United States of America v. Devin Gaines McFunk

United States Court of Appeals
For the Eighth Circuit
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No. 21-2409
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United States of America
Plaintiff - Appellee
v.
Devin Gaines McFunk
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 18, 2022
Filed: April 11, 2022
[Unpublished]
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Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Devin Gaines McFunk pled guilty to failure to register as a sex offender. The
district court1 imposed a sentence of 20 months’ imprisonment and a 5-year term of
supervised release. Gaines McFunk appeals the special condition of supervised
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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release prohibiting him from direct contact with any minor without prior approval.
We affirm.
On April 15, 2013, 18-year-old Gaines McFunk was convicted in California
of a crime involving a minor that required him to register as a sex offender. On
August 7, 2017, while still in California custody, Gaines McFunk signed and
initialed the State of California Notice of Sex Offender Registration Requirement
under the name “Devin Gaines.” Gaines McFunk was paroled on February 4, 2018,
and registered as a sex offender using the name “Devin Gaines.”
On June 18, 2018, Gaines McFunk removed his electronic monitor and
absconded from parole supervision, fleeing to Ames, Iowa. After absconding, he
used different aliases to find housing, obtain employment, avoid detection by law
enforcement, and disguise himself in the community. At the time of his arrest,
Gaines McFunk was residing with his girlfriend and her two children (ages five and
eight) as well as his one-year-old daughter from a prior relationship.
During a post-Miranda interview, Gaines McFunk admitted to living in Iowa
for more than two years. He provided various explanations for using different names
but acknowledged he was required to register as a sex offender. Gaines McFunk
explained his failure to register in Iowa, stating he wanted to obtain better
employment and because he feared law enforcement would send him back to
California. On January 22, 2021, Gaines McFunk pled guilty to one count of failure
to register as a sex offender, in violation of 18 U.S.C. § 2250. In February 2021,
while Gaines McFunk was incarcerated, Gaines McFunk’s girlfriend gave birth to
their first child together, a son.
At sentencing, the district court overruled Gaines McFunk’s objection to the
proposed special condition prohibiting him from direct contact with any child under
the age of 18 without the prior approval of his supervising probation officer. The
district court found the condition was reasonably related to the sentencing factors,
reciting specifically the seriousness of Gaines McFunk’s prior offense, his failure to

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comply with the terms of his parole, his decision to move multiple times using
different aliases, the frequency in which children are abused by family members or
friends, and the need to protect the public, which outweighed his desire to be with
his family. The district court found the condition was narrowly tailored because the
probation officer was given discretion to approve contact with children if the
requested contact is deemed appropriate during the period of supervision.
We review the imposition of a special condition of supervised release for
abuse of discretion. United States v. Wright, 958 F.3d 693, 697 (8th Cir. 2020). A
sentencing court has broad discretion to impose special conditions, “provided that
each condition ‘1) is reasonably related to the sentencing factors set forth in 18
U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in § 3553(a); and 3) is consistent with any
pertinent policy statements issued by the Sentencing Commission.’” United States
v. Godfrey, 863 F.3d 1088, 1101 (8th Cir. 2017) (quoting United States v. Woodall,
782 F.3d 383, 385-86 (8th Cir. 2015) (per curiam)). “[T]he 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.” United States v. Wiedower, 634 F.3d 490, 493
(8th Cir. 2011) (quotations omitted).
The challenged condition implicates a constitutionally protected liberty
interest, as it affects Gaines McFunk’s ability to have contact with his own child,
and thus is subject to more careful scrutiny. United States v. Puckett, 929 F.3d 1004,
1007 (8th Cir. 2019) (per curiam). Previously, we have upheld a condition requiring
a defendant to obtain permission from a probation officer before contacting his own
children. See United States v. Hobbs, 710 F.3d 850, 854 (8th Cir. 2013). In several
cases, we have cited a defendant’s history of sexual abuse of a minor as a factor in
upholding the condition. See United States v. Simons, 614 F.3d 475, 481-82 (8th
Cir. 2010) (citing cases). We have also determined that requiring prior approval
before contact with minors is a reasonable means of ensuring that such contact is

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appropriate. Id. at 482; see also Wright, 958 F.3d at 697-98; Puckett, 929 F.3d at
1007.
Here, the district court expressed concern regarding the nature of Gaines
McFunk’s 2013 conviction. While acknowledging Gaines McFunk’s youth at the
time of the offense, the district court noted that his choices since then, including his
intentional deception and absconding, demonstrated an unwillingness to follow the
law. The district court had “no confidence” that Gaines McFunk would comply with
expectations regarding appropriate contact with minors without the condition. After
careful review of the record, the district court did not abuse its discretion in imposing
the special condition.
The judgment of the district court is affirmed.
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