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United States v. Fulk

United States Court of Appeals, Eighth Circuit

January 11, 2018

United States of America Plaintiff- Appellee
v.
Ted Howard Fulk, also known as Seth Allen Defendant-Appellant

          Submitted: September 18, 2017

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

          MELLOY, Circuit Judge.

         Defendant Ted Howard Fulk pleaded guilty to one count of failure to register as a sex offender in violation of 18 U.S.C. § 2250, his fourth conviction related to registry requirements. The district court[1] sentenced him to thirty-seven months' imprisonment and ten years' supervised release. His supervised release includes a special condition requiring court approval before traveling outside of the state of Iowa. Fulk appeals the length of supervised release and the special travel condition. We affirm.

         In July 2015, the police stopped Fulk while he was driving in Des Moines, Iowa. Fulk identified himself as an Australian named Seth Matthew Allen. Fulk did not have a valid driver's license and was arrested. Fingerprinting revealed Fulk's true identity, including that he was a sex offender. On release, Fulk registered with the Iowa Sex Offender Registry, but he did so under the name Seth Matthew Allen.

         Shortly thereafter, police initiated a second traffic stop and arrested Fulk for failing to comply with the sex offender registry. Law enforcement had discovered that Fulk had been living in Mount Pleasant, Iowa, as an unregistered sex offender since at least September 2014.

         During Fulk's sentencing hearing, the district court thoroughly reviewed his biographical and criminal history. The district court noted Fulk had previously used several known aliases. While his residential and employment history are largely unknown, the district court pointed out that Fulk had lived in Georgia, Iowa, Oklahoma, Ohio, and Tennessee. The court also took notice of Fulk's desire to move to the United Kingdom with his girlfriend, a British citizen.

         At the time of the sentencing hearing Fulk was incarcerated at the Muscatine County Jail. The district court noted that during his time at the jail, Fulk acquired more than fifteen disciplinary charges. The district court also found that Fulk made a false sexual assault claim against a correctional officer. Fulk contacted several governmental and non-governmental agencies, at times making false claims about the jail. The court noted that Fulk wrote a letter to his girlfriend, while his mail was monitored, that contained troubling threats against jail employees. Accordingly, the district court expressed a need to have "some consistent longevity in who is keeping an eye on him."

         I. Ten-Year Term of Supervised Release

         Fulk contends that the ten-year term of supervised release is unreasonable. We review the reasonableness of his sentence "under a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007). Additionally, where a district court imposes a sentence within the advisory guideline range there is a rebuttable presumption that the sentence is substantively reasonable. United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009). Fulk's ten-year term of supervised release is well within the advisory guideline range of five years to life and should be presumed to be substantively reasonable.

         Furthermore, the sentencing court has "substantial discretion in determining how to weigh" the statutory sentencing factors. United States v. Morais, 670 F.3d 889, 893 (8th Cir. 2012). "A district court is not required to recite each of the sentencing factors under 18 U.S.C. § 3553(a), as long as the record makes clear that they were considered." United States v. Powills, 537 F.3d 947, 950 (8th Cir. 2008). Here, the district court thoroughly discussed, on the record, the elements of Fulk's biographical and criminal history. The district court also discussed the specific factors that supported Fulk's term of supervised release.

         Finally, Fulk argues that at sentencing both parties recommended a five-year term of supervised release and not the district court's sentence of ten years' supervised release. However, "[s]entencing recommendations are just that- recommendations-which do not bind the district court." United States v. White, 367 F.3d 968, 970 (8th Cir. 2004). Instead, as discussed above, the sentencing court has substantial discretion in weighing the sentencing factors and need not articulate independent reasons for deviating from a joint recommendation. As the term of supervised release is within the sentencing guidelines, and the district court more than sufficiently considered the § 3553(a) factors, we find the ten-year term of supervised release to be reasonable.

         II. Special ...


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