Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER 3:92-CR-404-H. JUDGE Barefoot Sanders
Before Goldberg, Garwood and Wiener, Circuit Judges.
Defendant-appellant, Ronald Voda, Sr. (Voda), was sentenced to a term of 5 years' probation and a $3,000 fine, payable $60 a month, on his conviction, pursuant to his guilty plea, of one count of negligent discharge of a pollutant through a point source into navigable water in violation of a federal permit, contrary to 33 U.S.C. § 1319(c)(1)(A), a misdemeanor. Voda appeals, challenging only certain aspects of his sentence, namely the fine and the following two conditions of his probation, viz : (1) that he surrender to the Mansfield Law Enforcement Center (Mansfield) on June 2, 1993, to serve sixty calendar days; and, (2) that he not possess a firearm during the probation. Concluding that the district court erred in imposing these two conditions, we vacate Voda's sentence and remand for resentencing.
Facts and Proceedings Below
Voda owned and operated Voda Petroleum, now defunct, an oil recycling facility in White Oak, Texas. On February 10, 1989, special agents of the Environmental Protection Agency (EPA) sampled effluent discharging from Voda's plant. Test results on three of the four samples taken revealed that more oil and grease discharged into the water system than Voda's federal permit allowed. Based on these test results, Voda pleaded guilty to one count of negligent discharge of a pollutant.
The Presentence Investigation Report (PSR) reflects that Voda has no prior conviction and that Voda and his wife have a negative net worth of $19,555.97 and a negative monthly cash flow of $503.75. The PSR does not indicate that Voda has any prospects for increasing his cash flow or net worth over the next several years in his job as a high school chemistry teacher.*fn1 The United States did not challenge the PSR's recitations concerning Voda's financial condition.
The PSR does not indicate that Voda had any history involving or being prone to violence or misuse of firearms. Voda likes to hunt and owns several firearms that he uses for recreational hunting.
As a result of Voda's guilty plea, he was sentenced to a $3,000 fine and 5 years' probation subject to numerous conditions. Four of the conditions are: (1) that Voda surrender to Mansfield on June 2, 1993, to serve 60 calendar days; (2) that he reside at the County Rehabilitation Center, 313 Ferrell Place, Tyler, Texas, for a period of 120 days; (3) that he shall not possess a firearm during his probation; and (4) that he pay the $3,000 fine at a rate of $60 per month beginning 60 days after his release from Mansfield. Mansfield is a local jail housing, among others, offenders awaiting trial on a range of offenses including violent felonies.
After the sentence was imposed, Voda filed a Motion to Correct Sentence pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 35(c), which was denied. Voda appeals challenging the fine, the designation of Mansfield as the place to serve the sixty days, and prohibition of firearms possession.
I. Designating Place of Confinement
Voda contends that, under 18 U.S.C. § 3563(11), the district court lacked the authority to designate the place of his confinement because the statute requires that the Bureau of Prisons designate the place of confinement once the district court imposes sentence for a specified period of time.*fn2 Thus, Voda contends that the district court erred in sentencing him to serve time at Mansfield.*fn3
As a condition of probation, 18 U.S.C. § 3563 (b)(11) provides that a convict may be required to "remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation." 18 U.S.C. § 3563(b)(11) (West Supp. 1993). See U.S.S.G. § 5C1.1(c)(3). The statute's plain ...