Submitted: July 16, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
BENTON, WOLLMAN, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
Robert Simpson directly appeals after the district
court 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 28 U.S.C. § 1291,
this court affirms.
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 he has no intention
of complying with the terms of release.
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
district court did not abuse its discretion imposing a
24-month revocation sentence because it properly considered
the 18 U.S.C. § 3553(a) factors, and did not overlook a
relevant factor, or commit a clear error in weighing relevant
factors. United States v. Larison, 432 F.3d 921,
922-24 (8th Cir. 2006). The sentence was below the statutory
limit. 18 U.S.C. §§ 3583(e)(3), (h),
(k). Simpson's objection to the court reimposing
old supervised release conditions amounts to an improper
collateral attack of the underlying sentence.
Miller, 557 F.3d at 913.
courts are encouraged to provide an explanation of how the
conditions satisfy the requirements of § 3583(d), but
where the basis for the special conditions can be discerned
from the record, reversal is not required. United States
v. Thompson, 888 F.3d 347, 351 (8th Cir. 2018);
United States v. Poitra, 648 F.3d 884, 890 (8th Cir.
2011); United States v. Thompson, 653 F.3d 688, 691,
693-94 (8th Cir. 2011). Special Condition No. 24 requires
Simpson to submit to periodic polygraph testing (at the
discretion of the probation officer) to ensure compliance
with the requirements of his supervision or treatment.
Simpson admitted he did not report to the community
corrections center or to the probation officer as required.
He has repeatedly stated that he does not intend to comply
with the terms of his supervised release, and he has
repeatedly failed to comply. The record strongly supports the
imposition of this Condition. Wiedower, 634 F.3d at
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).
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 stages of the case. Maxfield v.
Cintas Corp., No. 2, 487 F.3d 1132, 1134-35 (8th Cir.
2007). This court also declines to address Simpson's
newly-raised assertion that this court's prior rulings
never adjudicated his claims because it is no more than a
collateral attack on those prior rulings.
judgment is affirmed.
Circuit Judge, dissenting in part.
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 §
3553(a), "involves no greater deprivation of liberty
than is reasonably necessary" for the purposes of
certain § 3553(a) factors, and "is consistent with
any pertinent policy statements issued by the Sentencing
Commission." 18 U.S.C. § 3583(d). Given these
limitations, "when imposing a special condition of
supervised release, a 'district court must make
an individualized inquiry into the facts and circumstances
underlying a case and make sufficient findings on the record
so as to ensure that the special condition satisfies the
statutory requirements.'" Poitra, 648 F.3d
at 889 (emphasis added) (quoting Wiedower, 634 F.3d
at 493). We have repeatedly held that the failure to make
individualized findings constitutes error. See,
e.g., United States v. Osman, No. 18-1502, 2019
WL 3022331, at *3 (8th Cir. July 11, 2019) ("Failure to
make these particularized findings is plain error.");
Poitra, 648 F.3d at 889. And we have stressed that
requiring individualized findings helps to "ensure that
each condition of supervised release complies with the