Submitted: September 18, 2017
from United States District Court for the Southern District
of Iowa - Davenport
SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
MELLOY, Circuit Judge.
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 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.
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.
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.
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.
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."
Ten-Year Term of Supervised Release
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
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.
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