turner was sentenced to zero months’ imprisonment and five yea rs’ supervised release, ordered to make restitution in the amount of $96,79 3.99, and assessed $100.00. In March 2003, the United States Probation Office f iled a “Petition for Action of Supervised Release,” alleging that Mr. Turner violated the conditions of his release by failing to pay restitution, leaving the judicial district without permission, failing to submit required monthly repo rts, failing to truthfully answer all inquiries from the probation officer, and faili ng to provide the probation officer with access to all financial information. A “Superseding Petition for Action of Supervised Release,” filed in April 2003, alleged that, in addition to the violations listed above, Mr. Turner also attempted to obtain a line of credit without first consulting the probation officer. Mr. Turner filed a motion to dismiss the Petition f or Action of Supervised Release, arguing that his original sentence was ill egal because a supervised release can only follow a period of imprisonment. The district court denied Mr. Turner’s motion to dismiss and found, after a full evidentiary hearing, that Mr. Turner had violated the terms and conditions of his supervised released. On June 23, 2003, the court sentenced Mr. Turner to twelve months’ imprisonment and forty-eight months’ supervised release and reimpose d restitution. Mr. Turner-3-

appeals the judgment and sentence. We exercise jur isdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND Prior to being charged with bank fraud, Mr. Turner was self-employed as a roofing contractor. In 1999, Mr. Turner’s roofing business declined due to a variety of factors, including slow payments from cu stomers, bad weather, a poor economy, and Mr. Turner’s failing health. Apparent ly in an effort to make debt and payroll payments, Mr. Turner knowingly initiate d a check kiting scheme. From on or about February 1, 1999, to on or about M arch 31, 1999, he defrauded three Oklahoma financial institutions, ultimately c ausing a total loss of approximately $290,000. Mr. Turner has been in poor health for several year s. After pleading guilty to bank fraud in violation of 18 U.S.C. § 1344(1), he began experiencing debilitating health problems associated with severe , chronic coronary disease. Mr. Turner’s heart condition caused his sentencing to be delayed several times. He was placed on a heart transplant list in August 2001, suffered a heart attack in November 2001, and underwent a coronary bypass graf t procedure the next year. Following these health-related delays, the districtcourt finally sentenced Mr. Turner on November 14, 2002. Mr. Turner moved for a downward departure-4-

based on his poor health, and the government agreed such a departure was warranted. The district court granted the motion f or downward departure and sentenced Mr. Turner to zero months’ imprisonment a nd five years’ supervised release, despite the fact that the Sentencing Guide lines provided a range of twelve to eighteen months’ imprisonment based on Mr. Turne r’s total offense level of thirteen and his criminal history category of I. R ec. vol. II, at 17 (Presentence Investigation Report, approved Oct. 28, 2002). Mr. Turner did not appeal his conviction or sentence. Mr. Turner’s supervised release included two mandat ory conditions of supervision, sixteen standard conditions, and three additional conditions. The government alleged that Mr. Turner violated six of these conditions: 1) he was $9,000 in arrears on his restitution as of April 20 03; 2) he left the state of Oklahoma and traveled to Amarillo, Texas on Decembe r 6, 2002, without first obtaining an interstate travel permit from the Unit ed States Probation Office; 3) he did not submit mandatory monthly reports for the months of December 2002, and January, February, and March 2003; 4) he repeat edly falsely denied having a roommate in violation of his obligation to truthful ly answer all inquiries by the probation officer; 5) he attempted to open a line o f credit with Moody’s Jewelry to facilitate the purchase of a $20,000 ring set fo r his girlfriend without obtaining the permission of the Probation Office to engage in a credit transaction; and 6) he-5-

failed to provide the Probation Office with request ed financial and accounting records. In his motion to dismiss, Mr. Turner argued that hi s original sentence was illegal because a supervised release can only be imposed following a period of imprisonment and that, consequently, his supervised release could not be revoked. He also argued that any violations of his supervise d release were technical and minor in nature and did not merit imprisonment. Af ter a full evidentiary hearing, the district court found that Mr. Turner had violat ed the conditions of his supervised release. At a new sentencing hearing on June 23, 2003, the court sentenced Mr. Turner to twelve months’ imprisonmentand forty-eight months’ supervised release and reimposed the restitution an d special assessment requirements. Mr. Turner now appeals his sentence. On appeal, Mr. Turner alleges that: 1) his original sentence was illegal because a supervised release can only follow a sent ence of imprisonment; 2) the district court should not have imposed a new prison sentence for Mr. Turner’s violations of his supervised release; 3) the distri ct court erred by denying him the right to engage in self-employment during his supervised release; and 4) the district court erred by failing to give him advance notice of the restriction on selfemployment.-6- II. DISCUSSION A. Legality of the Original Sentence In arguing against the revocation of his supervised release, Mr. Turner challenges the legality of his original sentence. He argues that a sentence of zero months’ imprisonment and five years’ supervised rel ease is illegal because supervised release can only be imposed following a period of initial imprisonment. Both Mr. Turner and the government c oncede that the first part of the original sentence is legal, as we have explicit ly upheld a sentence of zero months’ imprisonment. See United States v. Elliott , 971 F.2d 620, 621 (10th Cir. 1992) (“We conclude that a sentence of zero months does not literally violate the prohibition on probation in 18 U.S.C. § 3561(a)(1). ”). The United States Code and the Sentencing Guideline s suggest that a period of imprisonment must proceed a supervised release. See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment .”) (emphasis added); U.S.S.G. § 5D1.1 (“(a) The court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or when required by statute. (b) The court may order a term of supervised release to follow imprisonmentin any other case.”)-7-

(emphasis added). Based on this language, the Seco nd Circuit has held that “[i]t is clear that supervised release can never be impos ed without an initial period of imprisonment.” United States v. Thomas , 135 F.3d 873, 875 (2d Cir. 1998). However, we need not decide at this time whether § 3583(a) and U.S.S.G. § 5D1.1 compel the conclusion that supervised release presupposes a period of imprisonment because we find that Mr. Turner waived his right to challenge the legality of his sentence by failing to raise the is sue on direct appeal. “In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after the later of: ( i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.” F ED
. R. A PP
. P. 4(b)(1)(A). The court originally sentenced Mr. Tur ner on November 14, 2002; the judgment was entered on N ovember 22, 2002. Mr. Turner did not file an appeal of his sentence withi n the ten-day period. He asserts that he is now making a direct attack on the legali ty of the sentence, but such an attack is clearly time-barred under the Federal Rul es of Appellate Procedure. Mr. Turner relies on the Second Circuit opinion in United States v. Thomas , in which the defendant successfully challenged the legality of her original sentence despite having failed to raise the issue o n direct appeal. Thomas is distinguishable from this case, however, because in Thomas the government conceded the permissibility of the challenge. 135 F.3d at 874. Here, the1 A defendant can also be excused from failing to ra ise a challenge on

direct appeal by showing that the error has resulte d in a fundamental miscarriage of justice. See United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996). The miscarriage of justice exception does not apply in this case because Mr. Turner “has not made a colorable showing of factual innoce nce.” Id. ; see also Schlup v. Delo , 513 U.S. 298, 321 (1995) (noting that the miscarr iage of justice exception is “explicitly tied” to defendant’s innocence). -8- government argues that Mr. Turner’s challenge to th e legality of his sentence is barred due to his failure to raise the issue on dir ect appeal. Alternatively, Mr. Turner’s challenge to his origin al sentence can be viewed as a collateral attack. Mr. Turner contends that his challenge is not collateral in nature because he is “directly” attac king the revocation of his original sentence. The government posits that “[w] hen the Probation Office sought to revoke the supervised release portion of the sentence, [Mr. Turner] did challenge the sentence collaterally” and that “[i]n doing so, he, in effect, made a motion to the district court pursuant to 28 U.S.C. § 2255.” Aple’s Br. at 18. However, Mr. Turner’s argument cannot succeed even if he did pursue this issue through a collateral challenge, as his failure to c hallenge the sentence on direct appeal severely limits his ability to raise the iss ue collaterally. “Generally, a movant is barred from raising an alle ged error affecting his conviction or sentence for the first time on collat eral review unless he can show both cause for the default and actual prejudice.” 1 United States v. Wiseman , 297 F.3d 975, 979 (10th Cir. 2002); see also United States v. Frady , 456 U.S. 153,-9-

167 (1982) (“[T]o obtain collateral relief based on trial erro rs to which no contemporaneous objection was made, a convicted def endant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.”). A movant can show cause for the procedural default if he can demonstrate that his claim was so novel that its le gal basis was not reasonably available to counsel. Cause can also be established by showing that counsel rendered constitutionally inef fective assistance. Additionally, the § 2255 movant who challenges his conviction can overcome the procedural bar if he can demonstrate t hat the constitutional error has probably resulted in the c onviction of one who is actually innocent.
Wiseman , 297 F.3d at 979 (internal citations and quotation marks omitted). Mr. Turner has not attempted to show cause for fail ing to raise the issue on direct appeal or actual prejudice resulting from th e error. Notably, he actively sought the sentence he now claims is illegal by fil ing a sentencing motion asking for “a downward departure of five levels to a level 8, which would permit the Court to impose a sentence of zero-months custody followed by Supervised Release .” Aplt’s Br. at 12 (quoting Defendant’s Sentencin g Motion at 23). His zero-month sentence was far below the twelve- to ei ghteen-month range provided in the Sentencing Guidelines and resulted from the district court’s concern for his health and desire to facilitate rehabilitation. See Rec. vol. 1, doc. 111, at 1 (Order, filed June 11, 2003) (“At sentencing, the C ourt granted the government’s motion for a downward departure on the basis of Def endant’s serious medical-10-

condition.”). Mr. Turner clearly had no intention of challenging the sentence until he found himself back in court for violating the te rms of his supervised release. For these reasons, we hold that Mr. Turner’s challe nge to the legality of his original sentence is barred by his failure to timel y raise the issue on direct appeal. B. Appropriateness of the New Prison Sentence Mr. Turner argues that any violations of his superv ised release were “technical or non-willful” and should not have resu lted in the revocation of his supervised release and the imposition of a new pris on sentence. Aplt’s Br. at 15. The government’s Petition for Action of Supervised Release listed six separate violations of the terms and conditions of the supervised release committed by Mr. Turner. At the evidentiary hearing on the revocati on of the supervised release, the district court found that “[t]he testimony clea rly supports the violations and failure to comply with the reporting [requirements] , leaving the state without permission, failure to file, [and failure to] provi de the financial statements as requested by the probation officer.” Rec. vol. III , at 94 (Tr. of Revocation Hr’g, dated May 29, 2003). The court went on to note that “[t]he failure to pay restitution also is a failure” to comply with the t erms of the supervised release. Id. “This court reviews a district court’s decision to revoke supervised release for abuse of discretion. Legal questions relating to the revocation of supervised-11-

release are reviewed de novo.” United States v. Disney , 253 F.3d 1211, 1213 (10th Cir. 2001) (internal citations omitted). “Th e district court must find by a preponderance of the evidence that the defendant vi olated a condition of his supervised release.” Id . (internal quotation marks omitted). Mr. Turner characterizes each of the six violations alleged by the government as either misunderstandings or non-willf ul acts. In response to the allegations, he argues: 1) that he did not pay rest itution due to lack of funds; 2) that he did not realize that he lacked permission t o leave the state on a business trip and that he reported back to the Probation Off ice and submitted hotel receipts from the trip upon his return; 3) that his failure to submit monthly reports was due to his poor health; 4) that he denied having a room mate because he thought of the alleged roommate as a caretaker; 5) that his transa ction with Moody’s Jewelry involved bartering for roofing services and was the refore not a credit transaction; and 6) that he did not submit requested financial d ocuments because he was too sick to dig through the boxes to find them. The di strict court heard and rejected each of these excuses after a thorough revocation h earing involving six witnesses. The court chose not to credit Mr. Turner’s testimony, concluding “[i]t seems somewhat confusing or a mystery that Mr. Turner has a fiancee, he was going to buy a $20,000 ring but he was so depressed that he can’t work, he can’t make a report, [and] he can’t get it to the probation offi ce. In fact, it’s so conflicting that2 A “Grade C” violation is defined as “conduct const ituting (A) a federal,

state, or local offense punishable by a term of imp risonment of one year or less; or (B) a violation of any other condition of superv ision.” U.S.S.G. § 7B1.1(a)(3). -12- it’s not believable.” Rec. vol. III at 94-95. The district court did not abuse its discretion in drawing such a conclusion. As Mr. Turner points out, his offenses consisted entirely of Grade C violations, 2 the least serious of the three grades of supervise d release violations. However, a district court does have the discretion to revoke a defendant’s supervised release and sentence him to a term of imprisonment for a Grade C violation. See 18 U.S.C. § 3583(e)(3). The court may revoke a term of supervised release, and require th e defendant to serve in prison all or part of the term of supervised rel ease authorized by statute for the offense that resulted in such term of supervised release . . . if the court, pursuant to the Federal Rules o f Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant vi olated a condition of supervised release. Id. ; see also U.S.S.G. § 7B1.3(a)(2) (policy statement) (“Upon afinding of a Grade C violation, the court may (A) revoke probati on or supervised release; or (B) extend the term of probation or supervised rele ase and/or modify the conditions of supervision.”). Thus, while the dist rict court could have chosen to extend the term of Mr. Turner’s supervised release rather than sentencing him to prison time, the court was well within its discreti on to revoke the release despite the fact that the violations all fell within the Gr ade C category.-13-

We recognize that Mr. Turner’s twelve-month prison sentence does exceed the range suggested in the Sentencing Guidelines. See U.S.S.G. § 7B1.4(a) (policy statement) (recommending a sentence of thre e to nine months’ imprisonment for Grade C violations of supervised r elease committed by defendants with a criminal history category of I). However, his sentence is well within the statutory maximum of thirty-six months’ imprisonment. See 18 U.S.C. § 3583(e)(3). We have previously held that “the po licy statements regarding revocation in Chapter 7 of the U.S.S.G. are advisory rather than mandatory in
nature.” United States v. Lee , 957 F.2d 770, 773 (10th Cir. 1992); see also United States v. Brooks , 976 F.2d 1358, 1360 (10th Cir. 1992) (affirming a sentence exceeding the range suggested in U.S.S.G. § 7B1.4(a)). As in Lee and Brooks , the sentencing judge demonstrated awareness of th e range recommended in U.S.S.G. § 7B1.4(a), see Rec. vol. V, at 4 (Sentencing Tr., dated June 23, 2003), but chose to sentence Mr. Turner to a longertwelve-month term of imprisonment as a “result of the defendant’s ongoin g pattern of violations which precluded the probation office from effective supervision.” Id. at 5. Given the numerous violations committed by Mr. Turner, we fin d that the sentence imposed by the district court was reasonable. C. Appropriateness of the Occupational Restriction Mr. Turner’s new supervised release, to follow his twelve-month prison-14-

sentence, contains a special condition requiring hi m to “refrain from any form of self employment during the term of supervised relea se.” Rec. vol. I, doc. 115, at 3 (Judgment, dated July 1, 2003). He contends thatthe district court wrongfully imposed this serious occupational restriction, thatit is “unreasonable,”and, curiously, that it “will not prohibit him from enga ging in bank fraud.” Aplt’s Br.
at 21. “The district court generally enjoys broad discreti on in setting a condition of supervised release.” United States v. Erwin , 299 F.3d 1230, 1232 (10th Cir. 2002). We review the imposition of such conditions for abuse of discretion. Id. The sentencing court has the statutory authority to order, as a further condition of supervised release , to the extent that such condition– (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 355 3(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy stateme nts issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); any condition set forth as a discretionary conditio n of probation in section 3563(b)(1) through (b)(10) and (b)(12) thro ugh (b)(20), and any other condition it considers to be appropriate. 18 U.S.C. § 3583(d). Section 3563(b)(5) authorizes the court to order, as a condition of supervised release, that the defendant refrain, in the case of an individual, from engagin g in a specified-15-

occupation, business, or profession bearing a reaso nably direct relationship to the conduct constituting the offens e, or engage in such a specified occupation, business, or profession onl y to a stated degree or under stated circumstances. 18 U.S.C. § 3563(b)(5). Prior to imposing an occup ational restriction, the court must determine that: (1) a reasonably direct relationship existed betwee n the defendant’s occupation, business, or profession and the conductrelevant to the offense of conviction; and (2) imposition of such arestriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendan t will continue to engage in unlawful conduct similar to that for whic h the defendant was convicted. U.S.S.G. § 5F1.5(a). The plain language of the United States Code and th e Sentencing Guidelines clearly requires a connection between th e occupational restriction and the underlying offense for which the defendant was convicted. Mr. Turner pleaded guilty to defrauding three financial instit utions with which he held checking accounts through his roofing business. Af ter his initial sentencing, he failed to provide information about his business ac tivities to the probation officer in violation of the terms of his supervised release . Based on these connections, the district court acted well within its discretion when it concluded that Mr. Turner’s occupation as a self-employed roofer bears “a reasonably direct relationship” to his offense of bank fraud, as requ ired by 18 U.S.C. § 3583(d) and U.S.S.G. § 5F1.5(a). See United States v. Smith , 332 F.3d 455, 461 (7th Cir.-16-

2003) (holding that “[t]he connection between [defe ndant’s] employment as a truck driver and his crime of theft of interstate f reight” was sufficiently “obvious” for purposes of U.S.S.G. § 5F1.5(a)(1)); cf. Erwin , 299 F.3d at 1232-33 (holding that the requirement of U.S.S.G. § 5F1.5(a)(1) was not satisfied where the district court restricted defendant’s commercial fishing lic ense after he pleaded guilty to an unrelated possession of ammunition offense). Mr. Turner also argues that the district court fail ed to make findings regarding the necessity of the occupational restric tion. In United States v. Smith , although the Seventh Circuit held that the connecti on between commercial truck driving and the crime of conviction (the theft of t he very freight defendant was hired to transport) was “reasonably direct” for purposes of imposing an occupational restriction, it remanded the case in p art because the district court failed to make “a finding that the restriction was necessary to prevent [defendant] from engaging in the same conduct.” 332 F.3d at 46 1-62. We agree that such findings are important and encourage district court s to make express findings concerning the necessity of occupational restrictio ns. However, this case is easily distinguishable from Smith , as much of the Seventh Circuit’s concern in that case stemmed from the district court’s “reliance on fact ors unrelated to the offense of conviction,” id. , a concern indisputably not present here. Moreove r, in Smith , the district court imposed an occupational restriction of unspecified duration; in this-17-

case, the district court explicitly limited the dur ation of the occupational restriction to the period of supervised release. We hold, based on the facts of this case, that the district court provided an adequate basis for the restriction on self-employme nt. The court’s belief in the necessity of this restriction was reflected at the sentencing hearing, where the court stated in response to Mr. Turner’s objection to the occupational restriction, “[w]e are going to protect the public this time.” Rec. vol. 5, at 7. This statement, when considered alongside Mr. Turner’s failure to s ubmit to less restrictive attempts to monitor his business activities during his initial supervised release, leads us to conclude that the district court was wi thin its discretion to find that “imposition of such a restriction is reasonably nec essary to protect the public.” U.S.S.G. § 5F1.5(a)(2). See United States v. Choate , 101 F.3d 562, 566 (8th Cir. 1997) (upholding a prohibition on self-employment b ecause it “seems a reasonable way to protect the public” from defendan t’s business-related wire fraud). Contrary to Mr. Turner’s characterization of this i ssue, the restriction on self-employment will not necessarily prohibit him f rom earning a living as a roofer. He remains free to work for others, provid ed he does not continue to run his own roofing business. While we recognize that this restriction is significant, the district court determined that it is necessary to prevent Mr. Turner from-18-

continuing to engage in business-related bank fraud . We hold that both requirements of U.S.S.G. § 5F1.5(a) have been satis fied, and that the district court was, therefore, within its discretion in impo sing the restriction on selfemployment. D. Lack of Advance Notice of the Occupational Restr iction Mr. Turner also claims that the occupational restri ction was unreasonable because he did not receive advance notice of the re striction in the presentence report. He contends that the occupational restrict ion constitutes an upward departure from the Sentencing Guidelines and theref ore requires advance notice under Burns v. United States , 501 U.S. 129 (1991). See id. at 136 (“[T]he textual and contextual evidence of legislative intent indic ates that Congress did not intend district courts to depart from the Guideline sua sponte without first affording notice to the parties.”). The restriction on self-employment imposed on Mr. T urner is not an upward departure; rather, it is among the recommend ed conditions of supervised release set forth in the Sentencing Guidelines. See U.S.S.G. § 5F1.5. In that sense, this case is easily distinguishable from Burns , in which the court sentenced the defendant to a term of imprisonment exceeding t he maximum sentence reflected in Guidelines and the presentence report. See 501 U.S. at 132-35. This case is also distinguishable from United States v. Bartsma , 198 F.3d3 The defendant in Bartsmawas convicted of possession of a firearm by a

convicted felon, an offense having no direct nexus to the sex offender registration requirement. 198 F.3d at 1194. -19- 1191, 1199-1200 (10th Cir. 1999), in which we exten ded the reasoning of Burns to require notice prior to imposing a requirement t hat a defendant register as a sex-offender as a special condition of supervised r elease. Our limited holding in
Bartsmais evidenced by our narrow conclusion that “the Burns rationale applies when a district court is considering imposing a sexoffender registration requirement as a special condition of supervised re lease, and the condition is not on its face related to the offense charged.” 3 Id. at 1199-1200. As the First Circuit has recognized, “requiring registration as a sex offender is different, in type and kind, from any of the usual conditions att ached to supervised release.” United States v. Brown , 235 F.3d 2, 4 (1st Cir. 2000). We later noted th e limits of the Bartsmaholding and emphasized that “[b]y implication, pre sentence notice is not required for some other conditions of releas e–perhaps most conditions.” United States v. Barajas , 331 F.3d 1141, 1144 (10th Cir. 2003) (collecting cases); see also United States v. Mills , 959 F.2d 516, 518 (5th Cir. 1992) (“We do not believe it to be in the interest of justice . . . t o extend the notice requirements of
Burns to cases where the defendant’s term of confinementis not at stake. Requiring trial judges to give prior notice of thei r intent to impose an occupational restriction would only further encumbe r the lengthy sentencing-20-

process without adding anything to defendants’ exis ting procedural protections.”). In any event, Mr. Turner’s challenge must fail beca use he had constructive notice of the occupational restriction. As in Barajas , “the challenged condition [is] among the recommended conditions set forth in the Sentencing Guidelines, and the factual predicates for [its] imposition wer e fully addressed in the PSR.” 331 F.3d at 1144; see also Brown , 235 F.3d at 4 (“[T]he guidelines contemplate (and give the appellant constructive notice) that t he sentencing court will tailor supervised release conditions to fit the circumstan ces of the offense and the characteristics of the offender.”). “Consequently, a defendant rarely, if ever, will be able to claim unfair surprise when the sentencin g court establishes the conditions of supervised release.” Id. Both 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(e)(4) authorize the imposition of an occupational restriction as a cond ition of supervised release. As such, the challenged restriction is “among the disc retionary conditions of supervised release to which all defendants are alerted .” Barajas , 331 F.3d at 1145 (quoting United States v. Lopez , 258 F.3d 1053, 1056 (9th Cir.2001)) (emphasis added by Barajas ). We therefore conclude that the district court d id not wrongfully deprive Mr. Turner of notice of the restriction on selfemployment.-21- III. CONCLUSION We AFFIRM the judgment of the district court.

Entered for the Court,

Robert H. Henry Circuit Judge