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United States v. Winston

United States Court of Appeals, Eighth Circuit

March 1, 2017

United States of America Plaintiff- Appellee
v.
John E. Winston Defendant-Appellant

          Submitted: December 12, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.

          RILEY, Chief Judge.

         John E. Winston began his term of supervised release January 15, 2016, after being incarcerated for more than 25 years. Upon recommendation from his probation officer, the district court[1] later amended Winston's supervised release to require Winston to submit his person and property to a search upon reasonable suspicion. Because we conclude the district court did not commit plain error in imposing the search condition and the search condition does not violate due process or the Ex Post Facto Clause of Article I, § 9 of the United States Constitution, we affirm.

         I. BACKGROUND

         On November 16, 1989, a jury found Winston guilty of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and four counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(B). Winston was sentenced to 365 months imprisonment and a ten-year term of supervised release. Winston was released from prison and began his term of supervised release on January 15, 2016.

         Winston's probation officer filed a status report on March 24, 2016, recommending a show cause hearing to modify Winston's conditions of supervised release to include a condition requiring Winston to submit his person and property to a search based on reasonable suspicion. The probation officer claimed the search condition was not imposed at Winston's sentencing because the court was not using such a condition at that time. In addition, the probation officer stated "[c]onsidering the history and characteristics of Winston and the nature and circumstances of the instant offense, a search condition could be essential to his effective supervision in the community." The probation officer argued the search condition would deter Winston from future crimes and promote public safety.

         At a hearing held April 4, 2016, Winston objected to the search condition as retroactive punishment in violation of the Ex Post Facto Clause. The district court responded: "I've never seen a case in almost 20 years I've been doing this now where supervision was imposed and this condition wasn't included. I don't see it as a punitive measure. I do see it as a measure that is meant to provide treatment and assistance to a person under supervision."

         The government did not offer anything other than what the probation officer included in his recommendation. The district court then ordered Winston, as an additional condition to his terms of supervision:

[S]hall submit his person, and any property, house, residence, office, vehicle, papers, computer, other electronic communication or data storage devices or media and effects to a search at any time, conducted by a U.S. Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release, failure to submit to a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

         Winston appeals, and, having appellate jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

         II. DISCUSSION

         Winston argues the district court improperly imposed the search condition because (1) under 18 U.S.C. § 3583(d), such a condition is only applicable to felons required to register under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16911, et seq.; (2) the district court violated Winston's right to due process by imposing the condition; and (3) the condition violated the Ex Post Facto Clause. Because "[d]istrict courts enjoy broad discretion in the imposition or modification of conditions for terms of supervised release, . . . we review only for abuse of discretion, " but we review de novo "[u]nderlying questions regarding compliance with the rules of criminal procedure and the provision of due process." United States v. Davies, 380 F.3d 329, 332 ...


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