United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1048

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brion Dodd Johnson

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

____________

 Submitted: September 10, 2014

 Filed: December 4, 2014

____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

____________

GRUENDER, Circuit Judge.

Brion Dodd Johnson appeals the GPS-monitoring condition of his supervised

release. We conclude the district court did not abuse its discretion by imposing this 1

condition, and we therefore affirm.

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa.
Johnson pleaded guilty to possession and attempted possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district

court sentenced him to 97 months’ imprisonment followed by fifteen years of

supervised release. The court revoked Johnson’s supervised release after he

committed twenty-one violations of his release conditions, including failure to

comply with sex-offender treatment, unauthorized possession of a computer,

possession of pornography, and use of illegal drugs. Finding thatJohnson committed

these violations, the court sentenced him to a second, eleven-month term of

imprisonment followed by ten years of supervised release.

The district court revoked Johnson’s second term of supervised release after

he committed another fourteen violations, including associating with someone

involved in criminal activity, failing to answer his parole officer truthfully, possessing

drug paraphernalia, possessing pornography, and using photographic equipment to

produce pornography. The court then sentenced Johnson to eleven months’

imprisonment followed by a third, eight-year term of supervised release. In addition

to the standard supervised-release conditions, the district court required thatJohnson

be subject to electronic monitoring via a global-positioning satellite system (“GPS

monitoring”) and that Johnson pay the costs of this monitoring as determined by the

United States Probation Office. Johnson asked the court to reconsider the GPSmonitoring condition. The court denied his request. Johnson now appeals.

“[S]entencing judges are afforded ‘wide discretion when imposing terms of

supervised release.’” United States v. Smart, 472 F.3d 556, 557 (8th Cir. 2006)

(quoting United States v. Behler, 187 F.3d 772, 778 (8th Cir. 1999)). The district

court has the power to impose any condition it considers to be appropriate, so long

as the condition complies with the limits set out in 18 U.S.C. § 3583(d), namely, the

condition must “(1) [be] reasonably related to the pertinent § 3553(a) sentencing

factors, (2) involve[] no greater deprivation of liberty than reasonably necessary for

the purposes set forth in § 3553(a), and (3) [be] consistent with any pertinent policy

-2-
statements issued by the United States Sentencing Commission.” United States v.

Mefford, 711 F.3d 923, 926 (8th Cir.), cert. denied, 134 S. Ct. 242 (2013). “We

review a district court’s imposition of special conditions of supervised release for

abuse of discretion.” United States v. Hobbs, 710 F.3d 850, 852 (8th Cir. 2013).

Johnson first argues that the district court abused its discretion because the

Sentencing Commission’s recommended supervised-release conditions do notinclude

GPS monitoring. However, the district court is not limited to the recommended

conditions, and it retains wide discretion to impose any condition it considers to be

appropriate so long as the condition complies with the limits set out in

18 U.S.C. § 3583(d). See United States v. Durham, 618 F.3d 921, 933-34 (8th Cir.

2010) (upholding special condition of supervised release requiring defendant

convicted of receiving child pornography to “submit to any means utilized by the

probation office to track his whereabouts or location at any time during supervised

release”).

Johnson next argues that the condition does not complywith § 3583(d) because

the § 3553 factors do not justify GPS monitoring. We disagree. When Johnson’s

attorney asked the court to reconsider the GPS condition, arguing that “none of

[Johnson’s] violations pertain[ed] to being somewhere [he was] not supposed to be,”

the court explained that the condition arose from a concern for the safety of the

community—a valid factor pursuant to § 3553(a)(2)(C). The court then referred to

Johnson’s criminal history—namely, his possession of child pornography—and his

pattern of violating his supervised-release conditions, including by producing

sexually explicit imagesin an unknown location. We also note thatJohnson had prior

convictions for second-degree murder and second-degree burglary. These facts and

this concern for community safety distinguish Johnson’s case fromthose in which we

rejected “conditions of release . . . imposed without any evidence of their need and

. . . not reasonably related to deterrence, protecting the public, or providing necessary

training or correctional treatment.” United States v. Camp, 410 F.3d 1042, 1045-46

-3-
(8th Cir. 2005) (collecting cases); cf. United States v. Baird, 276 F. App’x 691, 692

(9thCir. 2008) (vacating GPS condition and remanding because record did not permit

meaningful review or describe nature of monitoring, thus precluding court from

determining whether condition furthered goals of supervised release). Given

Johnson’s specific offense history and his record of repeatedly violating his

supervised-release conditions, we find no abuse of discretion on this basis.

Third, Johnson argues that, because he already faces multiple travel, location,

and association conditions of supervised release, GPS monitoring entails a greater

deprivation of liberty than is reasonably necessary to further the purposes of § 3553. 

We again disagree. Before imposing the GPS-monitoring condition, the district court

noted that Johnson was a serial violator of his supervised-release conditions and that

many of his new violations were similar to those he had previously committed. The

court also found that Johnson failed to comply with the directives of and be truthful

with his probation officer. In light of this record, we find no abuse of discretion

because the GPS-monitoring condition will allow the probation officer to verify

Johnson’s compliance with his location and travel restrictions during his third term

of supervised release. See United States v. Miller, 530 F. App’x 335, 338 (5th Cir.)

(per curiam) (holding GPS-monitoring condition was not a greater deprivation of

liberty than reasonably necessary because “any impairments of [the defendant’s]

privacy due to the GPS monitoring [were] outweighed by the condition’s benefits,”

which included “effective verification of compliance with the other conditions of

supervised release”), cert. denied, 134 S. Ct. 486 (2013); cf. Durham, 618 F.3d at 933

(upholding tracking condition because, among other reasons, the district court

indicated tracking was “designed to assist Durham if he was tempted to have

problems in the future”).

Finally, Johnson argues that the court improperly delegated authority to the

probation office to determine whether Johnson could pay for his GPS monitoring. 

“Conditions delegating limited authority to non judicial officials such as probation

-4-
officers are permissible so long asthe delegating judicial officer retains and exercises

ultimate responsibility.” Durham, 618 F.3d at 933 (quoting United States v.

Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006)). In determining whether a

delegation is permissible, we ask whether the court abdicated its ultimate authority. 

Smart, 472 F.3d at 560. When a court has not disclaimed ultimate authority, there is

“an assumption . . . that the probation officer will consult with the court about the

matter or, at a minimum, the court will entertain a motion from the defendant for

reconsideration of the probation officer’s initial decision.” United States v. Wynn,

553 F.3d 1114, 1120 (8th Cir. 2009).

We find that the district court’s delegation was proper because the court gave

no indication it was relinquishing its ultimate authority and the condition was

flexible, allowing the probation office to adjust the amount based on Johnson’s ability

to pay. See Mickelson, 433 F.3d at 1056-57 (upholding supervised-release condition

affording probation office discretion to track defendant’s whereabouts because

district court gave no indication it was giving up ultimate authority and condition’s

flexible nature allowed it to be tailored to defendant’s needs). Other circuits similarly

have approved delegations to the probation officer to determine the ability of the

defendant to pay for his or her release-condition costs. See United States v. Soltero,

510 F.3d 858, 864-65 (9th Cir. 2007) (per curiam) (holding that district court did not

abuse its discretion in delegating to the probation officer the authority to determine

whether defendant could pay for treatment required as a condition of release); United

States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002) (same). We thus reject

Johnson’s argument that an impermissible delegation occurred.

For the foregoing reasons, we hold that the district court did not abuse its

discretion in imposing the GPS-monitoring condition of supervised release.

______________________________

-5-