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United States v. Newell

United States Court of Appeals, Eighth Circuit

February 12, 2019

United States of America Plaintiff - Appellee
v.
Nathan Daniel Newell Defendant-Appellant

          Submitted: November 15, 2018

          Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before BENTON, BEAM, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         Nathan 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[1] 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.

         I. Background

         In 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.

         In 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.

         At the 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.

         The 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."

         Newell argues that the district court erred in finding two supervised release violations and abused its discretion in imposing Special Conditions 2 and 5.

         II. Discussion

         We 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 ...


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