US v. Alexis Starkes, No. 09-5051 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5051 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEXIS STARKES, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:09-cr-00077-JBF-FBS-1) Submitted: September 30, 2010 Decided: November 3, 2010 Before MOTZ, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven P. Hanna, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Joseph E. DePadilla, Assistant United States Attorney, Daniel F. Izzo, Third Year Law Student, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alexis imposing a Starkes special appeals condition the on district her court s three-year order probation prohibiting her from employment in the human resources industry or in any other position involving contact with labor contracts. We affirm. Starkes served as the human resources manager for the Crowne Plaza Williamsburg (Virginia). In her role, Starkes was familiar for with previously the had H2-B applied visa program for such visas foreign to workers secure and temporary workers for the Crowne Plaza. In Fall 2007, Starkes became acquainted with Dzmitry Krasautsau, a member of a criminal organization. Krasautsau discussed having Starkes submit fraudulent H2-B visas to help foreign workers enter the United States. For the program to operate effectively, Krasautsau required labor service contracts with hotels that inflated the number of temporary workers the hotels required. To aid in this scheme, Starkes signed two fraudulent labor service agreements with Krasautsau s companies. The first provided that the Crowne Plaza needed 45 temporary workers supplied by Valet Services from April 1, 2008, to January 10, 2009. The second contract stated that the Crowne Plaza temporary needed 40 workers supplied by Solutions from November 1, 2008, to September 1, 2009. 2 Janitorial Because the Crowne Plaza preferred to hire temporary workers through multiple vendors, Starkes aided Krasautsau in creating a fictional company to bid against Krasautsau s two real companies. Krasautsau eventually mailed the H2-B visa materials and the labor services contracts to a co-conspirator in Florida. In exchange for aiding Krasautsau, Starkes received a $200 gift card. She was scheduled to receive between 10-15 cents per man hour for each Krasautsau employee working at the Crowne Plaza, but the scheme was discovered before Starkes profited from this arrangement. Based filed against on the Starkes foregoing, in the a criminal Eastern information District of was Virginia, charging her with one count of mail fraud, in violation of 18 U.S.C. § 1341 (2006) and 18 U.S.C. § 2 (2006). Starkes waived her right to an indictment, agreed to a statement of facts, and pleaded guilty district without court benefit accepted of Starkes s a plea plea agreement. and conducted The a sentencing hearing. At sentencing, the district court adopted the Presentence Report, which found that Starkes s offense level was 5 and her guidelines district criminal range court of history zero sentenced to category six Starkes 3 I, yielding months to a an advisory imprisonment. term of probation The for three years with the special condition that she was prohibited from engaging in any aspect of the human resources business or any similar occupation where [she] would have access to labor contracts. * Starkes noted a timely appeal. We review the imposition of a special condition of probation or supervised release for abuse of discretion. United States 2003). v. Starkes, Dotson, however, 324 F.3d failed 256, to 259-60 object to (4th the sentencing, so our review is for plain error. Cir. condition In order to satisfy the plain error standard, Starkes must show: error was made; (2) the error affects substantial rights. U.S. 725, 732 (1993). is plain; and at (3) (1) an the error See United States v. Olano, 507 The decision to correct the error lies within our discretion, and we exercises that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. alterations, and internal quotation Id. at 732 (citations, marks omitted). Starkes bears the burden of satisfying each element of the plain error standard. United States v. Vonn, 535 U.S. 55, 59 (2002). * The Government misinterprets the district court s order as applying only to human resources positions that involve contact with labor contracts. The district court s order, however, makes clear that Starkes is prohibited from any human resources job as well as any other job that permits her access to labor contracts. 4 The relevant sentencing statute provides that a district court may impose as a special condition a requirement that the defendant: refrain, in the case of an individual, from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the offense, or engage in such a specified occupation, business, or profession only to a stated degree or under stated circumstances. 18 U.S.C. Guidelines § 3563(b)(5) Manual (2006). States Sentencing implements § 5F1.5 United this statutory authorization by directing that such a condition is appropriate only if the district court determines: (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. If these standards are satisfied, the district court is further instructed to impose the condition for the minimum time and to the minimum extent necessary to protect the public. USSG § 5F1.5(b). In this case, the district court did not commit plain error by imposing the special condition of probation prohibiting Starkes from employment in the field of human resources or in any other position allowing access to labor contracts. 5 First, there is a reasonable relationship between the occupation and the offense it was Starkes s role as a human resources manager that enabled her to commit the offense. routinely uphold employment In addition, courts restrictions, including those covering an industry, when the employment and the underlying criminal offense are closely tied. 445 F.3d 713, 717-19 (3d See United States v. Smith, Cir. 2006) (upholding employment restriction barring defendant from working for a law firm or legal entity given lengthy history of preparing fraudulent documents); United States v. Carlson, 406 F.3d 529, 532 (8th Cir. 2005) (affirming restriction on defendant working in the medical field after defendant used his position as a physician s assistant to occasions); 1996) obtain United (affirming fraudulent States v. restriction prescriptions Choate, on 101 on F.3d hundreds 562 self-employment for (8th of Cir. defendant who ran a series of sham businesses and demonstrated that he is given to excesses of salesmanship that tend to creep up in an HR business after business ). In this case, it was Starkes s position as manager that permitted and indeed facilitated the fraud. The district court thus did not plainly err in limiting Starkes s ability to seek employment during her probation. in the field of human resources See also United States v. Cardine, 192 Fed. App x 241 (4th Cir. 2006) (unpublished) (approving district 6 court s imposition of condition barring defendant from seeking employment in the equestrian industry when defendant s prior employment in the equestrian industry allowed him to accomplish his crime ). Although the district court might well have spelled out in greater detail the findings that are implicit in its imposition of the occupation restriction, its failure to make such findings does not invalidate the restriction because the condition imposed otherwise satisfies the requirements of § 3563(b)(5). Carlson, 406 F.3d at 632. Cf. United States v. Smith, 332 F.3d 455, 461 (7th Cir. 2003) (the reasonably direct relationship between defendant s occupation as a commercial truck driver and his crime of theft of interstate freight is so obvious that we will not comment on it further ). Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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