United States v. Shannon Smalley ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2665
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United States of America
Plaintiff - Appellee
v.
Shannon Smalley
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: March 24, 2021
Filed: April 8, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Shannon Smalley was released to a term of supervised release after being in the
custody of the Bureau of Prisons for a conviction for receipt and distribution of child
pornography under 18 U.S.C. §2252(a)(2). Smalley’s supervision was revoked on
July 16, 2020, and he was sentenced to six months in prison to be followed by a five-
year term of supervision. The district court1 reimposed prior modified conditions of
supervision and imposed four new conditions of supervision. Smalley appeals.
In counseled and pro se briefs, Smalley challenges both the new term of
supervised release, and the new conditions of supervised release. Smalley also raises
pro se challenges concerning the constitutionality of a revocation term of
imprisonment imposed without a trial, the reimposed conditions of supervision, the
factual basis for the violation underlying the revocation, the legality of the search
resulting in the discovery of a cell phone in his vehicle, the propriety of images
located on the phone, and counsel’s representation.
During the revocation hearing, the parties jointly recommended a revocation
sentence of six months in prison followed by five years of supervised release, and the
district court adopted the recommendation and imposed the recommended sentence.
Smalley’s recommendation that the court impose the sentence actually imposed
forecloses a challenge to the reasonableness of the supervised release term. See
United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (“A defendant who
explicitly and voluntarily exposes himself to a specific sentence may not challenge
that punishment on appeal.”). And, Smalley’s challenges to his prison sentence itself
are now moot in light of his January release. See United States v. Hill, 889 F.3d 953,
954 (8th Cir. 2018).
As to the new conditions of supervised release, the record shows that the
district court did not plainly err in imposing them. See 18 U.S.C. § 3583(e)(2)
(authorizing district court to modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the term of supervised
release); United States v. Wiedower, 634 F.3d 490, 496 (8th Cir. 2011) (standard of
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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review); United States v. Thompson, 653 F.3d 688, 691, 693-94 (8th Cir. 2011)
(supervised release conditions must be reasonably related to 18 U.S.C. § 3553(a)
factors, involve no greater deprivation of liberty than reasonably necessary, and be
consistent with policy statements issued by Sentencing Commission).
The remainder of Smalley’s pro se claims present no basis for reversal.
Smalley’s assertions that the court misapplied any unmodified supervision conditions,
or that his conditions of supervision resulted in a “complete ban” of technology, are
rejected as lacking support in the record. Additionally, ownership over the phone
located in Smalley’s vehicle, and the propriety of any content located thereon, is
immaterial to whether Smalley violated a condition prohibiting the possession or use
of such a device; moreover, Smalley admitted to violating the condition at his
revocation hearing. Smalley failed to raise a Fourth Amendment challenge in the
district court but more importantly the exclusionary rule generally does not apply to
revocation proceedings. See United States v. Charles, 531 F.3d 637, 640 (8th Cir.
2008) (whether evidence used in revocation proceeding was obtained in violation of
Fourth Amendment was immaterial, as exclusionary rule does not apply in revocation
proceedings). We decline to address Smalley’s ineffective-assistance-of-counsel
claim on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824,
826-27 (8th Cir. 2006) (ineffective-assistance claims are best litigated in collateral
proceedings, where record can be properly developed).
Accordingly, the court affirms the judgment of the district court, and grants
counsel’s motion to withdraw.
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