United States of America v. Kenneth Robert Simpson
No. 18-1692
United States Court of Appeals for the Eighth Circuit
Submitted: July 16, 2019. Filed: August 6, 2019.
Appeal from United States District Court for the Eastern District of Missouri - St. Louis
Before BENTON, WOLLMAN, and KELLY, Circuit Judges.
Kenneth Robert Simpson directly appeals after the district court1 revoked his supervised release for the third time, sentenced him to 24 months in prison, reimposed a life term of supervised release (with special conditions of supervision), and imposed several new conditions of supervision. Having jurisdiction under
At sentencing, Simpson challenged the 24-month sentence as “beyond excessive” and objected to the imposition of the special conditions claiming there were “no factual findings made as to the necessary nature of any of the conditions.” In his pro se brief, he again asserts the double-jeopardy, reintegration and recusal arguments he presented in a prior appeal, and states
Because Simpson objected at sentencing, this court reviews a revocation sentence and the imposition of conditions for an abuse of discretion. United States v. Fonder, 719 F.3d 960, 961 (8th Cir. 2013); United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011); United States v. Richart, 662 F.3d 1037, 1056 (8th Cir. 2011); United States v. Miller, 557 F.3d 910, 915-18 (8th Cir. 2009).
The district court did not abuse its discretion imposing a 24-month revocation sentence because it properly considered the
District courts are encouraged to provide an explanation of how the conditions satisfy the requirements of
There was no abuse of discretion in the imposition of Special Condition No. 23, which prohibits the use or possession of audio/visual recording or producing equipment absent written approval of the probation office. Although Simpson was not charged with producing or distributing child pornography, the record reflects he received at least 300 but fewer than 600 images of child pornography, all of which were produced using photographic equipment. Pictures were used in this offense even if Simpson did not produce or distribute the images, making this Condition reasonably related to the offense. Simpson is not completely restricted from the use or possession of audio/visual recording or producing equipment if he first obtains permission from his probation office. United States v. Craig, 642 Fed. Appx. 632, 636 (8th Cir. 2016); United States v. Koch, 625 F.3d 470, 481 (8th Cir. 2010); United States v. Ristine, 335 F.3d 692, 696 (8th Cir. 2003).
This court declines to consider Simpson‘s arguments that (1) supervised release and revocation violate double-jeopardy principles and inhibit reintegration into society, and (2) the district court judge should have recused himself. These arguments have been considered and rejected by this court on direct appeals from Simpson‘s prior revocations. United States v. Simpson, 704 Fed. Appx. 609 (8th Cir. 2017), cert. denied, 138 S. Ct. 1314 (2018); United States v. Simpson, 653 Fed. Appx. 850 (8th Cir. 2016), cert. denied, 137 S. Ct. 318 (2016). When a court decides a rule of law, that decision governs the same issues in subsequent
The judgment is affirmed.
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KELLY, Circuit Judge, dissenting in part.
“[A] district court is given wide discretion in imposing conditions on a defendant‘s supervised release.” Poitra, 648 F.3d at 889. Notwithstanding this discretion, a district court may order a special condition of supervised release only if that condition is “reasonably related” to certain factors enumerated in
Yet, even after Simpson objected at the first opportunity to the lack of individualized findings, the district court failed to make any. Today the court excuses the district court‘s error on the ground that the basis for Special Condition 23 can be discerned from the record. I disagree. We have previously upheld a similar condition where aggravating factors made it “reasonable to believe” that the defendant “likely” would photograph and exchange images of minors. Ristine, 335 F.3d at 695-96. For example, in Ristine, on plain-error review, we upheld a restriction on a defendant‘s use of photographic equipment where he “possessed thousands of photos of [minors,] expressed interest in having sexual relations with [minors],” and had sold subscriptions to pornographic images. Id. Likewise, in Koch, we upheld a similar restriction where the overall record showed that the defendant was a “sophisticated computer user” who had done “more than merely possess child pornography.” 625 F.3d at 481-82.
Here, in contrast, I discern nothing from the record that would support a ban on audio/visual recording or producing equipment—including, by its plain language, a cell phone equipped with a camera. Simpson is not accused of producing child pornography or exchanging it with others, and the Presentence Investigation Report (PSR) includes no information from which it would be reasonable to believe that the restriction is justified. To the contrary, the PSR stated expressly that Simpson‘s conduct “was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and the defendant