1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2410

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Kenny Eugene Smart, *
* Appellant. *

___________ Submitted: November 15, 2006 Filed: December 29, 2006

___________ Before MURPHY, ARNOLD and BENTON, Circuit Judges.

___________ ARNOLD, Circuit Judge. Kenny Smart pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court 1 sentenced him to 211 months' imprisonment and imposed special c onditions of supervised release designed to rehabilitate sex offenders and protect the community. Mr. Smart appeals the imposition of these special conditions of supervised release. We affirm.-2- I. We have previously held that senten cing judges are afforded "wide discretion when imposing terms of supervised release." United States v. Behler , 187 F.3d 772, 778 (8th Cir. 1999). "A sentencing j udge may impose conditions on supervised release if (1) the conditions are reasonabl y related to [certain] sentencing factors identified in 18 U.S.C. § 3553(a); (2) the c onditions do not deprive the defendant of liberty to a greater degree than is reas onably necessary; and (3) the conditions are consistent with any rele vant policy statements by the Sentencing Commission." See United States v. Conelly , 451 F.3d 942, 945 (8th Cir. 2006); see also 18 U.S.C. § 3583(d). We review the district court's imposition of special conditions of supervised release for an abuse of discretion. United States v. Cooper , 171 F.3d 582, 585 (8th Cir. 1999).

Mr. Smart argues that the district court abused its discretion in imposing conditions of supervised release having to do with sexual offenses because they are not "reasonably related" to the considerati ons in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C. § 3583(d)(1); United States v. Mickelson , 433 F.3d 1050, 1056 (8th Cir. 2006). In other words, Mr. Smart contends that the special conditions have no reasonable relationship to "the nature and circumstances" of his offense and his "history and characteristics," or to the need to deter crime, to protect the public from any further crimes he may commit, and to provide him with training, medical care, or other correctional treatment. See 18 U.S.C. §§ 3553(a), 3583(d)(1).

The special conditions of supervised re lease to which Mr. Smart objects include requirements that he "participate in and fo llow the rules of sex offender treatment as directed by the Probation Office," that he "submit to clinical polygraph testing whenever so directed by th e Probation Office," and that he "comply with all sex offender laws for the state in which" he resides. The c onditions also say that "[s]ex offender assessments and treatment shall be conducted by therapists and polygraph examiners approved by the Probation Office," and that "[i]f polygraph results reveal-3- possible new criminal behavior this w ill be reported to th e appropriate law enforcement and related agencies afte r obtaining approval from the Court."

Mr. Smart argues that our decision in United States v. Scott , 270 F.3d 632 (8th Cir. 2001), requires us to reverse the districtcourt's imposition of conditions of release in this case. In Scott , id. at 634-36, we held that a district court's imposition of "special conditions of sex offenders" on a defendant who pleaded guilty to armed bank robbery was an abuse of discreti on. We believe, however, that Scott is distinguishable from the present case.

The defendant in Scott had previously been convicted of a sexual offense, but no sex offender-related conditi ons were imposed on him in connection with his sentence for that conviction. Nor were such special conditions imposed at his sentencing for the armed bank robbery. Itwas not until the second time that the defendant violated the conditions of his s upervised release for the bank robbery crime – fifteen years after the sexual offense – th at the court took into account the previous sex offender conviction in imposing th e special sex offender conditions. Id. at 633-34, 636. The special conditions imposed in Scott were also highly restrictive of the defendant's liberty. They prohibited him from contac ting children under the age of eighteen, from working where he had "acce ss" to children younger than eighteen, from "loiter[ing]" within 100 feet of places frequented by children under the age of eighteen, from possessing "stimulating or sexually oriented material," and from maintaining a post office box or other private mail box. Id. at 634. We thus held that "the conditions are not reasonably relate d to the current offense for which [the defendant] was sentenced" and th at "the special conditions seem unlikely to serve the goals of deterrence or public safety, since the behavior on which the special conditions are based, though reprehensible, has ceased." Id . at 636.

Here, Mr. Smart's sexual offenses were much closer in time to the imposition of special sex offender conditions of supervis ed release. According to the presentence-4- investigation report (the relevant factual recitations of which the district court adopted without objection), Mr. Smart was arrestedin 1999 for rape and aggravated sodomy in Decatur, Georgia. As a result of th is arrest, Mr. Smart pleaded guilty to an amended charge of aggravated assault and was required to co mplete sex offender treatment. An arrest warrant still remain s active for Mr. Smart's violation of his probation for this crime. The presenten ce investigation report also notes that Mr. Smart was referred to juve nile court in 1987 for sec ond degree sexual abuse. We further observe that Mr. Smart's conditions of supervised release do not restrict his personal liberty in the same manner as the conditions imposed in Scott

.

We do not believe that the district court abused its discretion in imposing the special conditions relating to sex offenders in the present circumstances. We reject "conditions of release that were imposed w ithout any evidence of their need and were not reasonably related to deterrence, pr otecting the public, or providing necessary training or correctional treatment." United States v. Camp , 410 F.3d 1042, 1045 (8th Cir. 2005). We have, however, upheld speci al conditions of supervised release not directly related to the offense for which the defendant is being sentenced where the special conditions are related to anothe r offense that the defendant previously committed. See, e.g. , id. at 1046. Given that Mr. Smart's criminal history includes two sexual abuse offenses, that he was s till on probation for the latest sexual abuse offense at the time that he committed the present offense, and that he still has an outstanding warrant for a probation violation on the latest sexual abuse offense, we conclude that the district court's imposition of special conditions of supervised release related to sex offenders was reasonabl y related to Mr. Smart's history and characteristics and the need to prot ect the public from further crimes.-5- II. Mr. Smart also argues that the districtcourt improperly de legated authority to the probation office to determine the manner of imposing his special conditions of supervised release. Mr. Smart specifically refers to the court's statement during sentencing, that "obviously these cond itions are imposed so that probation is authorized to do these things, but probation may find it unnecessary to do some of these things, depending upon what the circumst ances are at that time. And it is left to their discretion to do that."

The authority of probation officers, though broad, is limited by their status as non-judicial officers. So long as the se ntencing judge retains ultimate responsibility, though, he or she may delegate limited authority to non-judicial officers. United States v. Kent , 209 F.3d 1073, 1078-79 (8th Cir. 2000); see also 18 U.S.C. § 3603.

In Kent , we held that the sentencing cour t improperly delegated authority over the terms of the defendant's supervised rel ease to the probation officer. In that case the sentencing court said that the proba tion officer would decide whether the defendant would have to a ttend psychiatric counseling during supervised release. Upon being asked whether th e defendant could file a motion to reconsider if he disagreed with the probation officer's decision, the sentencing court responded that it "hoped it would not be 'riding herd' in the probation officer's decision to require [the defendant] to undergo psychiatric treatme nt." Because this response could be interpreted as giving the probation officer final authority over a condition of supervised release, we held that the c ourt had improperly dele gated its authority. Id. We have, however, upheld a district court' s delegation of authority where the court gave no indication that it "would not retain ultimate authority over all of the conditions of [the defendant's] supervised release." Mickelson , 433 F.3d at 1057; Conelly , 451 F.3d at 945.-6- The district court here recognized that "it will be some time, of course, before Mr. Smart will actually be dealing with the nature of these conditions," indicating only its acknowledgment that certain of its special conditions may not be necessary at the time of Mr. Smart's release from prison fifteen years after the conditions were imposed. We detect no error because the district court' s statements do not signal an abdication of ultimate authority over Mr. Smart's conditions of supervised release.

For the reasons stated above, we affirmthe sentence of the district court.

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