United States of America v. Kermit Clay

United States Court of Appeals
For the Eighth Circuit
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No. 23-2389
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kermit Clay
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: April 8, 2024
Filed: April 22, 2024
[Unpublished]
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Before BENTON, ARNOLD, and STRAS, Circuit Judges.
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PER CURIAM.
After Kermit Clay completed a five-year prison sentence for receiving and
distributing child pornography, see 18 U.S.C. § 2252(a)(2), (b)(1), he began a five-
year term of supervised release. As we detail below, Clay has struggled to abide by
the conditions of his supervision for many years, leading to several modifications of
those conditions and to several revocations of his supervision. When the district

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court1 most recently revoked Clay's supervision, it sentenced him to 24-months'
imprisonment followed by a lifetime term of supervised release. Clay maintains on
appeal that the court's imposition of a lifetime term of supervision is substantively
unreasonable. We affirm.
Only a few weeks into Clay's first term of supervision, his probation officer
notified the court that Clay had lied about living with a fellow sex offender, so the
court modified the conditions of his supervision to require him to reside in a
residential reentry center. Over the next few years, the court modified Clay's
conditions three more times after he had violated the conditions of his release,
including an incident when he had unauthorized contact with two minor children.
When the probation office alleged that Clay had violated yet another condition of his
supervised release, the district court held a hearing and told Clay that "what you've
been doing scares me" and that judges lie "awake at night fearful that someone will
move back into [child pornography] and go some other step and into contact." It also
told Clay that it "look[ed] like you're priming something." So it sentenced Clay to
sixteen days in jail and five more years of supervised release. A few weeks later
Clay's probation officer reported that Clay had been dismissed from a residential
reentry center for violating the facility's rules, so the court sentenced him to 106 days
in prison and five additional years of supervision.
After Clay completed that prison sentence, his probation officer alleged that
Clay had possessed pornography, had downloaded an application to his phone that
allowed him to exchange sexually explicit material, and had had unauthorized contact
with a minor. His probation officer also accused him of sending text messages to his
ex-girlfriend's minor daughter, which the probation office had specifically warned
1The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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him against. The court revoked Clay's supervised release yet again and sentenced him
to six months in prison and five more years of supervision.
During Clay's next term of supervision, his probation officer informed the court
that he had encountered Clay and a thirteen-year-old girl walking through a mall
together. When the officer confronted Clay, he claimed that the girl was his daughter.
The officer, however, knew that Clay didn't have a daughter. Clay admitted the
allegation against him. At a hearing, the court explained that Clay was displaying
"classic grooming behavior" and that "[t]he only thing that's missing is actual
touching of an innocent little girl." The district judge remarked that he and Clay "have
had this conversation five times" and that this incident at the mall "concern[ed] the
heck out of" him. It also noted that Clay was "a really good talker" who had
manipulated the child's mother into giving him access to the girl. So it sentenced Clay
to nine months in prison and fifteen more years of supervised release. When Clay
appealed to our court, asserting that the length of the supervised-release term was
unreasonable, we affirmed in a two-paragraph opinion. See United States v. Clay,
2022 WL 6885270, at *1 (8th Cir. Oct. 12, 2022) (unpublished per curiam).
We finally arrive at the current supervised-release violations. Less than six
months into Clay's new term of supervision, his probation officer informed the court
that officers had found "dozens if not hundreds of videos" saved on Clay's television
that depicted adult pornography and child erotica, including "[s]everal videos
contain[ing] images of topless prepubescent females, children in swimwear on the
beach, prepubescent females doing gymnastics stretching, videos of teens dancing
sexually, and a video of a possible teen female doing sexual movements on a bed."
Clay eventually "admitted to searching for and viewing videos of minor females for
as many as four months," or just a few months after completing his most recent stint
in prison.
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The court found that Clay had committed the alleged violations. In
recommending a sentence, defense counsel told the court that Clay had admitted an
addiction "related to younger individuals," specifically, "prepubescent girls" from
ages twelve to sixteen. Defense counsel also agreed with the government that the
child erotica Clay possessed was "a huge flag," and though it wasn't child
pornography, "it's probably the next step to that." The court found that Clay had
"shown a pattern of noncompliant behavior throughout" supervision. It recounted
some of Clay's history on supervised release and lamented "that we keep coming back
and you keep causing me to have an enormous concern for young, underage girls in
my community with your behavior and how you are conducting yourself." The court
then sentenced Clay to two years in prison and a lifetime of supervised release.
Clay maintains on appeal that the court abused its discretion by sentencing him
to a lifetime of supervision. He contends that he "has no history, alleged or otherwise,
of 'grooming' minors for sexual exploitation or any actual sexual 'acting out' toward
minors." The record belies his contention. The court specifically found at Clay's prior
revocation hearing, on a more than ample record, that he had displayed "classic
grooming behavior," and it was not required to wait until Clay acted out more overtly
to respond to the threat that his behavior created. The court also properly considered
the need to protect the public from Clay and deter him from committing any crimes.
See 18 U.S.C. § 3583(c), (e). He was convicted of a child-pornography offense, has
an admitted attraction to underage girls that he is unable or unwilling to control, and
has a lengthy history of violating the conditions of supervised release, including
conditions relating to his interactions with minors and his possession of pornography.
And Clay admitted that his most recent violations occurred mere months after he
commenced another revocation term. Cf. United States v. Phillips, 785 F.3d 282,
283–84 (8th Cir. 2015). Clay's case is meritless. The case for having Clay under
lifetime supervision is manifest. We detect no abuse of discretion here.
Affirmed.
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