United States of America v. Curtis W. Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3481
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
C URTIS W. S MITH ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 991—George W. Lindberg, Judge.
____________
A RGUED A PRIL 16, 2003—D ECIDED J UNE 10, 2003
____________
Before P OSNER , C OFFEY and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. Curtis Smith is a truck driver
with a two million mile accident-free driving record. Unfor-
tunately, his record for theft-free driving is considerably
less impressive. Smith pled guilty to one count of theft of
interstate freight in violation of 18 U.S.C. § 659. He now
raises several challenges to his sentence, and we vacate
and remand for re-sentencing.
I.
In early November 2001, Hirschbach Motor Lines hired
Curtis Smith, a licensed commercial truck driver, to trans-

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2 No. 02-3481
port a load of toys from a Hasbro toy distribution center
in Massachusetts to a Wal-Mart store in Iowa. On Novem-
ber 2, 2001, Smith picked up more than $64,000 worth of
toys from Hasbro Distribution. Because the value of the
load and the tractor-trailer is relevant to Smith’s sentenc-
ing, we add that the toys were being transported in a
Hirschbach-owned semi-trailer, which was valued at
approximately $21,000. Smith hauled the trailer with a
semi-tractor also owned by Hirschbach, and valued at
approximately $26,000. The cargo never arrived at its
planned destination, however, because Smith pulled off
the road at various points between Massachusetts and
Iowa and sold toys off the back of the truck. He used the
money from this ill-conceived venture to buy crack cocaine
for personal consumption. He was apprehended in Bridge-
view, Illinois on November 20, 2001, after a local resident
called police to report that a man was selling toys from the
back of a truck at 1:30 in the morning. At the time of
his arrest, Smith was more than two weeks late for the
scheduled delivery at the Iowa Wal-Mart. Hirschbach had
tried to contact him along the way using the global position-
ing and text-messaging system installed in the truck, but
Smith had disabled the system shortly after departing
the Hasbro Distribution center.
Smith was charged with one count of theft of inter-
state freight and entered a blind guilty plea after he was
unable to agree with the government on the value of the
theft loss. The court determined that the amount of the
loss should include the value of the tractor-trailer as well
as the contents, a total of approximately $111,438. The
court accepted the government’s recommendations to de-
part upward three levels because Smith’s criminal history
category of VI under-represented his criminal past and
the likelihood for recidivism. The court enhanced Smith’s
sentence an additional two levels because the theft was
facilitated by special skill and training, namely Smith’s

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No. 02-3481 3
skill in driving commercial-sized trucks. Smith was credited
with a two-level reduction in his sentence for acceptance
of responsibility. The court imposed a special condition on
Smith’s period of supervised release, ordering him to re-
linquish his commercial driver’s license and refrain from
being employed as a truck driver. Finally, Smith was
ordered to pay $51,245 in restitution, representing the
value of the toys missing at the time the truck was recov-
ered by law enforcement. All of this added up to 63 months
in prison and three years of supervised release, plus res-
titution. Smith appeals.
II.
On appeal, Smith contends that the district court erred in
including the value of the tractor/trailer in the amount of
the theft loss, that the court was obliged to grant a three-
level rather than a two-level reduction for acceptance of
responsibility under the circumstances, that the special
condition of barring him from driving a truck was an
excessive deprivation of liberty, and that the court erred
in finding that truck driving is a special skill that sig-
nificantly facilitated the crime.
A.
Smith complains that the court erred in including the
value of the tractor/trailer (for ease, we will call this the
truck) in the amount of the loss because, he maintains, the
evidence was insufficient to demonstrate an intent to
steal the truck. Although Smith admitted that he in-
tended to steal the contents of the truck, he made no
such admission regarding the truck itself. He points to
the fact that his own truck, a newer model, was being
repaired at Hirschbach’s facility while he was driving a
Hirschbach loaner truck. Because his own truck was

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4 No. 02-3481
essentially serving as collateral for Hirschbach’s truck,
he contends it is counter-intuitive to conclude that he
intended to steal Hirschbach’s truck. The district court’s
determination of the amount of loss is a question of fact
that we review for clear error, although the application of
the sentencing guidelines is a legal question that we re-
view de novo. United States v. Mei, 315 F.3d 788, 792
(7th Cir. 2003); United States v. Rosalez-Cortez, 19 F.3d
1210, 1218 (7th Cir. 1994).
Although it is true that a rational person is unlikely
to steal an older, loaner vehicle while the owner of the
loaner is repairing his new vehicle, the court was not
obliged to find that Smith was acting as a rational person
would act. Smith, after all, was caught in the dead of night
selling hot Mr. Potato Heads out of the back of a truck in
order to support his crack cocaine habit. Moreover, Smith
was more than two weeks late in delivering the truck
and the goods to their intended destination, and he had
disabled the truck’s global positioning device. Having
sold the contents of the truck, it was just as counter-
intuitive to assume that he would return the empty truck
to his employer with no explanation about the missing
load of toys. Smith also fails to mention that he had only
$4000 in equity in the truck he left behind for repairs
at Hirschbach, considerably less than the estimated
$47,000 market value of Hirschbach’s truck. We cannot
find that the district court erred in concluding that
Smith intended to steal the truck as well as the contents.
The amount of the loss was properly calculated to include
the truck as well as the goods.
B.
The court imposed an enhancement under section 3B1.3
for the use of a special skill:

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No. 02-3481 5
If the defendant . . . used a special skill in a manner
that significantly facilitated the commission or con-
cealment of the offense, increase by 2 levels.
U.S.S. G. § 3B1.3. The commentary to the guideline
explains that a “special skill” is a skill not possessed by
members of the general public and usually requiring
substantial education, training or licensing. “Examples
would include pilots, lawyers, doctors, accountants, chem-
ists, and demolition experts.” U.S.S.G. § 3B1.3, Commen-
tary at ¶ 3. The court imposed this enhancement because
Smith’s thefts and the delay in detecting the thefts were
facilitated by Smith’s training and licensing as an over-the-
road truck driver. Sentencing Tr. at 29. Smith now argues
that truck driving, although admittedly more difficult than
driving a sedan, is not a special skill. He maintains that his
crime could have been committed by anyone able to
open the back of a trailer, remove toys and hawk them on
the street. He also urges us to find that, even if truck
driving is a special skill, he did not use that skill in a
significant way to facilitate his crime.
The government argues that Smith waived this objection,
or at best forfeited it, and that we should review the
enhancement for plain error. We believe Smith ade-
quately preserved his objection by raising it in a pro se
letter to the court, and then indicating at the sentencing
hearing through counsel that he had no more objections
other than the ones already argued. Although this was
not an ideal method for preserving an objection, we be-
lieve both the court and the government were aware
that Smith contested this point. See, e.g., United States v.
Sumner, 265 F.3d 532, 538 (7th Cir. 2001) (written objec-
tion to PSR and argument at sentencing hearing suffi-
cient to preserve issue for appeal, even in absence of
objection to the sufficiency of the court’s findings). We
therefore review the district court’s factual findings under
section 3B1.3 for clear error, and we determine de novo the

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6 No. 02-3481
legal meaning of “special skill.” United States v. Lewis, 41
F.3d 1209, 1214 (7th Cir. 1994). As Smith concedes, we
have previously held that the skills necessary to operate
an eighteen-wheeler justify enhancement under this
section. Lewis, 41 F.3d at 1214. “An over-the-road com-
mercially-employed truck driver is required to have a
special operator’s license. Members of the general public
would have more than a little trouble successfully maneu-
vering a loaded eighteen-wheeler along roads and through
parking lots.” Id. Smith offers no real reason why we
should reconsider that holding now. See also United
States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996) (driv-
ing an eighteen-wheeler without any reported mishap
over several years is a skill well beyond that possessed
by the general public and constitutes a special skill under
the guidelines).
The only question that remains then is whether Smith’s
special skill in operating an eighteen-wheeler signifi-
cantly facilitated the commission or concealment of the
crime. We cannot find that the district court clearly erred
in answering this question in the affirmative. First, by
Smith’s own admission, his extraordinary skill in driving
a truck, including his record of two million miles of
accident-free driving, gave him access to the load of toys.
As Smith himself explained to the court:
I got 2 million miles accident-free—that’s more than
most people in here ever drive in their life—in a tractor
trailer. That’s why I get hired. That’s why I can go
right out the door and get hired now with a felony—
with ten felonies under my belt. Because they look
at my driving record. They don’t look at the things I
did . . . when I didn’t drive. They look at how did I
get from Point A to Point B. Did I damage a load? Did
I tear up a car? Did I kill anybody on the route?
That’s what they’re worried about. I’m the best driver
you ever seen in your life for a tractor trailer.

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No. 02-3481 7
Sentencing Tr. at 21. Smith’s tragic and telling speech to
the court was intended to explain that his driving skills
were not related to his crimes, but rather that his drug
addiction led to his propensity for theft. But in his ex-
planation, he proved the district court’s point. His special
driving skills allowed him access to valuable cargo even
though he had, by his own admission, ten felonies under
his belt. His skills allowed him to drive the load away
from its owner, disable the tracking device to conceal his
whereabouts along the route, and pull off at selected
stops to sell the goods he was hired to deliver. Without
his special skills, he would not have had the access or the
means to steal these goods and transport them between
states. That is enough to justify the enhancement.
C.
Smith next challenges the court’s two-level reduction for
acceptance of responsibility, maintaining that he was
instead entitled under the Guidelines to receive a three-
level reduction. Normally we review a district court’s
determination concerning a defendant’s acceptance of
responsibility for clear error. United States v. Rosalez-
Cortez, 19 F.3d 1210, 1218 (7th Cir. 1994). Here, however,
Smith inadvertently failed to raise this issue before the
trial court and therefore we consider the issue forfeited
and review it for plain error only. United States v. Olano,
507 U.S. 725, 732-34 (1993); United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000). Section 3E1.1(a) of the
Sentencing Guidelines directs the district court to de-
crease the offense level by two levels if the defendant
clearly demonstrates acceptance of responsibility for his
offense. If a defendant who qualifies under subsection
(a) has an offense level of 16 or greater prior to the applica-
tion of the two-level decrease, the court will grant an
additional one-level decrease if:

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8 No. 02-3481
the defendant has assisted authorities in the investiga-
tion or prosecution of his own misconduct by taking
one or more of the following steps:
(1) timely providing complete information to the
government concerning his own involvement
in the offense; or
(2) timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and
permitting the court to allocate its resources
efficiently[.]
U.S.S.G. § 3E1.1(b).
The parties agree that Smith notified the government
and the court of his intention to plead guilty at his first
court appearance subsequent to arraignment and before
a trial date had been set. The probation officer preparing
Smith’s PSR concluded that he had timely provided infor-
mation to the government concerning his own involve-
ment in the offense and that he had timely notified authori-
ties of his intention to plead guilty. The probation officer
inadvertently failed to credit Smith with the third point
and neither the government nor counsel for Smith noticed
the error at the time of sentencing. The government now
concedes that Smith was entitled to the third point under
section 3E1.1(b), and also concedes that the record does
not clearly indicate that the error did not affect the sen-
tence imposed. United States v. Garrett, 90 F.3d 210, 213
(7th Cir. 1996) (sentencing judge may not deny a third
level decrease if stated conditions are met because guide-
line language is mandatory, not permissive). Once we
have determined that the district court misapplied the
Guidelines, a remand is appropriate unless we conclude,
on the record as a whole, that the error was harmless. See
Williams v. United States, 503 U.S. 193, 203 (1992). An
error is harmless if it did not affect the district court’s

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No. 02-3481 9
selection of the sentence imposed. Id. We agree that the
record here does not allow us to conclude that the error
was harmless, and we therefore vacate Smith’s sentence
and remand for re-sentencing.
D.
On remand, the court should also clarify one of the
special conditions of supervised release imposed on Smith.
The government requested that Smith be precluded from
employment as a commercial truck driver during the peri-
od of supervised release. The government sought this
limitation for two reasons. First, Smith repeatedly abused
his skills as a commercial truck driver to conduct criminal
activities. Apparently, this was not the first time he
absconded with a truck full of goods. Second, the govern-
ment hoped this restriction would help Smith avoid fall-
ing back into his drug abuse habits because he would not
have such a ready source of cash. In response to this
request, the court ordered as a condition of supervised
release that Smith relinquish his commercial driver’s
license, that he not obtain a new one and that he “not
seek or obtain employment as a driver of a motor truck
engaged in the delivery of freight or other goods.” Sentenc-
ing Tr. at 33. In the Judgment in a Criminal Case issued
two weeks later, the court listed the special condition
thusly:
The defendant is also ordered to surrender his CDL
driver’s license. The defendant is prohibited for ever
[sic] obtaining a CDL driver’s license. The defendant
is prohibited from ever being employed as a truck
driver.
R. 31 at 4. Smith complains that these restrictions are
unrelated to the offense of conviction and overbroad in
scope and duration. The restriction prohibits him from

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10 No. 02-3481
driving even a garbage truck or his own truck for his own
business, for example.
We review for abuse of discretion the district court’s
imposition of a special condition of supervised release.
United States v. Angle, 234 F.3d 326, 346 (7th Cir. 2000),
cert. denied, 533 U.S. 932 (2001). A district court may
impose special conditions of supervised release that it
deems appropriate so long as the conditions are reason-
ably related to (1) the nature and circumstances of the
offense and the history and characteristics of the defen-
dant; (2) the need for the sentence imposed to afford
adequate deterrence to criminal conduct; (3) the need to
protect the public from further crimes of the defendant;
and (4) the need to provide the defendant with needed
educational or vocational training, medical care or other
correctional treatment in the most effective manner.
U.S.S.G. § 5D1.3(b); Angle, 234 F.3d at 346; United States
v. Schave, 186 F.3d 839, 841 (7th Cir. 1999). Moreover, the
conditions must involve no greater deprivation of liberty
than is reasonably necessary to achieve these goals and
must be consistent with any pertinent policy statements
issued by the Sentencing Commission. U.S.S.G. § 5D1.3(b);
Angle, 234 F.3d at 346; Schave, 186 F.3d at 841. The
condition imposed here was specifically authorized by
section 5F1.5 of the Sentencing Guidelines:
(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 be-
tween the defendant’s occupation, business, or
profession and the conduct relevant to the
offense of conviction; and

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No. 02-3481 11
(2) imposition of such a restriction is reasonably
necessary to protect the public because there
is reason to believe that, absent such restric-
tion, 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 proba-
tion 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.
U.S.S.G. § 5F1.5.
In imposing this special condition, the court commented,
“The court is well aware that this deprives you of your
customary livelihood.” Sentencing Tr. at 33. The court
was nonetheless convinced the restriction was necessary.
Having previously commented that there was a “virtual
certainty that [Smith] will continue to commit crimes
until [he] die[s],” and that the purpose of the sentence
was to keep Smith “away from society for the longest
possible time under the law,” the court found further
reasons to impose the condition. Sentencing Tr. at 29. In
particular, the court noted that Smith was a danger on
the road because of his admitted use of crack cocaine
and because he had suffered two strokes. Sentencing Tr.
at 33.
The connection between Smith’s employment as a com-
mercial truck driver and his crime of theft of interstate
freight (the very freight he was hired to transport) is so
obvious that we will not comment on it further. Suffice it
to say that “a reasonably direct relationship existed be-
tween the defendant’s occupation . . . and the conduct
relevant to the offense of conviction.” U.S.S.G. § 5F1.5. As
to the remaining factors under section 5F1.5, however,

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12 No. 02-3481
the district court did not make any express findings. The
absence of a finding that the restriction was necessary to
prevent Smith from engaging in the same conduct is
troubling in light of the district court’s seeming reliance
on factors unrelated to the offense of conviction. For
example, the court seemed most concerned that Smith
was a danger on the road not because he was a thief but
because he may be driving under the influence of drugs
or because his strokes may have adversely affected his
ability to drive safely. The record is devoid of any evi-
dence that Smith drove under the influence or that his
strokes affected his driving ability. In any case, he was
not charged with driving under the influence; he was
charged with theft of interstate freight. The guideline
requires the court to find that the employment restric-
tion is necessary to keep the defendant from engaging
in criminal conduct similar to that for which he was
convicted. The government argued that this was the
appropriate reason to restrict Smith’s access to trucks,
citing other instances when Smith committed thefts
related to his employment. The court may have accepted
and relied upon the government’s argument, but the rec-
ord is unclear on this point.
Moreover, the record is unclear regarding the length of
time the restriction is in effect and the necessity for the
duration of the restriction. The written judgment specifies
that Smith is “prohibited from ever being employed as a
truck driver” and that the “defendant is prohibited for
ever [sic] obtaining a CDL driver’s license.” R. 31 at 4. The
government concedes that the district court’s phrasing
was ambiguous but maintains that in reading the record
as a whole, the court meant to apply the special conditions
only to the term of supervised release. The court should
clarify this point on remand, and should also make ap-
propriate findings regarding the necessity for the dura-
tion and scope of any employment restriction. We are not,

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No. 02-3481 13
by any means, finding that a reasonably defined restric-
tion could not be supported, but rather only that the record
is currently inadequate to support a restriction of inde-
terminate length that may have been based on factors
outside those approved by the guidelines.
V ACATED AND R EMANDED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-10-03

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