United States v. Joel Kimball ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3453
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Joel Edward Kimball,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Waterloo
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Submitted: September 24, 2018
Filed: January 10, 2019
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
After Joel Kimball violated the terms of his supervised release, the district
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court revoked his supervision and sentenced him to eight months’ imprisonment,
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
followed by four years of supervised release. The district court also imposed a
condition that he reside in a residential reentry center for 180 days immediately after
his release from custody. Kimball appeals, challenging the substantive
reasonableness of the sentence and the condition that he reside at a reentry center.
We affirm.
In 2008, Kimball pleaded guilty to one count of failure to register as a sex
offender. See 18 U.S.C. § 2250(a). He served a term of twenty-four months’
imprisonment and commenced a ten-year term of supervised release. Twice before
this proceeding, the district court had revoked Kimball’s supervised release. In 2014,
Kimball violated his conditions of release by using a controlled substance. In 2015,
he violated rules at a residential reentry center and failed to follow the instructions
of two probation officers. In both instances, the court sentenced Kimball to eight
months’ imprisonment followed by four years of supervised release, and included a
condition requiring that Kimball live at a residential reentry center for up to 120 days
upon his release.
In September 2017, the probation office filed a petition to revoke Kimball’s
supervised release alleging the following violations: (1) use of alcohol, (2) failure to
submit monthly report forms to the probation office, (3) failure to participate in
substance-abuse testing, (4) failure to participate in sex-offender treatment, and (5)
use of a controlled substance. The district court found that all violations were
established by a preponderance of the evidence.
The advisory guideline sentencing range for this revocation was four to ten
months’ imprisonment. The district court, after remarking that Kimball “is an
individual who needs supervision based on his very serious criminal past,” sentenced
him to eight months’ imprisonment, followed by four years of supervised release.
Kimball asked if he could return to his apartment after he was released, but the court
demurred: “You’re going to come out through a residential reentry center.” The
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judgment imposed a special condition requiring Kimball to reside at a residential
reentry center for 180 days upon his release from imprisonment.
We review the reasonableness of Kimball’s sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007). Because
Kimball’s term of imprisonment is within the advisory guideline range, we presume
that it is reasonable. United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009).
Kimball first argues that the sentence frustrates the purpose of supervised
release. He asserts that the district court revoked his release for mainly “technical”
violations, and cites United States v. Reed, 573 F.2d 1020 (8th Cir. 1978), for the
proposition that a court’s “decision to revoke probation should not merely be a
reflexive reaction to an accumulation of technical violations of the conditions
imposed upon the offender.” Id. at 1024. But as Kimball concedes, his use of
marijuana in violation of federal law is not a “technical” violation. And we have said
that a “pervasive unwillingness” to follow a rehabilitation program and court orders
is not properly characterized as “technical.” United States v. Melton, 666 F.3d 513,
516 (8th Cir. 2012); see also United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir.
1978). The district court also acted within its discretion in rejecting Kimball’s policy
argument that incarceration is not the most effective way to address unlawful use of
marijuana. The sentence imposed is consistent with the purposes of supervised
release.
Kimball next challenges the condition that he reside at a residential reentry
center upon his release from imprisonment. He maintains that he should be permitted
to move directly to a private apartment, because he is a “low-risk” offender for whom
residential reentry is an unnecessary expenditure of federal funds. But whether or not
Kimball poses a serious risk of harm to others, his track record of incorrigibility
suggests that a structured transition from imprisonment to society is appropriate. The
district court permissibly may consider the best way to reduce the risk of recidivism,
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and “we have regularly upheld the requirement of a term in a residential reentry
center as a reasonable condition of supervised release.” Melton, 666 F.3d at 518.
The court did not abuse its discretion by including this condition.
The judgment of the district court is affirmed.
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