O'Neal

MEMORANDUM *

Defendant Michael O’Neal, a.k.a. Maxie Moore, pleaded guilty to social security fraud, false representation of a social security number, and giving a false statement to a government official. The district court sentenced him to 71 months in prison and imposed three years of supervised release. Defendant appeals his sentence.

A. Upward Departure

Defendant first argues that the district court abused its discretion when it departed upward one criminal history category pursuant to U.S.S.G. § 4A1.3. We are not persuaded.

In addition to applying for the federally-insured home loan that is the subject of the false statement offense, Defendant fraudulently obtained a second mortgage on his home, claiming to be employed by Slayden Construction. He supported that mortgage with fraudulent documents similar to those supporting the federal housing loan application. This offense is distinct from, and additional to, those charged in the indictment. Defendant also made a third mortgage application which contained several falsehoods, including false employment and false monthly income. This conduct, too, was uncharged in the indictment. The district court properly considered this…

Dissenting in part.

I respectfully dissent with respect to the supervised release term that restricts O’Neal’s contact with his daughter. Such a restriction unduly treads on his fundamental right as a parent. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981). O’Neal’s conviction for sexual misconduct occurred more than seven years ago; he served his sentence. Indeed, the district court in Oregon specifically excepted his daughter from any supervisory restrictions as a consequence of that conviction. Absent compliance with the supervised release statute, the wholly-unrelated fraud conviction should not serve as a springboard for further restrictions. Although *654 the district court stated that it was not considering other instances of sexual misconduct, it adopted the recommendations in the presentence report which was predicated on all of the past conduct. There is no evidence that O’Neal’s child has been abused or is at imminent risk of abuse. Without further findings or foundation, it cannot be said that this condition “involves no greater deprivation of liberty than is reasonably necessary .... ” 18 U.S.C. § 3583 (d)(2). I…