United States Court of Appeals

For the Eighth Circuit

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No. 18-1692

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Kenneth Robert Simpson

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: July 16, 2019

Filed: August 6, 2019

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Before BENTON, WOLLMAN, and KELLY, Circuit Judges. 

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BENTON, Circuit Judge.

Kenneth Robert Simpson directly appeals after the district court1

revoked his

supervised release for the third time, sentenced himto 24monthsin prison, reimposed

a life termof supervised release (with special conditions of supervision), and imposed

1The Honorable Rodney W. Sippel, Chief Judge, United States District Court

for the Eastern District of Missouri.
several new conditions of supervision. Having jurisdiction under 28 U.S.C. § 1291,

this court affirms.

At sentencing, Simpson challenged the 24-month sentence as “beyond

excessive” and objected to the imposition of the special conditions claiming there

were “no factual findings made as to the necessary nature of any of the conditions.” 

In his pro se brief, he again asserts the double-jeopardy, reintegration and recusal

arguments he presented in a prior appeal, and states he has no intention of complying

with the terms of release. 

Because Simpson objected at sentencing, this court reviews a revocation

sentence and the imposition of conditions for an abuse of discretion. United States

v. Fonder, 719 F3d 960, 961 (8th Cir. 2013); United States v. Wiedower, 634 F.3d

490, 493 (8th Cir. 2011); United States v. Richart, 662 F.3d 1037, 1056 (8th Cir.

2011); United States v. Miller, 557 F.3d 910, 915-18 (8th Cir. 2009). 

The district court did not abuse its discretion imposing a 24-month revocation

sentence because it properly considered the 18 U.S.C. § 3553(a) factors, and did not

overlook a relevant factor, or commit a clear error in weighing relevant factors. 

United States v. Larison, 432 F.3d 921, 922-24 (8th Cir. 2006). The sentence was

below the statutory limit. 18 U.S.C. §§ 3583(e)(3), (h), (k). Simpson’s objection to

the court reimposing old supervised release conditions amounts to an improper

collateral attack of the underlying sentence. Miller, 557 F.3d at 913. 

District courts are encouraged to provide an explanation of how the conditions

satisfy the requirements of § 3583(d), but where the basis for the special conditions

can be discerned from the record, reversal is not required. United States v.

Thompson, 888 F.3d 347, 351 (8th Cir. 2018); United States v. Poitra, 648 F.3d 884,

890 (8th Cir. 2011); United States v. Thompson, 653 F.3d 688, 691, 693-94 (8th Cir.

2011). Special Condition No. 24 requires Simpson to submit to periodic polygraph

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testing (at the discretion of the probation officer) to ensure compliance with the

requirements of his supervision or treatment. Simpson admitted he did not report to

the community corrections center or to the probation officer as required. He has

repeatedly stated that he does not intend to comply with the terms of his supervised

release, and he has repeatedly failed to comply. The record strongly supports the

imposition of this Condition. Wiedower, 634 F.3d at 494.

There was no abuse of discretion in the imposition of Special Condition No.

23, which prohibits the use or possession of audio/visual recording or producing

equipment absent written approval of the probation office. Although Simpson was

not charged with producing or distributing child pornography, the record reflects he

received at least 300 but fewer than 600 images of child pornography, all of which

were produced using photographic equipment. Pictures were used in this offense

even if Simpson did not produce or distribute the images, making this Condition

reasonably related to the offense. Simpson is not completely restricted from the use

or possession of audio/visual recording or producing equipment if he first obtains

permission from his probation office. United States v. Craig, 642 Fed. Appx. 632,

636 (8th Cir. 2016); United States v. Koch, 625 F.3d 470, 481 (8th Cir. 2010);

United States v. Ristine, 335 F.3d 692, 696 (8th Cir. 2003).

This court declinesto consider Simpson’s argumentsthat(1) supervised release

and revocation violate double-jeopardy principles and inhibit reintegration into

society, and (2) the district court judge should have recused himself. These

arguments have been considered and rejected by this court on direct appeals from

Simpson’s prior revocations. United States v. Simpson, 704 Fed. Appx. 609 (8thCir.

2017), cert. denied, 138 S. Ct. 1314 (2018); United States v. Simpson, 653 Fed.

Appx. 850 (8th Cir. 2016), cert. denied, 137 S. Ct. 318 (2016). When a court decides

a rule of law, that decision governs the same issues in subsequent stages of the case. 

Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1134-35 (8th Cir. 2007). This court

also declines to address Simpson’s newly-raised assertion that this court’s prior

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rulings never adjudicated his claims because it is no more than a collateral attack on

those prior rulings. 

The judgment is affirmed. 

* * * * * * *

KELLY, Circuit Judge, dissenting in part.

“[A] district court is given wide discretion in imposing conditions on a

defendant’s supervised release.” Poitra, 648 F.3d at 889. Notwithstanding this

discretion, a district court may order a special condition of supervised release only if

that condition is “reasonably related” to certain factors enumerated in § 3553(a),

“involves no greater deprivation of liberty than is reasonably necessary” for the

purposes of certain § 3553(a) factors, and “is consistent with any pertinent policy

statementsissued by the SentencingCommission.” 18 U.S.C. § 3583(d). Given these

limitations, “when imposing a special condition of supervised release, a ‘district court

must make an individualized inquiry into the facts and circumstances underlying a

case and make sufficient findings on the record so as to ensure that the special

condition satisfies the statutory requirements.’” Poitra, 648 F.3d at 889 (emphasis

added) (quoting Wiedower, 634 F.3d at 493). We have repeatedly held that the

failure to make individualized findings constitutes error. See, e.g., United States v.

Osman, No. 18-1502, 2019 WL 3022331, at *3 (8th Cir. July 11, 2019) (“Failure to

make these particularized findings is plain error.”); Poitra, 648 F.3d at 889. And we

have stressed that requiring individualized findings helps to “ensure that each

condition of supervised release complies with the statutory requirements that it be

both reasonably necessary and reasonably related to the rehabilitative process”;

“instill respect for judicial proceedingsin both the defendant and the general public”;

and “allow for meaningful appellate review.” Poitra, 648 F.3d at 889–90.

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Yet, even after Simpson objected at the first opportunity to the lack of

individualized findings, the district courtfailed to make any. Today the court excuses

the district court’s error on the ground that the basis for Special Condition 23 can be

discerned from the record. I disagree. We have previously upheld a similar condition

where aggravating factors made it “reasonable to believe” that the defendant “likely”

would photograph and exchange images of minors. Ristine, 335 F.3d at 695–96. For

example, in Ristine, on plain-error review, we upheld a restriction on a defendant’s

use of photographic equipment where he “possessed thousands of photos of [minors,]

expressed interest in having sexual relations with [minors],” and had sold

subscriptions to pornographic images. Id. Likewise, in Koch, we upheld a similar

restriction where the overall record showed that the defendant was a “sophisticated

computer user” who had done “more than merely possess child pornography.” 625

F.3d at 481–82. 

Here, in contrast, I discern nothing from the record that would support a ban

on audio/visual recording or producing equipment—including, by its plain language,

a cell phone equipped with a camera. Simpson is not accused of producing child

pornography or exchanging it with others, and the Presentence Investigation Report

(PSR) includes no information from which it would be reasonable to believe that the

restriction is justified. To the contrary, the PSR stated expressly that Simpson’s

conduct “was limited to the receipt or solicitation of material involving the sexual

exploitation of a minor; and the defendant did not intend to traffic in, or distribute,

such material.” (emphasis added). I respectfully disagree with the court’s view that

because someone other than Simpson used photographic equipment to create the

images that Simpson possessed, the condition is necessarily justified in Simpson’s

case. As we have explained, the district court “must be careful to conduct an inquiry

‘on an individualized basis,’” United States v. Kelly, 625 F.3d 516, 519–20 (8th Cir.

2010) (quoting United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006)), and “may

not impose special conditions categorically on all individuals convicted of certain

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offenses,” id. at 520. Because thisrecord lacks the necessary individualized findings,

I would vacate Special Condition 23 and remand for resentencing.

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