United States of America v. Brian Whitmire

United States Court of Appeals
For the Eighth Circuit
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No. 21-2611
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United States of America
Plaintiff - Appellee
v.
Brian Whitmire
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 15, 2022
Filed: August 2, 2022
[Unpublished]
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Before LOKEN, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Brian Whitmire pleaded guilty to possessing a firearm and ammunition as a
felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 84
months of imprisonment and three years of supervised release. On appeal, he
contends that the district court erred in calculating his United States Sentencing

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Guidelines range and in imposing a special condition of supervised release. Having
jurisdiction under 18 U.S.C. § 1291, we remand for resentencing.
I.
Whitmire argues that the district court miscalculated his Guidelines range by
finding that his 2005 conviction for sexual assault in the second degree qualified as
a crime of violence for purposes of calculating his base offense level. See USSG
§§ 2K2.1(a)(4)(A), 4B1.2(a). He contends—and the government agrees—that the
use, attempted use, or threatened use of violent force against the person of another
is not a necessary element of Arkansas Code § 5-14-125(a)(3), the statute underlying
his 2005 conviction, and that § 5-14-125(a)(3) proscribes a broader range of conduct
than a forcible sex offense. We agree that Whitmire’s 2005 conviction does not
qualify as a crime of violence under the Guidelines, see Lofton v. United States, 920
F.3d 572, 575–76 (8th Cir. 2019) (abrogating United States v. Dawn, 685 F.3d 790
(8th Cir. 2012)), and we remand to the district court for resentencing in accordance
with a corrected Guidelines calculation.1
II.
Whitmire also argues that the district court erred in imposing a special
condition of supervised release requiring him to participate in sex offender treatment
because the condition is not related to the offense of conviction or the § 3553(a)
factors.
We review the district court’s imposition of a condition of supervised release
for abuse of discretion. United States v. Mays, 993 F.3d 607, 620 (8th Cir. 2021).
“District courts have broad discretion to impose special conditions, provided that
1 Whitmire also argues that the district court procedurally erred because it
made no mention of the 18 U.S.C. § 3553(a) sentencing factors and did not
adequately explain its sentencing decision. Because we remand on other grounds,
we do not reach this additional argument.

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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. Wright, 958
F.3d 693, 697 (8th Cir. 2020) (quoting United States v. Godfrey, 863 F.3d 1088,
1101 (8th Cir. 2017)); see also 18 U.S.C. § 3583(d). Thus, the condition must be
“‘reasonably related’ to (1) the nature and circumstances of the offense; (2) the
defendant’s history and characteristics; (3) the deterrence of criminal conduct; (4)
the protection of the public from further crimes of the defendant; and (5) the
defendant’s educational, vocational, medicinal, or other correctional needs.” United
States v. Muhlenbruch, 682 F.3d 1096, 1102 (8th Cir. 2012). “When crafting a
special condition of supervised release, the 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.” Wright, 958 F.3d at 697 (quoting United States v.
Wiedower, 634 F.3d 490, 493 (8th Cir. 2011)).
On the record before us, it is not clear that the challenged condition is
reasonably related to Whitmire’s offense of conviction, the deterrence of criminal
conduct, the protection of the public, or Whitmire’s correctional needs. See United
States v. Kempter, 29 F.4th 960, 968 (8th Cir. 2022) (“A district court is ‘encouraged
to provide an explanation of how the conditions satisfy the requirements of 18 U.S.C.
§ 3583(d), but where the basis for the special conditions can be discerned from the
record, reversal is not required.’” (cleaned up) (quoting United States v. Simpson,
932 F.3d 1154, 1156 (8th Cir. 2019))). The district court acknowledged that
Whitmire’s sexual assault offense occurred in 2004 and that other than a reporting
violation in 2009, there was no indication in the record that he had “any additional
issues with sexual assault.” The court also stated, “[Y]ou could argue that
possession of a firearm had no impact on what [Whitmire] pled guilty to in 2004.”
But the court made few other findings “to ensure that the special condition satisfies
the statutory requirements.” Wright, 958 F.3d at 697 (quoting Wiedower, 634 F.3d
at 493).

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We leave Whitmire’s objection to the special condition of supervised release
for the district court to address on remand. At resentencing, the court will have the
opportunity to make “the requisite individualized inquiry and make sufficient
findings on the record if it decides to reimpose [this condition].” Mays, 993 F.3d at
621–22 (quotation omitted).2
We vacate Whitmire’s sentence and remand for further proceedings.
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2 As Whitmire points out, the district court orally stated that Whitmire would
be required to undergo treatment only if, after an interview, “it’s determined he
needed some treatment”; otherwise, “he wouldn’t have to undergo any treatment or
any type of classes.” The written statement of conditions, however, makes no
mention of an initial interview. If the court reimposes the challenged condition, it
may revisit any potential conflict between the written judgment and the oral
announcement. If the court declines to reimpose the challenged condition, this issue
would be moot.

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