Date: 01-18-2018

Case Style:

Case Number: 16-4088

Judge: Melloy

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Southern District of Iowa (Scott County)

Plaintiff's Attorney: Melisa Kay Zaehringer

Defendant's Attorney: Terence L. McAtee - FPD

Description: Defendant Ted Howard Fulk pleaded guilty to one count of failure to register
as a sex offender in violation of 18 U.S.C. § 2250, his fourth conviction related to
registry requirements. The district court 1 sentenced him to thirty-seven months’
imprisonment and ten years’ supervised release. His supervised release includes a
special condition requiring court approval before traveling outside of the state of
Iowa. Fulk appeals the length of supervised release and the special travel condition.
We affirm.
In July 2015, the police stopped Fulk while he was driving in Des Moines,
Iowa. Fulk identified himself as an Australian named Seth Matthew Allen. Fulk did
not have a valid driver’s license and was arrested. Fingerprinting revealed Fulk’s true
identity, including that he was a sex offender. On release, Fulk registered with the
Iowa Sex Offender Registry, but he did so under the name Seth Matthew Allen.
Shortly thereafter, police initiated a second traffic stop and arrested Fulk for
failing to comply with the sex offender registry. Law enforcement had discovered
that Fulk had been living in Mount Pleasant, Iowa, as an unregistered sex offender
since at least September 2014.
During Fulk’s sentencing hearing, the district court thoroughly reviewed his
biographical and criminal history. The district court noted Fulk had previously used
several known aliases. While his residential and employment history are largely
unknown, the district court pointed out that Fulk had lived in Georgia, Iowa,
Oklahoma, Ohio, and Tennessee. The court also took notice of Fulk’s desire to move
to the United Kingdom with his girlfriend, a British citizen.
At the time of the sentencing hearing Fulk was incarcerated at the Muscatine
County Jail. The district court noted that during his time at the jail, Fulk acquired
more than fifteen disciplinary charges. The district court also found that Fulk made
a false sexual assault claim against a correctional officer. Fulk contacted several
governmental and non-governmental agencies, at times making false claims about the
jail. The court noted that Fulk wrote a letter to his girlfriend, while his mail was
monitored, that contained troubling threats against jail employees. Accordingly, the
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district court expressed a need to have “some consistent longevity in who is keeping
an eye on him.”
I. Ten-Year Term of Supervised Release
Fulk contends that the ten-year term of supervised release is unreasonable. We
review the reasonableness of his sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Additionally, where a
district court imposes a sentence within the advisory guideline range there is a
rebuttable presumption that the sentence is substantively reasonable. United States
v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009). Fulk’s ten-year term of
supervised release is well within the advisory guideline range of five years to life and
should be presumed to be substantively reasonable.
Furthermore, the sentencing court has “substantial discretion in determining
how to weigh” the statutory sentencing factors. United States v. Morais, 670 F.3d
889, 893 (8th Cir. 2012). “A district court is not required to recite each of the
sentencing factors under 18 U.S.C. § 3553(a), as long as the record makes clear that
they were considered.” United States v. Powills, 537 F.3d 947, 950 (8th Cir. 2008).
Here, the district court thoroughly discussed, on the record, the elements of Fulk’s
biographical and criminal history. The district court also discussed the specific
factors that supported Fulk’s term of supervised release.
Finally, Fulk argues that at sentencing both parties recommended a five-year
term of supervised release and not the district court’s sentence of ten years’
supervised release. However, “[s]entencing recommendations are just that—
recommendations—which do not bind the district court.” United States v. White, 367
F.3d 968, 970 (8th Cir. 2004). Instead, as discussed above, the sentencing court has
substantial discretion in weighing the sentencing factors and need not articulate
independent reasons for deviating from a joint recommendation. As the term of
supervised release is within the sentencing guidelines, and the district court more than
sufficiently considered the § 3553(a) factors, we find the ten-year term of supervised
release to be reasonable.
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II. Special Travel Condition
Fulk appeals the special travel condition included with the terms of his
supervised release. The special travel condition provides “[t]he defendant is not
permitted to travel outside the state of Iowa during his term of supervision without
further order of the Court.” Generally, “[w]e review the district court’s imposition
of special conditions for abuse of discretion.” Morais, 670 F.3d at 895. Under 18
U.S.C. § 3583(d), a district court has broad discretion to impose special conditions,
as long as the conditions satisfy all three statutory requirements. 670 F.3d at 895. At
issue are the first two requirements, specifically, whether the special travel condition
(1) is “reasonably related to the sentencing factors set forth in§ 3553(a),” and (2)
“involve[s] no greater deprivation of liberty than is reasonably necessary for the
purposes set forth in § 3553(a).” Id. To determine whether a special condition
satisfies these requirements, the court must make an “individualized inquiry” into the
facts and circumstances to avoid categorical sentencing and must make sufficient
findings on the record to be statutorily compliant. Id.
First, the special travel condition is sufficiently related to the statute’s
sentencing factors to satisfy the reasonable-relation requirement. Special conditions
are reasonably related to the statutory sentencing factors if they are “tailored to ‘the
nature and circumstances of the offense, the defendant’s history and characteristics,
the deterrence of criminal conduct, the protection of the public from further crimes
of the defendant, and the defendant’s educational, vocational, medicinal or other
correctional needs.’” United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009)
(quoting United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005)). Here, the
district court imposed the special travel condition based on the nature and
circumstances surrounding the July 2015 traffic stops and Fulk’s fourth conviction
for failing to register as a sex offender. The district court tailored the special travel
condition to Fulk’s residential history, his recent actions in the Muscatine County
Jail, and the potential risks posed by his future travel plans. The district court made
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detailed findings, on the record, and did so in a manner that was specific to Fulk as
an individual, rather than Fulk as a member of a class of individuals.
Under the second factor, a condition of supervised release is statutorily
permissible as long as the condition does not involve a greater deprivation of liberty
than is reasonably necessary to deter criminal conduct, to protect the public, and to
provide the defendant with necessary care, treatment, and training. See 18 U.S.C. §§
3583(d)(2) & 3553(a)(2)(B)-(D). See also Morais, 670 F.3d at 896. In United States
v. Ringgenberg, we concluded that the district court did not abuse its discretion in
imposing a special travel condition prohibiting travel within forty-five miles of Sioux
City or Fort Dodge, Iowa, without prior approval of the probation office. 494 F.
App’x 685, 686 (8th Cir. 2012) (per curiam). We held that the district court did not
abuse its discretion in finding that the special travel condition was reasonably
necessary to protect the public, satisfying the second factor of 18 U.S.C. § 3553(a).
Id.
Similarly here, we find that the district court did not abuse its discretion in
including the special travel condition in Fulk’s supervised release. A review of the
record shows that the district court identified public safety concerns, including Fulk’s
history of evading registry requirements, using false names, and lying to law
enforcement officers. The court also noted concern about Fulk’s behavior at the
Muscatine County Jail, including the letters that contained a threat against jail
employees and false claims about the jail. Fulk also made a false sexual assault
accusation against a correctional officer. Based on these facts, the district court could
reasonably question whether Fulk would adhere to his registration requirements
without the special travel condition.
Fulk contends that the special travel condition involves a greater deprivation
of liberty than is reasonably necessary because the special travel condition is
redundant. Unchallenged, standard conditions of his supervised release include
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requirements that he provide notice to the probation office at least ten days before a
change in residence or employment and that he cannot leave the Southern District of
Iowa without the permission of the court or probation office. While there is potential
geographical overlap between these standard conditions and the special travel
condition, the district court expressed a specific need to have “some consistent
longevity in who is keeping an eye on him.”
Further, Fulk argues the special travel condition is overly broad. “A special
condition of supervised release is only unconstitutionally overbroad if its overbreadth
is real and substantial in relationship to its plainly legitimate sweep.” United States
v. West, 829 F.3d 1013, 1020 (8th Cir. 2016) (quoting United States v. Thompson,
653 F.3d 688, 695 (8th Cir. 2011)). Fulk cites cases that discuss, at some length, the
elements of overly broad special conditions. Based on the facts at hand and the
district court’s reasoning, as described above, we do not find those cases to be
inconsistent with the special travel condition in this case. See generally United States
v. Deatherage, 682 F.3d 755, 764 (8th Cir. 2012).
Finally, we expect the district court will not arbitrarily refuse approval of
Fulk’s request to travel outside of the state of Iowa when appropriate safeguards are
available. As discussed above, the record indicates that the district court balanced
the need to encourage adherence to the registry requirements with a potential
deprivation of liberty. Therefore, we find no abuse of discretion by the district court
in imposing the special travel condition.

Outcome: Accordingly, we affirm the judgment of the district court.

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Defendant's Experts:

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