Submitted: November 13, 2017
from United States District Court for the District of
Nebraska - Omaha.
BENTON, SHEPHERD, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
J. Lacy was convicted of receiving and distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2). The
district court sentenced him to 60 months'
imprisonment and five years' supervised release. After
prison, he violated the conditions of release. The court
revoked the release, sentencing him to nine months'
imprisonment and five years' supervised release. He
appeals. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
December 2014, Lacy's probation officer filed a petition
for revocation, alleging six release-condition violations. In
April 2015, the officer amended the petition, adding
violations: (7) failure to timely inform his probation
officer that he was fired; and (8) unsuccessful discharge
from sexual abuse treatment. Lacy admitted violations seven
and eight. The government dismissed allegations one through
six. The court continued disposition, allowing Lacy time to
March 2016, Lacy's probation officer filed a second
petition for revocation, alleging three new violations. In
October 2016, the court held a revocation hearing. On the
government's motion, the court dismissed the second
petition, proceeding only on the admitted violations (seven
and eight). The court imposed a (government-requested)
sentence of nine months and five years of supervised release.
It reimposed the "terms and conditions of his original
supervised release" and added new conditions.
court reviews a revocation sentencing decision "using
the same standards" applied "to initial sentencing
decisions." United States v. Miller, 557 F.3d
910, 915-16 (8th Cir. 2009). "Absent an abuse of
discretion, " this court "will not disturb a
sentence imposed within the bounds of 18 U.S.C. §
3583(e), the statutory provision detailing parameters for
modification or revocation of supervised release."
United States v. Holmes, 283 F.3d 966, 968 (8th Cir.
admits he violated the conditions of supervised release. But
he believes the court abused its discretion by rejecting
"a 180-day public law placement, " arguing that the
"sentence of incarceration interrupts [his] progress
without significantly advancing the other § 3553(a)
goals." At the revocation hearing, Lacy's counsel
said that the government's recommendation of nine
months' imprisonment and five years' supervised
release was not "unreasonable." The district court
Well, I'm considering the defendant's progress. And I
appreciate the things that he's noted about the progress
he's made with his substance abuse issues and the fact
that he has been engaged in some gainful employment.
But there is certainly a pattern of the defendant not being
in compliance with conditions of his supervised release and
not working with the probation officer and not following
directions. And failure to register as a sex offender for his
place of residence is also a concern. Also there is a pattern
of the defendant being given many opportunities to comply and
failing to comply.
So I think that the recommendation by Probation is
well-reasoned. I will impose a term of nine months'
incarceration to be followed by five years of supervised
district court thus acknowledged Lacy's progress but
properly found it outweighed by the § 3553(a) factors.
See 18 U.S.C. § 3553(a) (requiring
consideration of "the history and characteristics of the
defendant" and "the need for the sentence
imposed" to "afford adequate deterrence to criminal
conduct" and "protect the public from further
crimes of the defendant"). It did not abuse its
discretion in sentencing him within the guidelines. See
United States v. Ahlemeier, 391 F.3d 915, 923 (8th Cir.
2004) (affirming a nine month sentence for a defendant
convicted of child pornography who violated conditions of
release by failing to participate in treatment).
asserts his "conditions of release are unusually
restrictive." "A sentencing judge is afforded wide
discretion when imposing terms of supervised release."
United States v. Crume, 422 F.3d 728, 732 (8th Cir.
2005). Still, conditions of supervised release "must
meet the requirements of 18 U.S.C. § 3583(d)."