                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1978
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  John E. Winston

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                          Submitted: December 12, 2016
                             Filed: March 1, 2017
                                 ____________

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 court1 later amended Winston’s supervised release to require

      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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.”

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       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 (8th Cir. 2004). If a defendant fails to
object to a procedural error in the district court, we review for plain error. See United
States v. Alvizo-Trujillo, 521 F.3d 1015, 1018 (8th Cir. 2008).




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       In the district court, Winston objected to the search condition only on the
ground it was an ex post facto violation; thus, we review Winston’s first two claims
for plain error. Winston must show “‘(1) there was an error, (2) the error is clear or
obvious under current law, (3) the error affected [his] substantial rights, and (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” United States v. Iceman, 821 F.3d 979, 984 (8th Cir. 2016) (quoting
United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013)). “We review [Winston’s]
ex post facto claim de novo.” United States v. Carter, 490 F.3d 641, 643 (8th Cir.
2007).

       Winston first argues the search condition is only applicable to felons required
to register under SORNA. The search condition at issue here is very similar to the
condition § 3583(d) explicitly allows for felons required to register under SORNA.2
The government does not dispute Winston is not a felon required to register under
SORNA.

       There is nothing in the language of § 3583(d) limiting the search condition only
to felons who are required to register under SORNA. The Sentencing Commission
recognizes a search condition “may otherwise be appropriate in particular cases,”


      2
          In relevant part, § 3583(d)(3) reads:

      The court may order, as an explicit condition of supervised release for
      a person who is a felon and required to register under the Sex Offender
      Registration and Notification Act, that the person submit his person, and
      any property, house, residence, vehicle, papers, computer, other
      electronic communications or data storage devices or media, and effects
      to search at any time, with or without a warrant, by any law enforcement
      or probation officer with reasonable suspicion concerning a violation of
      a condition of supervised release or unlawful conduct by the person, and
      by any probation officer in the lawful discharge of the officer’s
      supervision functions.

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United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 5D1.3(d)(7)(C), and
18 U.S.C. § 3583(d)(3) permits a district court to impose “any other condition it
considers to be appropriate.” Noting this provision, the Seventh Circuit Court of
Appeals rejected the proposition that the search condition is limited to certain
offenders: “[W]hile the Sentencing Commission recommends that persons convicted
of sex offenses against minors always be subject to a special condition permitting
warrantless searches, U.S.S.G. § 5D1.3(d)(7), the Commission has also said that the
same condition ‘may otherwise be appropriate in particular cases.’” United States v.
Neal, 810 F.3d 512, 520-21 (7th Cir. 2016) (quoting U.S.S.G. § 5D1.3(d)).

       Under § 3583(d), the “other” condition “must be ‘reasonably related’ to five
matters: the nature and circumstances of the offense, the defendant’s history and
characteristics, the deterrence of criminal conduct, the protection of the public from
further crimes of the defendant, and the defendant’s educational, vocational, medical
or other correctional needs.” United States v. Crume, 422 F.3d 728, 733 (8th Cir.
2005) (quoting 18 U.S.C. § 3583(d)(1)) (citing 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C),
(a)(2)(D)). In addition, “the conditions must ‘involve[] no greater deprivation of
liberty than is reasonably necessary’ to advance deterrence, the protection of the
public from future crimes of the defendant, and the defendant’s correctional needs.
Finally, the conditions must be consistent with any pertinent policy statements issued
by the sentencing commission.” Id. (alteration in original) (citation omitted) (quoting
18 U.S.C. § 3583(d)(2)).

        The district court did not commit plain error in imposing the search condition.
It is not “clear or obvious under current law” the search condition is not reasonably
related to Winston’s offenses and criminal history, involves a greater deprivation of
liberty than necessary, or is inconsistent with any pertinent policy statements.
Iceman, 821 F.3d at 984; see, e.g., United States v. Sharp, 931 F.2d 1310, 1311 (8th
Cir. 1991) (determining a condition of supervised release subjecting a defendant



                                         -5-
convicted of drug crimes to unrestricted warrantless searches “was within the district
court’s power”).

       Winston also argues the district court denied him procedural due process by
failing to consider whether the search condition is reasonably related to the § 3553(a)
factors and whether the search condition involved no greater deprivation of liberty
than is reasonably necessary. “When crafting a special condition of supervised
release, the district court must make an individualized inquiry into the facts and
circumstances underlying a case and make sufficient findings on the record so as ‘to
ensure that the special condition satisfies the statutory requirements.’” United States
v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011) (quoting United States v. Curry, 627
F.3d 312, 315 (8th Cir. 2010)). “While this court encourages detailed individual
findings, where the basis for the special condition can be discerned from the record,
the condition need not be vacated.” United States v. Hart, 829 F.3d 606, 609 (8th Cir.
2016).

       The district court noted the condition “is meant to provide treatment and
assistance to a person under supervision.” The record also includes the probation
officer’s motion hearing recommendation arguing a search condition is essential to
Winston’s effective supervision in the community, given the history and
characteristics of Winston and the instant offense, and that such a condition would
deter Winston from future criminal conduct and promote public safety. Any potential
error here is not plain. See Iceman, 821 F.3d at 983-84.

       Finally, Winston argues the imposition of the search condition violates the Ex
Post Facto Clause because the search condition retroactively increased his penalty.
The Ex Post Facto Clause prevents increasing punishment for a criminal act after the
act has been committed. See U.S. Const. art. I, § 9; Doe v. Miller, 405 F.3d 700, 719
(8th Cir. 2005). In determining whether a condition is in violation of the Ex Post



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Facto Clause, we examine whether the condition at issue is punitive either in its
purpose or in its effect. See Smith v. Doe, 538 U.S. 84, 92 (2003).

       The district court noted the search condition is not “a punitive measure,” so the
search condition is not punitive in purpose. The search condition also is not punitive
in its effect. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)
(identifying seven factors to determine whether a provision is sufficiently punitive to
override express intent, including “whether it has historically been regarded as
punishment,” whether it promotes the “traditional aims of punishment,” namely
“retribution and deterrence,” and “whether it appears excessive in relation to the
alternative purpose assigned”). Though the search condition does deter future crimes,
deterrence may “serve non-punitive goals.” United States v. Jackson, 189 F.3d 820,
824 (9th Cir. 1999). The search condition also is not excessive in relation to the
alternative purpose because it is limited to searches conducted in a reasonable manner
at a reasonable time and only upon reasonable suspicion. Other circuits have held
similar conditions are not punitive. See, e.g., United States v. Coccia, 598 F.3d 293,
298-99 (6th Cir. 2010) (holding a condition of supervised release requiring the
defendant to provide a DNA sample, which the court could not impose at the time of
the defendant’s sentencing, did not violate the Ex Post Facto Clause because the
condition was not punitive); Jackson, 189 F.3d at 823-24 (determining imposing
mandatory drug testing as a condition of supervised release pursuant to the
Guidelines in effect at the time of the defendant’s sentencing and not at the time of
the commission of the offense was not an ex post facto violation because the
condition was not punitive). Because the search condition here is not punitive, it does
not violate the Ex Post Facto Clause.

III.   CONCLUSION
       We affirm.
                  ______________________________



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