United States of America v. Brion Dodd Johnson

United States Court of Appeals
For the Eighth Circuit
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No. 14-1048
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brion Dodd Johnson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 10, 2014
Filed: December 4, 2014
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Brion Dodd Johnson appeals the GPS-monitoring condition of his supervised
release. We conclude the district court did not abuse its discretion by imposing this1
condition, and we therefore affirm.
The Honorable Linda R. Reade, Chief Judge, United States District Court for1
the Northern District of Iowa.

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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.
“[S]entencing 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
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statements issued by the United States Sentencing Commission.” United States v.
Mefford, 711 F.3d 923, 926 (8th Cir.), cert. denied, 134 S. Ct. 242 (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
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(8th Cir. 2005) (collecting cases); cf. United States v. Baird, 276 F. App’x 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.
Third, Johnson argues that, because he already faces multiple travel, location,
and association conditions of supervised release, GPS monitoring entails a greater
deprivation of liberty than is reasonably necessary to further the purposes of § 3553.
We again disagree. Before imposing the GPS-monitoring condition, the district court
noted that Johnson was a serial violator of his supervised-release conditions and that
many of his new violations were similar to those he had previously committed. The
court also found that Johnson failed to comply with the directives of and be truthful
with his probation officer. In light of this record, we find no abuse of discretion
because the GPS-monitoring condition will allow the probation officer to verify
Johnson’s compliance with his location and travel restrictions during his third term
of supervised release. See United States v. Miller, 530 F. App’x 335, 338 (5th Cir.)
(per curiam) (holding GPS-monitoring condition was not a greater deprivation of
liberty than reasonably necessary because “any impairments of [the defendant’s]
privacy due to the GPS monitoring [were] outweighed by the condition’s benefits,”
which included “effective verification of compliance with the other conditions of
supervised release”), cert. denied, 134 S. Ct. 486 (2013); cf. Durham, 618 F.3d at 933
(upholding tracking condition because, among other reasons, the district court
indicated tracking was “designed to assist Durham if he was tempted to have
problems in the future”).
Finally, Johnson argues that the court improperly delegated authority to the
probation office to determine whether Johnson could pay for his GPS monitoring.
“Conditions delegating limited authority to non judicial officials such as probation
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officers are permissible so long as the delegating judicial officer retains and exercises
ultimate responsibility.” Durham, 618 F.3d at 933 (quoting United States v.
Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006)). In determining whether a
delegation is permissible, we ask whether the court abdicated its ultimate authority.
Smart, 472 F.3d at 560. When a court has not disclaimed ultimate authority, there is
“an assumption . . . that the probation officer will consult with the court about the
matter or, at a minimum, the court will entertain a motion from the defendant for
reconsideration of the probation officer’s initial decision.” United States v. Wynn,
553 F.3d 1114, 1120 (8th Cir. 2009).
We find that the district court’s delegation was proper because the court gave
no indication it was relinquishing its ultimate authority and the condition was
flexible, allowing the probation office to adjust the amount based on Johnson’s ability
to pay. See Mickelson, 433 F.3d at 1056-57 (upholding supervised-release condition
affording probation office discretion to track defendant’s whereabouts because
district court gave no indication it was giving up ultimate authority and condition’s
flexible nature allowed it to be tailored to defendant’s needs). Other circuits similarly
have approved delegations to the probation officer to determine the ability of the
defendant to pay for his or her release-condition costs. See United States v. Soltero,
510 F.3d 858, 864-65 (9th Cir. 2007) (per curiam) (holding that district court did not
abuse its discretion in delegating to the probation officer the authority to determine
whether defendant could pay for treatment required as a condition of release); United
States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002) (same). We thus reject
Johnson’s argument that an impermissible delegation occurred.
For the foregoing reasons, we hold that the district court did not abuse its
discretion in imposing the GPS-monitoring condition of supervised release.
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