United States Court of Appeals

For the Eighth Circuit

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No. 18-3716

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Bryan Lee Simpson

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Southern District of Iowa - Des Moines

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 Submitted: October 14, 2019

Filed: November 26, 2019

[Unpublished]

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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges. 

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PER CURIAM.

After pleading guilty to being a felon in possession of a firearm, Bryan Lee

Simpson was sentenced in July 2005 to 180 months imprisonment and three years of

supervised release. In July 2016, following the Supreme Court’s decision in Johnson

v. United States, 135 S. Ct. 2551 (2015), he was resentenced to time served and

commenced supervised release. His conditions were modified to require twentyhours
of community service in August 2017 and again in October 2017 following violations

of alcohol, controlled substance, and community service conditions, and for failing

to be truthful. In February 2018, he was ordered to serve a weekend in jail for

marijuana use, failure to complete community service, and providing false

information. In July 2018, he admitted a new law violation, driving while suspended. 

In September 2018, he received another weekend jail sentence and twenty hours of

community service for again using marijuana and failing to complete community

service obligations.

In December 2018, Simpson stipulated to four Grade C violations: failure to

complete community service, failure to complete a jail sentence, failure to comply

with substance abuse treatment, and a new arrest for driving while suspended and

possession of marijuana. At the revocation hearing, Probation Officer Emily

Noordhoek testified concerning the nature and circumstances of the violations. The

district court,

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expressly considering the advisory guidelines range and 18 U.S.C.

§ 3553(a) sentencing factors, revoked Simpson’s supervised release and sentenced

him to 8 months imprisonment (the bottom of the advisory range) and 52 months of

supervised release. Simpson appeals the revocation sentence.

Simpson first argues the district court abused its discretion by imposing a

substantively unreasonable revocation prison term that is greater than necessary to

achieve the purposes of sentencing. He argues that the court gave too much weight

to “the accumulation of technical violations” and failed to take account of Simpson’s

positive steps at reentering the community after serving a long sentence. We review

a revocation sentence “under the same deferential abuse-of-discretion standard that

appliesto initialsentencing proceedings.” United States v. White, 840 F.3d 550, 552

(8th Cir. 2016) (quotation omitted). Here, the district court concluded that a prison

1The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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sentence at the bottom of the advisory range was appropriate because, although

Simpson is capable of maintaining employment and supporting his family and does

not appear to be a danger to the community, two and one-half years of violations

including drug and alcohol violations and committing new law offenses warranted an

8 month prison sentence. We conclude the district court acted well within its

substantial discretion in giving substantial weight to Simpson’s “repeated failure to

comply with the conditions of his supervised release” and imposing a within-range

revocation sentence. United States v. Zoran, 682 F.3d 1060, 1065 (8th Cir. 2012).

Simpson further argues the district court abused its discretion in imposing “a

full 52 months of supervised release” when his original sentence included only 36

months of supervised release. The government explainsthat 52 months are more than

is authorized: Simpson’s initial sentence as an armed career criminal was a Class A

felony. See 18 U.S.C. § 3559(a)(1). The authorized term of supervised release was

not more than five years, even though only three years was imposed. See

§ 3583(b)(1). A revocation sentence may include a term of supervised release not

greater than the maximum term authorized for the underlying conviction, less any

prison term imposed upon revocation. § 3583(h). The district court imposed a “full”

revocation term, 60 months - 8 months = 52 months. However, when Simpson’s

initial sentence was modified to time served based upon Johnson, it was no longer a

Class A felony, and the maximum term of supervised release was reduced to three

years. §§ 3583(b)(2), (h). Thus, the government correctly concludes, a “full”

revocation term of supervised release must be limited to 36 months minus 8 months,

or 28 months. 

Accordingly, as in Zoran, 682 F.3d at 1065, we vacate the supervised release

portion of Simpson’s revocation sentence and remand with instructions that the

district court impose a supervised release term of 28 months. In all other respects, the

revocation judgment and sentence are affirmed. 

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