United States v. Levi Smith

Filing

OPINION FILED - THE COURT: STEVEN M. COLLOTON, RAYMOND C. CLEVENGER, III and DUANE BENTON. Duane Benton, Authoring Judge (PUBLISHED) [3829549] [10-3579]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

__________
No. 10-3579
__________
United States of America,

*
*
Plaintiff - Appellee,
*
* Appeal from the United States
v.
* District Court for the
* District of Nebraska.
Levi Alan Smith,
*
*
Defendant - Appellant.
*
___________
Submitted: June 13, 2011
Filed: September 16, 2011
___________
Before COLLOTON, CLEVENGER,1 and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
Levi Alan Smith entered a conditional guilty plea to failing to register as a sex
offender as required by the Sex Offender Registration and Notification Act (SORNA),
18 U.S.C. § 2250(a). The district court sentenced him to 15 months’ imprisonment
and five years’ supervised release, with special conditions. He appeals both the

1

The Honorable Raymond C. Clevenger, III, United States Circuit Judge for
the Federal Circuit, sitting by designation.

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conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms in part, and vacates and remands in part.
I.
In 1998, at age 17, Smith had sex with a 13-year-old girl in Iowa. He was
convicted of assault with intent to commit sexual abuse, sentenced to five years’
imprisonment, and required to register as a sex offender. In 2007, he was convicted
in Iowa for failure to register as a sex offender, receiving a suspended sentence and
probation. Later, he moved to Nebraska, and knowingly failed to register as a sex
offender there. He was indicted for violating SORNA, which requires sex offenders
to register in each jurisdiction where the offender resides, is employed, or is a student.
See 18 U.S.C. § 2250(a); 42 U.S.C. §§ 16901-91. Smith pled guilty, reserving the
right to appeal the denial of his motion to dismiss the indictment.
The presentence investigation report (PSR) recommended a Guideline range
of 21 to 27 months based on a Criminal History Category V (Smith also has
convictions for burglary, drug possession, and drug distribution in prison). Smith
moved for a downward departure, claiming an overstatement of criminal history. The
court heard evidence, sustained the motion, and lowered the Criminal History
Category to IV, making the guideline range 15 to 21 months. The court sentenced
him to 15 months’ incarceration.
At sentencing, the Government accepted and adopted the PSR. Smith did not
object to it, but did object to 13 of the 14 proposed special conditions of supervised
release. Emphasizing that the sexual-abuse-of-a-minor occurred 12 years ago, Smith
claimed that the Government did not meet its burden to prove that the special
conditions were reasonable. He insisted that the court make findings before imposing
any special conditions. Smith rejected the court’s offer to be evaluated in order to
determine the need for one or more of the conditions.
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At sentencing, the district court noted that Smith was a sex offender, stating
each recommended condition along with the reasoning behind several of them. The
court deleted one condition, added one, and modified several. The court imposed 14
special conditions of supervision. On appeal, Smith challenges:
Special Condition 3: The defendant shall submit his or her person,
residence, office or vehicle to a search conducted by a United States
Probation Officer at any time; failure to submit to a search may be
grounds for revocation; defendant shall warn any other residents that the
premises may be subject to searches pursuant to this condition.
Special Condition 5: The defendant shall have no contact, nor reside
with children under the age of 18, including his/her own children, unless
approved in advance by the U.S. Probation Officer in consultation with
the treatment providers. The defendant must report all incidental contact
with children to the U.S. Probation Officer and the treatment provider.
Should the defendant have incidental contact with a child, the defendant
is required to immediately remove him/herself from the situation and
notify his/her U.S. Probation Officer with 24 hours of this contact.
Special Condition 6: The defendant shall not access or come within 500
feet of schools, school yards, parks, arcades, playgrounds, amusement
parks, or other places used primarily by children under the age of 18
unless approved in advance by the U.S. Probation Officer.
Special Condition 7: The defendant shall not be employed in, or
participate in, any volunteer activity that involves contact with children
under the age of 18, except under circumstances approved in advance by
the U.S. Probation Officer.
Special Condition 9: The defendant shall undergo a sex offense-specific
evaluation and participate in a sex offender treatment and/or mental
health treatment program approved by the U.S. Probation Officer. The
defendant shall abide by all rules, requirements, and conditions of the
sex offender treatment program(s), including submission to therapeutic
polygraph testing. The defendant shall waive his/her right of
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confidentiality in any records for mental health assessment and
treatment imposed of this judgment to allow the U.S. Probation Officer
to review the defendant’s course of treatment and progress with the
treatment provider. The defendant shall pay for these services as
directed by the probation officer.
Special Condition 10: The defendant shall sign releases of information
to allow all professionals involved in the assessment, treatment, and
behavioral monitoring of the defendant to communicate and share
documentation with each other.
II.
A.
As Smith objected in the district court, his conditions of supervised release
receive abuse-of-discretion review. United States v. Bender, 566 F.3d 748, 751 (8th
Cir. 2009).
A district court has broad discretion to impose special conditions of
supervised release, so long as each condition complies with the
requirements set forth in 18 U.S.C. § 3583(d). Section 3583(d) first
requires that a special condition must be reasonably related to the nature
and circumstances of the offense of conviction, the defendant’s history
and characteristics, the deterrence of criminal conduct, the protection of
the public from further crimes of the defendant, and the defendant’s
educational, vocational, medical, or other correctional needs. A special
condition need not be related to all the factors; the factors are to be
weighed independently. Second, a special condition also must involve
no greater deprivation of liberty than is reasonably necessary to deter
criminal conduct, to protect the public from further crimes of the
defendant, and to provide for the defendant’s educational, vocational,
medical, and other correctional needs. Finally, a special condition must
be consistent with any pertinent policy statements issued by the
Sentencing Commission. In fashioning a special condition of supervised
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release, a 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.
United States v. Springston, ___ F.3d ___, No. 10-2820, 2011 WL 3611473, at *2
(8th Cir. Aug. 18, 2011) (quotation marks and further citations omitted). “[A] court
may impose a special condition on the ground that it is related to a defendant’s prior
offense, but . . . may not impose a special condition on all those found guilty of a
particular offense.” Id. at *3 (quotation marks and further citations omitted). Its
“findings may be based on any information other than materially false information.”
United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011) (per curiam). However, a
district court may not impose conditions “‘on the basis of pure speculation or
assumptions.’” United States v. Fenner, 600 F.3d 1014, 1027 (8th Cir. 2010),
quoting United States v. Kreitinger, 576 F.3d 500, 506 (8th Cir. 2009). Finally, this
court reviews the terms and conditions of supervised release for abuse of discretion,
reversing when the sentencing court “fails to consider a relevant and significant
factor, gives significant weight to an irrelevant or improper factor, or considers the
appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Walters, 643 F.3d 1077, 1079 (8th Cir. 2011), quoting United States
v. Asalati, 615 F.3d 1001, 1006 (8th Cir. 2010) (internal quotation marks omitted).
Smith also challenges the conditions as “overbroad” or a “greater deprivation
of liberty than is reasonably necessary.” On substantive review, this court considers
the totality of the facts, including: the recency of the conduct prompting the
conditions, the extent and severity of that conduct, the probation officer’s authority
to waive the conditions, and how severely the conditions restrict the defendant’s
liberty. See, e.g., United States v. Stults, 575 F.3d 834, 853 (8th Cir. 2010); United
States v. Smart, 472 F.3d at 556, 558-59 (8th Cir. 2006). This court is “particularly
reluctant to uphold sweeping restrictions on important constitutional rights,” and

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applies de novo review to such conditions. United States v. Kelly, 625 F.3d 516, 520
(8th Cir. 2010) (quotation marks and citation omitted).
B.
Smith first argues that the district court failed to make individualized findings.
The Government responds that any failure on the district court’s part to make
individualized findings was harmless error because the supporting reasons are evident
on the overall record. While this court encourages detailed findings, it is enough that
the factual record supports the conditions imposed. See United States v. E.V., 500
F.3d 747, 754 (8th Cir. 2007) (“we may affirm a sentence on any grounds supported
by the record”) (quotation marks and citation omitted). Reversal is not required by a
lack of individualized findings if the basis for the imposed condition can be discerned
from the record. United States v. Thompson, ___ F.3d ___, No. 10-3840, 2011 WL
3862587, at *4 (8th Cir. Sept. 2, 2011) , citing United States v. Carlson, 406 F.3d
529, 532 (8th Cir. 2005).
The district court stated that since it “basically has to assume that [Smith] has
a sex offender problem,” typical sex offender conditions were appropriate. Taken out
of context, this borders on imposing blanket conditions “on all those found guilty of
a particular offense.” Springston, 2011 WL 3611473, at *3 (quotation marks and
citation omitted); cf. id. (“certain characteristics may justify corresponding conditions
for virtually all offenders with such characteristics”). However, the district court
also discussed each condition, and ruled that some of the recommended conditions
were “overprescriptive.” It adopted the PSR, which described Smith’s prior sex
offense against a minor. See United States v. Wintermute, 443 F.3d 993, 1005 (8th
Cir. 2006) (“A sentencing court may accept the facts in a PSR as true unless the
defendant objects to specific factual allegations.”) (quotation marks and citation
omitted). Cf. United States v. Curry, 627 F.3d 312, 315 (8th Cir. 2010) (vacating

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pornography condition; PSR “did not discuss pornography . . . and the district court
did not explain why it prohibited [defendant] from possessing pornography”). Smith
objects that the sex offense occurred 12 years ago, but he also had a state court
failure-to-register conviction four years ago. Cf. United States v. Scott, 270 F.3d 632,
636 (8th Cir. 2001) (vacating “special conditions of sex offenders”; past sex offense
was 15 years old, and conditions had not been imposed in two prior federal
sentencing proceedings). Given Smith’s combined history of avoiding sex offender
registration and committing a sex offense against a minor, the record supports the
district court’s imposition of Conditions 3 (suspicionless search), 5 and 7 (contact
with minors), and 9 and 10 (treatment). Accordingly, the district court’s failure to
make individualized findings on the record was harmless error.2 While the district
court could have made better findings, this court can find no abuse of discretion in
the district court’s imposition of Conditions 3, 5, 7, 9, and 10.
The record does not, however, support Condition 6. Condition 6, a movement
restriction, does not just ban loitering near protected places. Its “not . . . come within”
language prohibits Smith even from driving by schools, parks, or other places used
primarily by children, on main thoroughfares to legitimate activities.

2

Relying on out-of-circuit cases, Smith repeatedly argued at sentencing that
the district court, by discussing special conditions with his attorney, required him to
bear the burden of showing that the recommended special conditions were not
appropriate. On appeal, he reiterates this argument.
Since Smith did not object, the facts alleged in the PSR are accepted as true.
United States v. Oaks, 606 F.3d 530, 541-42 (8th Cir. 2010); United States v.
Replogle, 628 F.3d 1026, 1029 (8th Cir. 2011). The government does have the
obligation to point to evidence proving the basic facts. United States v. Sorrells, 432
F.3d 836, 838-39 (8th Cir. 2005). Here, the only inquiry is whether the record
supports the special conditions imposed.
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This court requires an “individualized inquiry” and “sufficient findings on the
record.” Springston, 2011 WL 3611473, at *2 (quotation marks and citations
omitted). True, this court has twice upheld provisions similar to Condition 6,
emphasizing that the probation officer may waive them. See United States v. Simons,
614 F.3d 475, 482-83 (8th Cir. 2010) (plain error review); United States v. Stults, 575
F.3d 384, 851-53 (8th Cir. 2009). The Simons defendant had two recent child sex
convictions – one for forcible rape. Simons, 614 F.3d at 482. In Stults, the defendant
recently “possessed child pornography, some depicting the sadistic and violent sexual
abuse of pre-teen minors,” and also had sexually abused his 11-year-old niece. Stults,
575 F.3d at 853. On this record, Smith has not shown such egregious behavior.
Without more individualized fact-finding and without any factual support in the
record for the sweep of this contact restriction, the district court abused its discretion
in imposing Condition 6. This court vacates and remands Condition 6 for further
proceedings.
C.
Smith also claims that special conditions 3, 5, 7, 9, and 10 are not related to a
legitimate sentencing purpose and deprive him of greater liberty than necessary.

Condition 3 is similar to a recommended special condition for sex offenses.
U.S.S.G. §5D1.3(d)(7)(C). See also 18 U.S.C. § 3583(d) (sex offenders required to
register under SORNA may be required to submit to warrantless, reasonablesuspicion searches and seizures “by any probation officer in the lawful discharge of
the officer’s supervision functions”). Condition 3 contains no reasonable suspicion
requirement, but district courts may impose suspicionless search conditions. See
United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007); United States v.
Hanrahan, 508 F.3d 962, 971 (10th Cir. 2007). In light of Smith’s history of evading
authorities, the district court acted within its discretion by enabling broadened
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monitoring. Cf. Samson v. California, 547 U.S. 843, 854 (2006) (“Imposing a
reasonable suspicion requirement . . . would give parolees greater opportunity to
anticipate searches and conceal criminality.”) (citation omitted).

Conditions 5 and 7 restrict Smith’s contact with minors. Contrary to Smith’s
argument,“no-contact” special conditions may be appropriate for other than child
pornography convictions. Because Smith sexually abused a minor, and the probation
officer may waive the condition, the district court acted within its discretion. See
Simons, 614 F.3d at 481-82 (on plain error review, upholding prohibition on contact
with children by a SORNA violator, noting that requiring prior approval from a
probation officer was reasonable); cf. Springston, 2011 WL 3611473, at *3
(observing that “special [no-contact] conditions could be justified . . . when there is
reason to believe that the failure to register evidences recalcitrance and an ongoing
proclivity to commit sexual crimes”).

Smith’s prior sexual-assault-of-a-minor and failure-to-register convictions form
a sufficient basis for contact Conditions 5 and 7. He complains that he could not raise
his own child without prior approval. “The relationship between a parent and child
is a fundamental liberty interest protected by the due process clause.” United States
v. Davis, 452 F.3d 991, 995 (8th Cir. 2006) (citations omitted). Reviewing de novo,
this court affirms: Smith has no children, so the condition does not infringe any
fundamental liberty. See United States v. Kerr, 472 F.3d 517, 523 (8th Cir. 2006).

Conditions 9 and 10 – to undergo a sex-offense-specific evaluation and
treatment, and to sign a release of information to professionals – are also
recommended special conditions for sex offenses. U.S.S.G. §5D1.3(d)(7)(A). “In
order to impose a condition of participation in mental health treatment, the district
court must have reason to believe the defendant needs such treatment.” United
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States v. Conelly, 451 F3d. 942, 945 (8th Cir. 2006). Smith’s sex offense 12 years
ago might not by itself support the condition. See Scott, 270 F.3d at 636 (15 years
since sexual abuse unrelated to offense of conviction; no evidence of future
propensity to commit sex crimes); United States v. Kent, 209 F.3d 1073, 1077 (8th
Cir. 2000) (13 years since domestic violence incident unrelated to offense of
conviction; no evidence of need for treatment). However, Smith’s failure-to-register
convictions – while not involving sexual activity – show refusal to abide by the
restrictions placed on sex offenders. Indeed, the district court cited failure to register
as a reason for the condition. In United States v. Behler, 187 F.3d 772, 780-81 (8th
Cir. 1999), the district court imposed a drug treatment condition, even though the
drug-trafficking defendant had abstained from drug use for about 10 years. This court
upheld the condition, observing that Behler had formerly abused the drug he later was
convicted of trafficking in. Id. at 781. See also Kent, 209 F.3d at 1077, discussing
Behler, 187 F.3d at 779. Similarly, failure to register does not itself involve sexual
misconduct, but undermines efforts to combat sex-offender recidivism. While a close
question, Conditions 9 and 10 relate to legitimate sentencing purposes of
rehabilitation and protection of the public, and do not deprive Smith of greater liberty
than necessary. The district court did not abuse its discretion in imposing Conditions
3, 5, 7, 9, and 10.3
D.
Smith also contends the special conditions are an improper delegation of
authority to the United States Probation Office. A delegation of limited authority to
non-judicial officials is proper “so long as the delegating judicial officer retains and
exercises ultimate responsibility.” Bender, 566 F.3d at 752, discussing Kent, 209
3

Also demonstrating the proper use of discretion here is the district court’s
statement that it would reconsider the conditions of release if evaluation showed
Smith did not need the restrictions.
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F.3d at 1078-79. Here, as in Bender, the district court did not relinquish final
authority over the conditions of supervised release. Id.
III.
Smith appeals the denial of his motion to dismiss the indictment, which this
court reviews de novo. United States v. Hacker, 565 F.3d 522, 524 (8th Cir. 2009);
United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008). Smith recognizes that
this court has denied his constitutional challenges to SORNA, and that this court is
bound by the previous panel decisions. See United States v. Waddle, 612 F.3d 1027,
1029-30 (8th Cir. 2010) (rejecting ex post facto challenge to SORNA and due process
clause challenge); Hacker, 565 F.3d at 527-28 (rejecting challenge to interim rule on
Administrative Procedure Act grounds for lack of standing and rejecting nondelegation doctrine challenge to SORNA); United States v. Howell, 552 F.3d 709,
713 (8th Cir. 2009) (rejecting commerce clause challenge to SORNA).

Smith also challenges SORNA under the Tenth Amendment. In his view, the
law impermissibly commandeers state authorities by requiring them to accept sex
offender registrations. See Printz v. United States, 521 U.S. 898, 935 (1997) (“The
Federal Government may neither issue directives requiring the States to address
particular problems, nor command the States’ officers, or those of their political
subdivisions, to administer or enforce a federal regulatory program.”). Formerly, this
court denied Tenth Amendment prudential standing to individuals “absent the
involvement of a state or its instrumentalities.” Hacker, 565 F.3d at 526. Accord
United States v. Zuniga, 679 F.3d 845, 851 (8th Cir. 2009). The Supreme Court
recently held that criminal defendants may challenge statutes on Tenth Amendment
grounds. Bond v. United States, ___ U.S. ___, 131 S. Ct. 2355, 2366-67 (2011).
“[A] panel may depart from circuit precedent based on an intervening opinion of the
Supreme Court that undermines the prior precedent.” T.L. ex rel. Ingram v. United
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States, 443 F.3d 956, 960 (8th Cir. 2006). Smith has standing. Even so, his Tenth
Amendment claim fails on the merits.
While SORNA orders sex offenders traveling interstate to register and
keep their registration current, SORNA does not require the States to
comply with its directives. Instead, the statute allows jurisdictions to
decide whether to implement its provisions or lose ten percent of their
federal funding otherwise allocated for criminal justice assistance.
United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011), citing South Dakota
v. Dole, 403 U.S. 203, 210-11 (1987). See also Kennedy v. Allera, 612 F.3d 261, 269
(4th Cir. 2010) (observing that SORNA does not impermissibly commandeer state
authorities).
* * * * * * * *
The judgment of the district court is vacated and remanded as to Condition 6,
and is affirmed in all other respects.

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