United States Court of Appeals

For the Eighth Circuit 

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No. 23-3214

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United States of America

 Plaintiff - Appellee

v.

Jonathan Lee Sutton

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Eastern

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Submitted: April 10, 2024

Filed: June 26, 2024

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Before SMITH, WOLLMAN, and SHEPHERD, Circuit Judges. 

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SMITH, Circuit Judge.

Jonathan Lee Sutton pleaded guilty to unlawful possession of a firearm by a 

felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court imposed 

three sex-offender-related special conditions of supervised released based on its 

belief that Sutton potentially committed incest that produced a child. See Iowa Code 

§ 726.2 (defining incest). Sutton appeals these conditions, arguing that they lack a 
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lawful basis and are unsupported by the evidence. For the reasons stated herein, we 

vacate the sex-offender-related special conditions and remand. 

I. Background

On June 4 and 6, 2022, two shooting incidents occurred in Davenport, Iowa. 

Witnesses identified Sutton as the shooter. At 11:48 p.m. on June 6, 2022, police 

officers spotted a Tesla parked in front of a fast-food restaurant. They recognized 

the vehicle and knew that it was associated with Sutton. Upon noticing a marked 

police vehicle, a woman exited the restaurant, entered the Tesla, and drove away. 

Sutton walked away from the restaurant and evaded the officers.

A short time later, officers located the Tesla, abandoned in the parking lot of 

a nearby gas station. They called a K-9 unit to the scene. The canine alerted near the 

front passenger door. From outside the Tesla, officers observed ammunition on the 

floorboard. Officers had the Tesla towed to a local tow lot.

On June 7, 2022, the police department received a phone call. The tow lot 

reported that a man, whose description matched the appearance of Sutton, came to 

the tow lot and offered $1,000 cash to access the Tesla. The tow lot declined the 

man’s offer, and he left the premises.

That same day, officers obtained a warrant to search the Tesla. They executed 

the warrant and recovered a pistol inside the glove box, 13 rounds of ammunition,

two spent shell casings, and two receipts showing that the pistol had recently been 

purchased at an Illinois pawnshop. Officers contacted the pawnbroker, who provided 

video footage. The video showed that Sutton, accompanied by a woman, selected

the pistol. The woman paid for the pistol. She and Sutton later returned and took 

possession of the firearm. 

Based on Sutton’s previous felony conviction, the federal government 

obtained an indictment for unlawful possession of a firearm, in violation of 18 

U.S.C. § 922(g)(1). Sutton cooperated with the investigation and ultimately pleaded 
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guilty to the crime. The probation office prepared a presentence investigation report

(PSR). The PSR calculated an advisory sentencing range of 70 to 87 months’

imprisonment and recommended several special conditions of supervised release. 

These conditions generally related to Sutton’s anger management issues.

The government objected to the PSR. It alleged that the PSR omitted a past

incestuous relationship between Sutton and a teenaged girl (now an adult) and that 

this relationship produced a child, who now lives with a relative in a different state. 

The probation office declined to amend the PSR, responding that “the government’s 

objections appear to be commentary in nature.” R. Doc. 30, at 47.

At sentencing, the district court expressed concern that Sutton potentially

committed incest that produced a child. The court asked the parties if the child’s 

paternity was known. The parties replied that there was no proof a child existed (“no 

records of the child’s birth or anything like that”), paternity was undetermined, state 

authorities had previously investigated Sutton for incest, and the investigation was 

closed when the pregnant teenager moved to another state. R. Doc. 53, at 3–4. The 

court asked the government “to make contact with whoever has custodial care of the 

child at this time and find out whether or not they’re willing to do a paternity test 

with the child.” Id. at 5. It granted a two-month continuance.

Two months later, the parties reappeared. Based on an amended Sentencing 

Guideline, the court revised Sutton’s advisory sentence and calculated a range of 57 

to 71 months. The court asked each side to suggest an appropriate sentence. The 

government asked for 87 months, and Sutton’s attorney asked for 48 months. The 

court imposed a sentence of 71 months’ imprisonment.

The court also imposed a three-year term of supervised release. It imposed 

standard conditions and the special anger-management conditions that the probation 

office recommended. Then, the court announced its imposition of special sexoffender-related conditions based on its belief that Sutton committed incest against

a teenaged girl and thus fathered a child. These conditions include: (1) sex-offender 
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evaluation and treatment, (2) no contact with any children, and (3) no contact with 

the teenaged girl (now an adult) or her alleged child. The court provided Sutton with 

an “escape valve.” Appellee’s Br. at i. If Sutton could prove to the court that he did 

not incestuously father a child, the court would remove the sex-offender-related

special conditions.

Sutton’s attorney objected to these special conditions. The court asserted that

they are appropriate. It commented: 

Given that the allegation here is and the investigation was that 

the defendant fathered a child with [a teenaged relative] and that when 

[the Iowa Department of Health and Human Services] and when 

criminal investigators started trying to investigate that, she fled to 

another state with that child, and that the defendant has declined to take 

a paternity test for that child, I think there is probable cause to believe 

he is the father of that child based on the information that’s been 

available on that.

. . .

He can have those conditions lifted as soon as it’s established 

he’s not the child’s father, and he can arrange—make whatever 

arrangements he would like to make to have paternity testing done. If 

he doesn’t want to do that, then I’m going to assume for the safety of 

the child and the community that he fathered a child with a minor who 

he was biologically related to. That makes him extremely dangerous 

and makes him a sex offender that needs treatment and counseling.

R. Doc. 54, at 17–18.

II. Discussion

On appeal, Sutton challenges the three sex-offender-related special conditions 

that the district court imposed. He argues that these conditions lack a lawful basis 

and are unsupported by evidence in the sentencing record. We agree.
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“We review for an abuse of discretion the district court’s imposition of special 

conditions of supervised release.” United States v. Hollingshed, 940 F.3d 410, 419 

(8th Cir. 2019). The “district court[] enjoy[s] wide discretion when imposing terms 

of supervised release. This discretion, however, is not unlimited.” United States v. 

James, 792 F.3d 962, 969 (8th Cir. 2015) (internal quotation marks and citation 

omitted). “When crafting a special condition of supervised release, the 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.” United States v. Phillips, 785 F.3d 

282, 284 (8th Cir. 2015) (quoting United States v. Wiedower, 634 F.3d 490, 493 (8th 

Cir. 2011)). A finding is not sufficient unless supported by a preponderance of the 

evidence. United States v. Clark, 932 F.3d 1064, 1066 (8th Cir. 2019). 

We conclude that the district court abused its discretion. First, it used a 

probable cause standard when it found that Sutton committed incest and thereby 

fathered a child. The proper standard for judicial fact-finding at sentencing is a 

preponderance of the evidence. Id. Probable cause is insufficient. Probable cause, on 

one hand, means “a reasonable ground for belief of guilt.” Maryland v. Pringle, 540 

U.S. 366, 371 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

Preponderance of the evidence, on the other hand, “means it is more likely than not 

that an event occurred.” United States v. Soileau, 686 F.3d 861, 867 (8th Cir. 2012). 

By applying the lower standard of probable cause to the government’s allegations 

against Sutton, the district court abused its discretion. See United States v. Juwa, 508 

F.3d 694, 701 (2d Cir. 2007) (“[P]robable cause is a lower standard than 

preponderance of the evidence . . . .”). 

Second, the district court’s factual findings about Sutton’s alleged incest and 

paternity are not supported by the sentencing record. See United States v. Harrell, 

982 F.3d 1137, 1140 (8th Cir. 2020) (“[S]entencing courts may not engage in 

speculation or draw inferences unsupported by the record.”). The government

alleged that Sutton committed incest against a teenager, the teenager became 

pregnant, and she gave birth to his child. The court gave the government two months 
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to produce evidence. The sentencing record contains no evidence supporting the 

allegations. 

On appeal, the government avers that, before or during the second sentencing 

hearing, the district court took “judicial notice” of evidence outside the sentencing 

record and, based on this evidence, imposed sex-offender-related special conditions. 

See Appellee’s Br. at 7–8. Here, judicial notice is not an acceptable alternative to 

proof of the facts needed to substantiate the truth of the government’s allegations. 

When a court judicially notices a fact, the “fact must be one not subject to reasonable 

dispute in that it is either (1) generally known within the territorial jurisdiction of the 

trial court or (2) capable of accurate and ready determination by resort to sources 

whose accuracy cannot reasonably be questioned.” Cravens v. Smith, 610 F.3d 1019, 

1029 (8th Cir. 2010) (quoting Fed. R. Evid. 201(b)).1

 It is subject to reasonable 

dispute whether Sutton committed incest and fathered a child. Notoriety is absent, 

and there is no source for accurately and readily determining Sutton’s past sexual 

activity or its paternal consequences. 

If evidence pertinent to the alleged incest or child exists, then it would need 

to be placed in the sentencing record. If the government or the district court had 

evidence and did not place it in the sentencing record, then our court could not

perform its duty to provide “meaningful appellate review.” Gall v. United States, 

552 U.S. 38, 50 (2007). We assume the record before us is a complete record of the 

materials that the district court viewed and considered. Examination and use of 

extra-record materials would have been an abuse of discretion. See United States v. 

Lovelace, 565 F.3d 1080, 1092 (8th Cir. 2009) (finding error when a district court 

1

We recognize that the Federal Rules of Evidence do not apply to sentencing 

matters. See Fed. R. Evid. 1101(d)(3). Nonetheless, we believe Rule 201 accurately 

states the traditional rule for judicially noticing a fact, regardless of the context. See

Brown v. Piper, 91 U.S. 37, 42 (1875) (“Facts of universal notoriety need not be 

proved.”); see also Hoyt v. Russell, 117 U.S. 401, 404 (1886) (“It is undoubtedly 

true that judicial notice is not taken of purely private concerns, when they are not 

connected with, or necessarily involved in, a matter of a public nature . . . .”).
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“rel[ied] on information at sentencing that was not presented in advance to the 

defendant, in accordance with [Federal] Rule [of Criminal Procedure] 32”). 

Third, the district court impermissibly shifted the burden of proof from the 

government to Sutton. Our court has held that “the government bears the burden to 

justify a condition of supervised release.” United States v. Stelmacher, 891 F.3d 730, 

734 (8th Cir. 2018). The district court inverted this assignment of the burden. It 

provisionally accepted as true the government’s allegations that Sutton committed 

incest and thus fathered a child, notwithstanding the discontinued state investigation, 

the probation office’s view that these allegations were unsupported, and the 

government’s non-production of evidence after a two-month continuance. We can 

find no precedent that approves requiring a defendant to disprove the government’s 

unsupported factual allegations in order to avoid the imposition of special 

supervised-release conditions.2

The government’s specific allegations are highly disturbing and, if true, 

horrific. Nonetheless, the district court was obliged to follow the same rules that 

apply in all sentencings. 

III. Conclusion

Because the district court applied a lower standard of proof, found facts that 

are not supported by the sentencing record and are not judicially noticeable, and 

impermissibly shifted the government’s burden of proof to Sutton, we conclude that

2

We distinguish this case from United States v. Thompson, 774 F. App’x 993 

(8th Cir. 2019) (unpublished per curiam). In Thompson, we reviewed for plain error, 

not abuse of discretion. Id. at 994. There, the district court required the defendant to 

prove his paternity of an existent child whom the defendant claimed in order to 

acquire visitation rights, not to disprove his paternity of a potentially non-existent 

child whom the defendant denies in order to avoid unwanted restrictions. Id.
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the district court abused its discretion. The sex-offender-related special conditions

that Sutton appeals are vacated, and the case is remanded.

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