Community Service Condition of Probation Affirmed

U.S. v. Middagh, 2010 WL 487174 (2/12/10) (Published) - The 10th affirms a probation condition of 240 hours of community service for accepting social security benefits that were a deceased person's. On the good news side, the 10th considered preserved the challenge to the court's failure to explain its sentence because when the defense attorney started to explain his objection to the sentence, the court cut him off midsentence and told him: "the matter is done," thus affording the defense no opportunity to register a procedural complaint.

But on the merits, the 10th was unsympathetic. The Rule 32 requirement that the court rule on a dispute applied only to factual disputes, not to the question whether the community-service condition was arbitrary. The court's general reference to § 3553(a) and the statement that community service would be better than imposing a fine on an indigent person, although "maybe not expansive," were sufficient to meet the court's obligation to explain the sentence. The Tenth added: "what would have required an explanation would have been the sentence defense counsel requested of 40 hours of community service." So, of course, the 10th found the 240-hour sentence just peachy keen, given the $130,000 stolen over 23 years, the fact that the defendant's wife's inheritance paid all the restitution off, not him, and all he lost from being on probation was the loss of the right to hunt.