United States v. Brion Johnson

773 F.3d 905, 2014 U.S. App. LEXIS 22790, 2014 WL 6805367
Court of Appeals for the Eighth Circuit·Decided December 4, 2014·No. 14-1048·Published·Cited by 6 cases

Opinion

GRUENDER, Circuit Judge.

Brion Dodd Johnson appeals the GPS-monitoring condition of his-supervised release. We conclude the district court 1 did not abuse its discretion by imposing this condition, and we therefore affirm.

Johnson pleaded guilty to possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court sentenced him to 97 months’ imprisonment followed by fifteen years of supervised release. The court revoked Johnson’s supervised release after he committed twenty-one violations of his release conditions, including failure to comply with sex-offender treatment, unauthorized possession of a computer, possession of pornography, and use of illegal drugs. Finding that Johnson committed these violations, the court sentenced him to a second, eleven-month term of imprisonment followed by ten years of supervised release:

The district court revoked Johnson’s second term of supervised release after he committed another 'fourteen violations, including associating with someone involved in criminal activity, failing to answer his parole officer truthfully, possessing drug paraphernalia, possessing pornography, and using photographic equipment to produce pornography. The court then sentenced Johnson to eleven months’ imprisonment followed by a third, eight-year term of supervised release. In addition to the standard supervised-release conditions, the district court required that Johnson be subject to electronic monitoring via a global-positioning satellite system (“GPS monitoring”) and that Johnson pay the costs of this monitoring as determined by the United States Probation Office. Johnson asked the court to reconsider the GPS-monitoring condition. The court denied his request. Johnson now appeals.

“[Sentencing judges are afforded ‘wide discretion when imposing terms of supervised release.’ ” United States v. Smart, 472 F.3d 556, 557 (8th Cir.2006) (quoting United States v. Behler, 187 F.3d 772, 778 (8th Cir.1999)). The district court has the power to impose any condition it considers to be appropriate, so long as the condition complies with the limits set out in 18 U.S.C. § 3583(d), namely, the condition must “(1) [be] reasonably related to the pertinent § 3553(a) sentencing factors, (2) involve[ ] no greater deprivation of liberty than reasonably necessary for the purposes set forth in § 3553(a), and (3)[be] consistent with any pertinent policy state *908 ments issued by the United States Sentencing Commission.” United States v. Mefford, 711 F.3d 923, 926 (8th Cir.), cert. denied, — U.S.-, 134 S.Ct. 242, 187 L.Ed.2d 179 (2013). “We review a district court’s imposition of special conditions of supervised release for abuse of discretion.” United States v. Hobbs, 710 F.3d 850, 852 (8th Cir.2013).

Johnson first argues that the district court abused its discretion because the Sentencing Commission’s recommended supervised-release conditions do not include GPS monitoring. However, the district court is not limited to the recommended conditions, and it retains wide discretion to impose any condition it considers to be appropriate so long as the condition complies with the limits set out in 18 U.S.C. § 3583(d). See United States v. Durham, 618 F.3d 921, 933-34 (8th Cir. 2010) (upholding special condition of supervised release requiring defendant convicted of receiving child pornography to “submit to any means utilized by the probation office to track his whereabouts or location at any time during supervised release”).

Johnson next argues that the condition does not comply with § 3583(d) because the § 3553 factors do not justify GPS monitoring. We disagree. When Johnson’s attorney asked the court to reconsider the GPS condition, arguing that “none of [Johnson’s] violations pertain[ed] to being somewhere [he was] not supposed to be,” the court explained that the condition arose from a concern for the safety of the community — a valid factor pursuant to § 3553(a)(2)(C). The court then referred to Johnson’s criminal history — namely, his possession of child pornography — and his pattern of violating his supervised — release conditions, including by producing sexually explicit images in an unknown location. We also note that Johnson had prior convictions for second-degree murder and second-degree burglary. These facts and this concern for community safety distinguish Johnson’s case from those in which we rejected “conditions of release ... imposed without any evidence of their need and ... not reasonably related to deterrence, protecting the public, or providing necessary training or correctional treatment.” United States v. Camp, 410 F.3d 1042, 1045-46 (8th Cir.2005) (collecting cases); cf. United States v. Baird, 276 Fed.Appx. 691, 692 (9th Cir.2008) (vacating GPS condition and remanding because record did not permit meaningful review or describe nature of monitoring, thus precluding court from determining whether condition furthered goals of supervised release). Given Johnson’s specific offense history and his record of repeatedly violating his supervised-release conditions, we find no abuse of discretion on this basis.

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United States v. Brion Johnson, 773 F.3d 905, 2014 U.S. App. LEXIS 22790, 2014 WL 6805367 (8th Cir. 2014).

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