United States of America v. Jennifer Patricia Gresham

United States Court of Appeals
For the Eighth Circuit
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No. 16-3524
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jennifer Patricia Gresham
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: June 5, 2017
Filed: July 25, 2017
[Unpublished]
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
After Jennifer Gresham’s supervised release was revoked, the district court1
sentenced her to three months’ imprisonment and two additional years of supervised
The Honorable Linda R. Reade, United States District Judge for the Northern1
District of Iowa.

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release, with a special condition requiring her to live in the Northern District of Iowa.
She appeals this special condition, and we affirm.
In 2011, Gresham pleaded guilty to bank fraud and aggravated identity theft.
She was sentenced to 24 months’ imprisonment with a five-year term of supervised
release. The district court permitted her to reside in California while serving her
period of supervised release. In 2016, the court determined that Gresham had
violated the terms of her supervised release by failing to: (1) keep up with her
restitution payments, (2) answer her probation officer’s inquiries truthfully, (3)
participate in mental health treatment, (4) report to her probation officer when
directed, (5) follow her probation officer’s instructions, and (6) abstain from using
methamphetamine. As a result, the court revoked her supervised release, sentenced
her to three months’ imprisonment, and imposed an additional two-year term of
supervised release.
As a condition of her second supervised release term, the district court required
that Gresham reside in the Northern District of Iowa, instead of in California where
she had primary custody of her children, one of whom will still be a minor during her
term of supervised release. The district court explained that it “likes to work with
offenders who are not meeting their obligations under [its] orders, [and] give them a
second chance, but if [it] can’t get her cooperation, she’s going to have to move back
here where [it] can supervise her.” The court also explained that Gresham faced
practical, logistical problems relating to her inability to travel from California to Iowa
to respond to violations of her supervised release. Finally, the district court
maintained that the Eastern District of California’s unwillingness to supervise
Gresham was another reason why Gresham would have to reside in the Northern
District of Iowa. Gresham did not object to this special condition. On appeal,
however, she argues that we should vacate the special condition because it is a greater
deprivation of liberty than reasonably necessary. See 18 U.S.C. § 3583(d)(2).
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While “[w]e generally review the terms and conditions of supervised release
for an abuse of discretion . . . . [w]hen a defendant failed to raise a timely objection
to those terms . . . our review is only for plain error.” United States v. Ristine, 335
F.3d 692, 694 (8th Cir. 2003) (citations omitted). Gresham “must show that the
district court committed an error that is plain, that affects [her] substantial rights, and
that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011). For a plain
error to affect a defendant’s substantial rights, the defendant must show that the error
“affected the outcome of the district court proceedings.” United States v. Wallette,
686 F.3d 476, 485 (8th Cir. 2012) (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
A district court may impose a term of supervised release following
imprisonment and require—as a condition of supervised release—that a defendant
“reside in a specified place or area, or refrain from residing in a specified place or
area.” 18 U.S.C. § 3563(b)(13). “A district court has broad discretion to order
special conditions of supervised release as long as the conditions are reasonably
related to the sentencing factors set forth in 18 U.S.C. § 3553(a); . . . involve no
greater deprivation of liberty than is reasonably necessary for the purposes set forth
in § 3553(a); and . . . are consistent with any pertinent policy statements issued by the
Sentencing Commission.” Wallette, 686 F.3d at 483 (quotations and internal
alterations omitted). “A court’s findings may be based on any information other than
materially false information,” though it “may not impose conditions on the basis of
pure speculation or assumptions.” United States v. Schaefer, 675 F.3d 1122, 1124
(8th Cir. 2012) (quotations omitted). Gresham contends that the district court plainly
erred in three ways when it imposed the special condition forcing her to reside in the
Northern District of Iowa.
First, Gresham claims that requiring her to live in Iowa constituted plain error
because it restricted her contact with her minor child and was therefore a greater
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deprivation of liberty than reasonably necessary. She cites United States v. Bear, 769
F.3d 1221, 1229 (10th Cir. 2014), for the proposition that we should vacate a special
condition of supervised release when it functionally prevents a defendant from having
contact with his or her minor child. Bear, however, is more limited than Gresham
suggests because the special condition it rejected prohibited the defendant from
associating with any person under the age of eighteen, including the defendant’s three
minor children. Id. at 1224-25. Here, Gresham’s minor child is not legally restricted
from living with, visiting, or contacting her—so long as the interactions occur in the
Northern District of Iowa. Thus, Gresham’s argument does not compel reversal, and
we find no plain error here.
Second, Gresham contends that the district court plainly erred in imposing the
special condition because her ex-husband is not a suitable guardian and there is no
evidence that he is able or willing to care for their minor child. Thus, she argues that,
because only she can care for her minor child, the special condition allegedly imposed
a greater deprivation of liberty than was reasonably necessary. We disagree. The
district court noted that the father had visitation rights and formerly took care of the
minor child when Gresham “was arrested initially after traveling all over the country
committing these frauds.” The Presentence Investigation Report also noted that the
minor child has “been in [the] father’s full-time custody since the defendant’s arrest.”
The court therefore had a proper basis to find that Gresham’s ex-husband could
suitably care for their children, and, as a result, this argument also fails to convince
us that the district court plainly erred in imposing the special condition.
Third, Gresham argues that the district court plainly erred because its “primary
reason” for imposing the special condition was a mistaken belief that the Eastern
District of California’s probation office was unwilling to supervise Gresham. As a
result, she alleges that the special condition was a greater deprivation of liberty than
reasonably necessary. Again, we are unpersuaded. Gresham claims that the Eastern
District of California’s probation office did not express an unwillingness to supervise
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her. According to Gresham, the probation office simply was unwilling to assume
jurisdiction to institute revocation proceedings against her because, as she argues,
“the violations were not viewed as sufficiently serious by that office.” However, she
failed to present any evidence—such as an affidavit from the probation
office—attesting to its willingness to supervise her. Without more, she has failed to
demonstrate that the district court erred—let alone plainly or obviously so—in
finding that the Eastern District of California’s probation office would be unwilling
to supervise her. See Olano, 507 U.S. at 734 (holding that an error is “plain” when
it is “clear” or “obvious.”).
Furthermore, even assuming that the district court was mistaken, and that this
error was plain, Gresham has not shown that her substantial rights were affected. In
addition to finding that the Eastern District of California’s probation office was
unwilling to supervise Gresham, the district court explained that Gresham faced
practical, logistical problems relating to her inability to travel to Iowa to respond to
violations of her supervised release terms. More importantly, the record indicates that
Gresham was allowed to serve her first supervised release term in California but
failed to comply with the conditions. The district court noted that “maybe [Gresham]
needs to come back to Iowa and go into a residential reentry center where we can
make sure she gets employment, starts paying on her restitution, stops using drugs,
and kind of makes a smoother transition.” We find that this explanation demonstrates
that the district court’s decision to impose the special condition was based on the
appropriate § 3553(a) factors, such as affording adequate deterrence to criminal
conduct and providing correctional treatment in the most effective manner. See 18
U.S.C. §§ 3553(a)(2)(B), (D). Thus, Gresham cannot show that the alleged mistaken
belief—that the Eastern District of California’s probation office was unwilling to
supervise her—“affected the outcome of the district court proceedings.” See Wallette,
686 F.3d at 485 (quotation omitted). As a result, the district court did not plainly err
in requiring Gresham to reside in the Northern District of Iowa.
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Accordingly, we affirm the judgment of the district court.
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