United States v. Garrett Kelsey ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1689
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Garrett Kelsey
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 19, 2022
Filed: November 1, 2022
[Unpublished]
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Before GRUENDER, MELLOY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Garrett Kelsey’s supervised release was revoked and he was sentenced to one
year of imprisonment followed by one year of supervised release. He appeals the year
of supervised release as unreasonable. We affirm.
Kelsey pled guilty to interstate transmission of a threat to injure a person. The
Guidelines range for the original crime was eight to fourteen months’ imprisonment.
The statutory maximum was five years of imprisonment and three years of supervised
release. He was sentenced to eight months of imprisonment followed by three years
of supervised release. He was released on April 23, 2021.
In February 2022, a United States probation officer reviewed computer
monitoring history and verified that Kelsey had visited websites suggestive of child
pornography. When the officer confronted Kelsey with the search history Kelsey said
he “just click[ed] through some stuff.” The officer asked Kelsey to turn over his cell
phone for more examination. Kelsey reported that he did not know where his cell
phone was and it must have been stolen. Video footage showed that Kelsey left the
residential reentry center with his cell phone to report to the probation office that day.
The last GPS point from Kelsey’s cell phone was January 14, 2022, indicating the
GPS service had been manually disabled. The phone was not located.
The district court1 found by a preponderance of the evidence that Kelsey
violated conditions of supervised release, including: failure to follow residential
reentry center rules, failure to allow search, failure to truthfully answer inquiries,
failure to allow computer monitoring, and a new law violation, namely activities
relating to material involving the sexual exploitation of minors (18 U.S.C.
§ 2252A(a)(5)(B) and 18 U.S.C. § 2252A(b)(2)). The resulting Guidelines range was
six to twelve months’ imprisonment. Probation recommended, and the court ordered,
one year of imprisonment and one year of supervised release.
Kelsey appeals the year of supervised release as unreasonable. Kelsey does not
contest that conditions of supervised release were violated, nor does he allege that a
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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procedural error was made. Kelsey only objects to the year of supervised release after
the prison term, alleging it punishes him for an uncharged offense and does not
further the goals of 18 U.S.C. § 3583(e). “We review the reasonableness of a
revocation sentence under the same deferential abuse-of-discretion standard that
applies to initial sentencing proceedings.” United States v. Elbert, 20 F.4th 413, 416
(8th Cir. 2021). The district court’s finding that Kelsey violated his terms of
supervised release was not clearly erroneous, and the in-range revocation sentence
was substantively reasonable. United States v. St. Claire, 831 F.3d 1039, 1043 (8th
Cir. 2016) (“A sentence within the Guidelines range is accorded a presumption of
substantive reasonableness on appeal.”).
Kelsey also argues that the district court improperly considered a new law
violation that had not been found by a jury. A district court, however, is allowed to
consider a violation it finds by the preponderance of the evidence. United States v.
Staten, 990 F.3d 631, 635 (8th Cir. 2021). This includes new law violations that have
not been found beyond a reasonable doubt by a jury. See United States v. Eagle
Chasing, 965 F.3d 647, 650 (8th Cir. 2020). The district court appropriately
considered the new law violation as part of the sentencing process and “was under no
obligation to weigh it the way that [defendant] would have preferred.” Id. at 654.
We affirm the judgment of the district court.
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