United States v. Codie Fisher ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1989
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Codie Lee Allen Fisher
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: January 17, 2020
Filed: June 19, 2020
[Unpublished]
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Before KELLY, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
While on supervised release following a conviction for making a false
statement during the purchase of a firearm, Codie Lee Allen Fisher assaulted his
pregnant girlfriend. The state of Iowa filed charges against him, and the probation
office petitioned to revoke his supervised release. The district court1 granted the
petition and sentenced him to 24 months in prison followed by additional supervised
release. Fisher appeals, arguing that the court erred by sentencing him for a Grade
A violation of his conditions of release and by prohibiting contact with his girlfriend
during his new term of release. We affirm.
“The district court has the discretion to revoke supervised release if the
government proves by a preponderance of the evidence that the defendant violated
a condition of supervised release.” United States v. Boyd, 792 F.3d 916, 919 (8th
Cir. 2015) (citing 18 U.S.C. § 3583(e)(3)). We apply an abuse of discretion standard
to the court’s decision to revoke release, and review its factual findings for clear
error. Id. (citations omitted).
The district court found by a preponderance of the evidence that Fisher had
committed domestic abuse assault. See Iowa Code § 708.2A(2)(d). Because this
offense was a crime of violence punishable by a term of imprisonment exceeding one
year, the court held that Fisher committed a Grade A violation of his supervised
release. U.S.S.G. § 7B1.1(a)(1). Fisher concedes that the assault took place. But he
argues that he committed only assault causing bodily injury, Iowa Code § 708.2(2),
because he and his girlfriend were not cohabiting. See State v. Virgil, 895 N.W.2d
873, 880 (Iowa 2017) (discussing qualifying relationships for domestic abuse assault
under Iowa law). Assault causing bodily injury would only be a Grade C violation
under the Guidelines. See U.S.S.G. § 7B1.1(a)(3).
Iowa statutes do not define “cohabiting,” but the Iowa Supreme Court has held
that “whether two people were cohabiting is a question of fact for the jury” to be
resolved by considering a non-exclusive list of factors, including: (1) sexual relations
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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between the parties while sharing the same living quarters; (2) sharing of income or
expenses; (3) joint use of ownership of property; (4) whether the parties hold
themselves out as husband and wife; (5) the continuity of the relationship; and (6) the
length of the relationship. Virgil, 895 N.W.2d at 880–81.
The district court addressed these factors at the revocation hearing. It
especially credited Fisher’s own statements upon arrest that his girlfriend was
pregnant with his child, her other children consider him their father, the couple lived
together at both Fisher’s mother’s house and his girlfriend’s mother’s apartment, they
had been in a relationship for many months, and they were engaged. Fisher argues
that the court ignored or failed to adequately weigh other evidence, like his
girlfriend’s testimony at the hearing that they stayed in the same house only three
nights a week and did not share expenses or have joint ownership of property. But
the record shows that the court carefully considered the countervailing evidence.
Fisher’s girlfriend also testified that the couple spent nearly “every single day”
together and “almost every day had a sexual relationship.” Hr’g Tr. 14:14–15,
37:7–11. And the district court found that Fisher’s testimony at arrest was more
credible than his girlfriend’s hearing testimony—a determination that is “virtually
unreviewable on appeal.” United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.
2003) (citation omitted). The district court’s finding that Fisher cohabited with his
girlfriend was not clear error.
Fisher also argues that the district court erred by imposing a special condition
preventing contact with his girlfriend during supervised release because it did not
sufficiently consider a state court decision cancelling a no-contact order between the
couple, his girlfriend opposed the condition, and the condition is overly broad
because it prohibits indirect contact thereby preventing him from communicating with
his girlfriend about their child. Fisher does not claim the condition violated his
constitutional rights, so we “afford[] [the district court] wide discretion . . . and we
review a decision to impose special terms of supervised release for abuse of that
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discretion.” United States v. Hobbs, 845 F.3d 365, 367 (8th Cir. 2016) (citation
omitted). All special conditions must (1) reasonably relate to such factors as the
nature and circumstances of the offense and the defendant’s criminal history; (2)
involve no greater deprivation of liberty than reasonably necessary to promote
deterrence, public safety, and the defendant’s correctional needs; and (3) accord with
Sentencing Commission policy. See id. at 368; 18 U.S.C. § 3583(d).
Fisher’s arguments about the cancellation of the Iowa no-contact order and his
girlfriend’s opposition to the condition amount to a claim that the court weighed the
evidence differently than Fisher would like, which is not an abuse of discretion. See
United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010) (not an abuse of
discretion to “give some factors less weight than a defendant prefers”). Also,
considering Fisher’s history of criminal violence against women, his recidivism, his
attempts to influence his girlfriend’s testimony from jail in violation of a state no-
contact order, and that the offense at issue involved choking his pregnant girlfriend
until she almost lost consciousness, the court did not abuse its discretion in imposing
a condition preventing both direct and indirect contact. We agree with the district
court that Fisher showed “absolutely no respect for the law or for the safety of other
people” and his attempts “to influence [his girlfriend’s] testimony . . . show[] an
incorrigible trait . . . .” Hr’g Tr. 76:10–11, 15–16; see United States v. Wilson, 709
F.3d 1238, 1240–41 (8th Cir. 2013) (not an abuse of discretion to impose no-contact
condition where defendant’s violation of state no-contact order showed disrespect for
the law). Finally, as the district court noted, the condition preventing contact can be
amended when Fisher begins his supervised release if the probation office believes
that to be appropriate. We affirm.
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