[12]. 18 U.S.C. § 3563 (Conditions of probation); U.S.S.G. §§ 8D1.3 (Conditions of Probation - Organizations), 8D1.4 (Recommended Conditions of Probation – Organizations); 18 U.S.C. § 3563(a) (mandatory and discretionary conditions of probation).[13].

I say no, and here is why: On the search condition, the Court refused to rule out "unannounced and random searches where appropriate." The problem with this: the statutes -- 18 U.S.C. 3583(d) and 18 U.S.C. 3563(23)-- do not allow it. In plain terms, search conditions: (1) must include a reasonable suspicion requirement; and (2) may only be imposed in cases involving a defendant who has to register as a sex offender.

There should have been a concession of error in this case, like there was in this case. A few final thoughts on an alcohol ban: (1) the statute permits a limitation on "excessive use of alcohol," it does not allow a district court to impose a complete ban on alcohol (see 18 U.S.C. 3563(b)(7) & USSG 5D1.3(c)(7)); (2) a lot of products contain alcohol (even non-alcoholic beer contains alcohol); and (3) the 18th Amendment was repealed over 80 years ago.

The district court granted the motion. But the 10th ruled that, although there are many conditions of probation that can be modified under 18 USC § 3563(c), restitution is not one of them. There are specific statutory provisions that lay out when restitution can be changed, e.g. when the victim recovers losses in a civil proceeding, and no provision to change just because the district court goofed originally.

The defendant had objected to the employer notification requirement, and the district court imposed it nonetheless. The COA reversed, finding that the local policy was contrary to 18 USC 3563(b) and USSG 5F1.3, which only allow imposition of occupational restrictions as are "reasonably necessary," and limits them to what is necessary to protect the public. In addition, the judge failed to make the findings required by USSG 5F1.5.US Sierra-Castillo, 2005 WL 1023341 (10th Cir. 5/3/05): In this aggravated reentry case, the judge had denied the defendant a departure based on family circumstances because the circumstances were not outside the heartland "in this part of the jurisdiction" (emphasis added).