United States v. Kemp, 705 F. App'x 741

Christopher Kemp pled guilty to escaping from custody (18 U.S.C. § 751) and, while awaiting sentencing, assaulted a correctional officer with a makeshift knife.
At sentencing the district court denied Kemp an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1 because of the postconviction assault.
Kemp also challenged a warrantless-search condition of supervised release and sought clarification/modification of the written standard conditions imposed at sentencing versus the District of Kansas’s standing order.
After the sentencing at issue, Kemp was convicted of possession of contraband in prison (the makeshift knife) in a separate case; that later judgment included a different set of standard supervised-release conditions tracking the District’s standing order.
The Tenth Circuit considered (1) whether the district court erred by relying on unrelated postconviction conduct to deny acceptance-of-responsibility, (2) the validity of the warrantless-search condition, and (3) whether the supervised-release conditions should be modified to match the District’s standing order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court may consider postconviction, presentencing criminal conduct in denying § 3E1.1 reduction	Kemp argued the assault was unrelated to the escape and thus should not negate acceptance	District court relied on postconviction assault as indicia of lack of contrition	Court affirmed: postconviction criminal conduct (even if unrelated) may be considered when denying § 3E1.1 (Prince controls)
Whether warrantless-search condition of supervised release is invalid because Kemp is not a sex-offender registrant	Kemp argued he is not required to register and so the search condition was improper	Government relied on Tenth Circuit precedent upholding such conditions	Court affirmed: Flaugher forecloses Kemp’s challenge; condition may stand
Whether supervised-release conditions should be modified to match District of Kansas standard conditions	Kemp sought modification to mirror current standing order to avoid confusion between two judgments	Government did not oppose matching the current standing order absent good cause	Court remanded: district court should modify conditions to reflect Standing Order No. 16-2 unless good cause to deviate
Whether panel should overrule prior circuit precedent (Prince)	Kemp implicitly sought different rule	Government and court relied on stare decisis; no en banc or Supreme Court authority to overrule	Court declined to overrule Prince; one panel cannot overturn another panel’s precedent

United States v. Prince, 204 F.3d 1021 (10th Cir. 2000) (allows consideration of postindictment criminal conduct unrelated to the conviction when denying § 3E1.1 credit)
United States v. Jordan, 549 F.3d 57 (1st Cir. 2008) (postindictment criminal conduct may show lack of contrition for acceptance-of-responsibility analysis)
United States v. Mara, 523 F.3d 1036 (9th Cir. 2008) (continuing criminal conduct inconsistent with acceptance of responsibility even if different in nature)
United States v. White, 782 F.3d 1118 (10th Cir. 2015) (one panel cannot overrule another panel absent en banc or intervening Supreme Court decision)
United States v. Flaugher, 805 F.3d 1249 (10th Cir. 2015) (upholds warrantless-search condition of supervised release)