United States of America v. Nicholas Michael Jackson

United States Court of Appeals
For the Eighth Circuit
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No. 22-3666
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Nicholas Michael Jackson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 19, 2023
Filed: October 11, 2023
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
In 2013, Nicholas Michael Jackson, a native and resident of Iowa, was
convicted in the United States District Court for the District of Columbia of
possessing child pornography. He was sentenced to 120 months imprisonment and
240 months supervised release. He began supervised release in November 2020;
supervision was transferred to the Southern District of Iowa. In January 2022, the

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district court revoked supervised release after Jackson admitted to viewing
pornography on computers at public libraries in Des Moines, which violated
conditions of his supervised release and Iowa Sex Offender Registry requirements.
The court imposed a revocation sentence of 14 months imprisonment followed by 19
years supervised release.
Jackson served his revocation sentence and resumed supervised release on
November 18, 2022. Four days later, the United States Probation Office petitioned
to revoke supervised release based on three new Grade C violations: (1) possession
of an internet-capable device, (2) failure to follow directives, and (3) viewing
pornography. Jackson stipulated to committing the Grade C violations. The district
court1 revoked supervised release and imposed a revocation sentence of 24 months
imprisonment followed by 19 years supervised release. Jackson appeals, arguing the
revocation sentence is substantively unreasonable. Finding no abuse of the district
court’s substantial revocation sentencing discretion, we affirm. See United States v.
Elbert, 20 F.4th 413, 416 (8th Cir. 2021) (standard of review).
The Grade C violations at issue arose from Jackson’s purchase of a smartphone
the day he was released from custody after serving the first revocation sentence.
Probation learned of Jackson’s phone two days later and directed him to bring in the
phone. He failed to do so. The phone was then seized from Jackson’s parents’ home.
“A cursory examination was conducted on the phone which revealed an extensive
browsing history of pornography,” the titles of which indicated child pornography.
The Grade C violations, together with Jackson’s Category III criminal history,
resulted in an advisory guidelines revocation range of 5 to 11 months imprisonment.
See USSG §§ 7B1.1-4.
1The Honorable Stephanie M. Rose, Chief Judge of the United States District
Court for the Southern District of Iowa.
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At the revocation hearing, the district court began by reviewing Jackson’s
conduct on supervised release since serving his federal sentence -- five modifications
in the first ten months that included viewing pornography on residential reentry center
computers; being kicked out of the reentry center for threatening staff and attempting
to hang himself; watching pay-per-view pornography up to half of each day while on
home detention at his parents’ home; and searching for pornography on public library
computers, which resulted in the first 14-month revocation sentence.
The government asked the district court to impose a revocation sentence of 11
months imprisonment and 19 years supervised release “primarily to protect the
community at this point. We have a defendant who has repeated serious violations
of supervised release.” Defense counsel stated that Jackson still has the problem
noted at the first revocation hearing -- he is an “addicted” sex offender and needs
treatment. Rather than being treated during his prior 14 months of imprisonment,
counsel argued, he was “warehoused” at two Bureau of Prisons (BOP) facilities that
lack sex-offender treatment programming. Counsel questioned how the problem
would be addressed “if he’s sent back . . . for 11 months.” Counsel urged the court
to “[p]ut him under the protocol that he would have been under had he not violated
the term [of supervised release] on his way back from Pittsburgh to Des Moines.”
Jackson in allocution then acknowledged that he needs treatment and asked the court
not to send him back to prison because, as a sex offender, he fears for his safety in
prison and treatment in prison “doesn’t work.”
The district court stated that it “considered all of the factors under 3553(a) and
the advisory guidelines and the statutory penalties.” Jackson “comes before this
Court as a very, very high-risk offender,” the court explained. In 2002, he was
convicted in Iowa state court of “sexually abusing at least three children over a 14-
year period of time, so he is a hands-on offender of long standing.” Jackson served
two terms for violating conditions of his probation for that offense by viewing
pornography and contacting minors. He was then arrested for failing to comply with
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the Iowa Sex Offender Registry regulations four months after release from custody
before his 2013 federal prosecution for possessing child pornography. After serving
his 14-month revocation sentence, Jackson “literally within hours of being released
from prison is looking at child pornography or searching for child pornography”
while “on the bus to come back to our district for supervision. . . . He clearly is either
unwilling or unable to reform his behavior in such a way that the community is safe.”
The court then addressed Jackson’s treatment concern:
I want him to get treatment. He needs treatment. But I did not
last time function his revocation sentence and I do not this time calculate
his revocation sentence based on that need for treatment. . . . [W]hat I’m
doing in revoking him is protecting the community. That’s my goal.
Varying upward, the court sentenced Jackson to 24 months imprisonment, the
statutory maximum revocation sentence, see 18 U.S.C. § 3583(e)(3), followed again
by 19 years supervised release. Defense counsel did not agree with the sentence but
acknowledged that a two-year sentence “allows a window of opportunity for the
treatment protocol” and urged the district court to designate a BOP facility that has
sex-offender treatment programming. The court agreed to do so.
On appeal, Jackson argues that 24 months imprisonment is substantively
unreasonable because the district court “did not give the inaccessibility of
[sex-offender] treatment to the incarcerated sufficient weight.” We disagree. The
district court expressly acknowledged Jackson’s need for sex-offender treatment and
agreed to recommend that Jackson be confined in a BOP facility that has treatment
programming. The court considered the relevant 18 U.S.C. § 3553(a) sentencing
factors and carefully explained its decision to give greater weight to protecting the
community from a high-risk offender with a long criminal history that included
hands-on sexual abuse of young children, than to the possibility that the needed
treatment would be less available or less effective in prison. “Section 3553 does not
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require a court to impose a sentence that provides a defendant with needed treatment
in the most effective manner.” United States v. Waldman, 807 F. App’x 77, 79 (2d
Cir. 2020); see 18 U.S.C. § 3553(a)(2)(D).
“We have frequently upheld revocation sentences that varied upward from the
advisory guidelines range because defendant was a recidivist violator of supervised
release conditions.” United States v. Kocher, 932 F.3d 661, 664 (8th Cir. 2019)
(quotation omitted). Indeed, in United States v. Bonish, a case factually very similar
to this case, we concluded that Chief Judge Rose did not abuse her discretion by
imposing a 24-month revocation sentence on a sex offender with multiple prior
supervised release violations. No. 22-1577, 2022 WL 16844765, at *1 (8th Cir. Nov.
10, 2022) (unpublished per curiam). “On this record of repeated supervised release
violations,” we concluded, “the district court’s careful consideration of the § 3553(a)
factors was more than sufficient.” Id. We reach the same conclusion here.
The judgment of the district court is affirmed.
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