United States v. Ruth Kane

1 The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3155
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United States of America, *
*
Plaintiff – Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Arkansas.
*
Steven James Maggard, * [UNPUBLISHED]
*
Defendant – Appellant. *
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Submitted: April 15, 2011
Filed: April 28, 2011
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Before LOKEN and MURPHY, Circuit Judges, and JARVEY,1 District Judge.
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PER CURIAM.
Steven James Maggard pled guilty to transferring obscene material to a minor
in violation of 18 U.S.C. § 1470. The district court sentenced him on September 16,
2010 to thirty months to be followed by three years of supervised release with
specified conditions. Maggard asserts that the written judgment issued the next day
did not conform to the court's oral sentence in respect to three conditions of his
supervised release. He also objects to the substance of one of those conditions.

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Maggard points out three inconsistencies between the court's oral sentence and
the written judgment. First, the district court ordered at sentencing that Maggard
"shall comply with the requirements, if any, by the Arkansas sex offender law which
may be applicable to him in light of his conviction in this case." The written judgment
stated that Maggard "shall comply with any Arkansas sex offender registration
requirement." Second, the court orally ordered that Maggard "shall submit, during the
three-year period of supervised release, to any means utilized by the United States
probation officer to track his whereabouts or location at any time if and when that is
deemed necessary by the probation office" (the tracking condition). The written
judgment stated that he "shall submit to any means utilized by the U.S. Probation
Office to track his whereabouts or location at any time".
The third inconsistency identified by Maggard relates to a condition restricting
his use of the internet (the internet condition). At sentencing, the court ordered that:
[Maggard] shall not access the internet for any unlawful purpose,
including, but not limited to, the type of activities that are shown to have
been conducted by him by utilization of a cell phone in that connection,
and this prohibition is to any electronic device that will provide internet
access, whether it be a cell phone, iPad, laptop computer, desktop
computer, or any type of computer means that has the capability of
connecting with the internet.
The written judgment stated more broadly that Maggard "shall not have access to an
internet-connected computer, cell phone, or other device with internet capabilities
without prior approval by the U.S. Probation Office and for a justified reason not
involving illegal activity."
Thus, the written internet condition of supervised release is more restrictive
than that announced at sentencing, and the other two conditions under scrutiny vary
slightly in form. When "an oral sentence and the written judgment conflict, the oral
sentence controls." United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008); see

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United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994) ("The oral pronouncement
by the sentencing court is the judgment of the court."). The government does not
object to Maggard's request to modify the written judgment to conform with the
court's oral pronouncements. We therefore should remand the matter to the district
court for that purpose. See United States v. Durham, 618 F.3d 921, 945 (8th Cir.
2010).
Maggard additionally challenges the substance of the tracking condition. We
reverse such a condition only for an abuse of discretion and afford the district court
"wide discretion in imposing conditions on a defendant's supervised release so long
as they meet the requirements of 18 U.S.C. § 3583(d)." United States v. Boston, 494
F.3d 660, 667 (8th Cir. 2007). When explaining its imposition of the tracking
condition, the district court stated that it wanted to ensure that Maggard would remain
in Arkansas because he was required to comply with Arkansas sex offender
registration rules. As the record reflects, the court had reasons to doubt whether
Maggard would remain in Arkansas, including the fact that he had lived outside of the
state for most of his life. We therefore conclude that the district court did not abuse
its discretion by ordering that the probation office track Maggard's whereabouts
during his supervised release.
Accordingly, we affirm the imposition of the tracking condition and remand the
case to the district court so that it may conform the written judgment to the court's oral
pronouncements in respect to the three varying conditions of supervised release.
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