Submitted: November 15, 2018
from United States District Court for the Northern District
of Iowa - Cedar Rapids
BENTON, BEAM, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Newell pled guilty to possession and attempted possession of
child pornography in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2252A(b)(2). Newell's advisory
guidelines range was 87 to 108 months of imprisonment. The
district court sentenced Newell to 87 months of
imprisonment to be followed by a 5-year term of supervised
release. Newell's period of supervision began on July 25,
2017. In this appeal Newell challenges the district
court's findings relating to violations of two special
conditions of supervised release as well as the court's
imposition of certain modified special conditions. We affirm.
March of 2011, Newell pled guilty to attempted possession and
possession of child pornography after an investigator
downloaded an image from Newell's account over the
peer-to-peer file sharing client LimeWire. The district court
found that Newell had a total offense level of 29, was in
criminal history Category I, and that he had an advisory
guideline range of 87-108 months. Among the upward adjustment
from the base offense level were increases for distribution
of the child pornography, use of a computer, and possession
of material involving sadistic and masochistic conduct.
Newell was sentenced to 87 months of imprisonment to be
followed by a 5-year term of supervised release. Newell began
his period of supervised release on July 25, 2017.
April of 2018, Newell's probation officer filed a
petition to revoke Newell's supervised release. At the
revocation hearing, the court found that Newell had violated
the following conditions of supervised release: Violation 1
alleged that Newell failed to comply with his mental health
and sex offender treatment by missing a Sex Offender
Treatment Program appointment on December 20, 2017; Violation
2 alleged that Newell had contact with a child under 18 on
three separate occasions; and Violation 3 alleged that Newell
failed to truthfully answer questions from his probation
officer regarding his contacts with his uncle's grandson.
hearing, Newell's probation officer testified that Newell
described contact with a child selling Girl Scout cookies
inside a Walmart as "a little mistake." The
probation officer also testified that Newell was not
forthright with the officer about whether he had been around
his uncle's minor grandson at all or left alone with him
on two separate occasions. Newell later admitted these
contacts before and after undergoing a polygraph examination
as part of his treatment plan.
district court imposed a six-month term of GPS monitoring and
home confinement. The district court also imposed several
modified special conditions. The two that are at issue on
appeal are Special Conditions 2 and 5. Special Condition 2
requires Newell "to submit to periodic polygraph testing
at the discretion of the United States Probation Office as a
means to ensure that the defendant is in compliance with the
requirements of the defendant's supervision or treatment
program." Special Condition 5 forbids Newell from
"accessing an Internet connected computer or other
electronic storage device with [I]nternet capabilities
without the prior written approval of the United States
Probation Office and based on a justified reason."
argues that the district court erred in finding two
supervised release violations and abused its discretion in
imposing Special Conditions 2 and 5.
review a district court's modification of supervised
release conditions for an abuse of discretion. United
States v. Heidebur, 417 F.3d 1002, 1004 (8th Cir. 2005)
(citing United States v. Carlson, 406 F.3d 529, 531
(8th Cir. 2005)). "District courts are normally afforded
wide discretion in imposing terms of supervised
release." Id. (quoting United States v.
Kent, 209 F.3d 1073, 1075 (8th Cir. 2000)). A district
court's subsidiary "findings of fact as to whether
or not a violation occurred" are reviewed for clear
error. United States v. Petersen, 848 F.3d 1153,
1156 (8th Cir. 2017) (citing United States v. Boyd,
792 F.3d 916, 919 (8th Cir. 2015)).
A.Violations of Supervised Release ...