USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1743
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID ALLAN SMITH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Cyr, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Donald R. Furman, Jr. for appellant.
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F. Mark Terison, Assistant United States Attorney, with whom Jay
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P. McCloskey, United States Attorney, and James L. McCarthy, Assistant
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United States Attorney, were on brief for appellee.
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March 6, 1997
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Per Curiam. Defendant-appellant David Smith appeals
Per Curiam.
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the sentence imposed following his conviction under 18 U.S.C.
922(g)(1) (felon in possession of firearm) and 18 U.S.C.
924(a)(2) (prescribing ten-year maximum sentence).1
First, Smith challenges a two-level enhancement for
obstruction of justice, see U.S.S.G 3C1.1 (Nov. 1995), on the
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ground that the district court ruling that he attempted to suborn
perjury was not supported by the requisite subsidiary findings of
fact, but relied instead only on the facts detailed in the
unchallenged presentence report (PSR). Quite the contrary,
however, the district court's explicit adoption of the findings
proposed in the PSR left no doubt whatever, either as to the
grounds relied upon or their adequacy. See United States v.
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Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (sentencing court need
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not set out subsidiary findings provided its ultimate findings
and grounds plainly appear in record). Nor were the statements
upon which the district court findings were based susceptible to
innocent interpretation. See United States v. Clark, 84 F.3d
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506, 509-10 (1st Cir.), cert. denied, 117 S. Ct. 272 (1996).
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Thus, Smith's competing interpretations did not render ambiguous
the statement given by the witness whose testimony he sought to
suborn. See id. at 510.
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Second, Smith challenges the special condition imposed
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1Although Smith failed to assert his claims below, thereby
implicating "plain error" review, see United States v. Sanchez-
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Barreto, 93 F.3d 17, 24 (1st Cir. 1996), cert. denied, 117 S. Ct.
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711 (1997), we discern no merit even under a de novo standard of
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review.
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by the district court, prohibiting his use of alcohol during the
three-year term of supervision following his release from prison.
See U.S.S.G. 5D1.3(b) (sentencing judge may impose special
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conditions reasonably related to nature of offense and personal
history of defendant). Smith contends that the prohibition
against using alcohol constituted an abuse of discretion, see
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United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.) (per curiam),
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cert. denied, 115 S. Ct. 1987 (1995); see also supra n.1, as
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there was no evidence linking alcohol to the crime of conviction.
Once again we must disagree.
There was abundant justification for imposing the
special condition. See id. (no abuse of discretion in requiring
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defendant to abstain from using and possessing alcohol in light
of personal history and continuing alcohol abuse). Smith conced-
ed that he has an "abjectly appalling record of driving vehicles
while under the influence of alcohol" and admitted violating a
condition of his bail by consuming alcohol within twenty-four
hours before entering his guilty plea in this case. Thus, the
appropriateness of the special condition imposed by the district
court is beyond question. Affirmed.
Affirmed.
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