United States Court of Appeals For the First Circuit
No. 13-1050
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS MANUEL DEL VALLE-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Thompson, and Barron, Circuit Judges.
Jedrick H. Burgos-Amador for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief, for appellee.
April 6, 2015
THOMPSON, Circuit Judge. Defendant Carlos Manuel Del
Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in
prison and seven years of supervised release after pleading guilty
to one count of failing to register as a sex offender. By our
count, this is the third time Del Valle-Cruz has been convicted of
failing to register since his 1997 sex offense conviction. As
troubling as that is, we note that he has not been charged with any
other sex offenses in the intervening eighteen years. The terms of
Del Valle-Cruz's supervised release include a series of special
conditions that prohibit him from contact with minors and require
him to undergo sex offender treatment -- terms that were not
imposed as part of his sentence for the underlying sex offense.
Moreover, these conditions were imposed in a boilerplate fashion,
devoid of any explanation by the district court.
Del Valle-Cruz now seeks to vacate his conviction or,
failing that, the aforementioned special conditions. A waiver of
appeal bars Del Valle-Cruz's appeal of his conviction, as well as
his appeal of most of the special conditions. However, as to his
appeal of the conditions that would interfere with his relationship
with his son, to avoid a miscarriage of justice, we decline to
enforce the waiver and instead vacate those conditions that would
prevent Del Valle-Cruz from contact with, or residing with minors.
We will remand for de novo resentencing with respect to the
supervised release term, so that the district court can consider
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the supervised release conditions as a whole and in light of
intervening precedent. Upon remand for further proceedings on the
special conditions, we invite the district court to revisit the
conditions and to explain their justification in this case.
I.
Background
In Oklahoma in 1997, Carlos Manuel Del Valle-Cruz pled
guilty to a sex offense against a child -- sexual battery.1 The
charges arose from an incident that occurred while Del Valle-Cruz
was working in a nursing center. He approached a fifteen-year-old2
volunteer, pushed her against a wall and touched and kissed her.
Del Valle-Cruz, then thirty, claimed the encounter was consensual,
but given the girl's age, consent was no defense. He was sentenced
to five years imprisonment, with three years suspended.
As a result of this conviction, Oklahoma required Del
Valle-Cruz to register as a sex offender for a period of not less
than ten years, commencing with his release from prison in 2001.
In the event that he moved to another state, Del Valle-Cruz was
required to register in the new state. Although Del Valle-Cruz
registered while living in Oklahoma, he moved to Florida and did
1 Because the instant appeal arises from a conviction following a plea agreement, we draw the facts from the sentencing materials and plea colloquy. See United States v. Whitlow, 714 F.3d 41 , 42 (1st Cir. 2013). 2 Although the Pre-Sentencing Report states that the victim was fifteen years old, Del Valle-Cruz contends that she was sixteen.
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not register there. In 2003, he was arrested in Florida for
domestic battery, and was also charged with failing to register as
a sex offender. He pled guilty to both charges and was sentenced
to a year in jail and three years probation.
In 2007, after a routine check of registered sex
offenders, Florida authorities discovered that Del Valle-Cruz had
absconded from his registered address. He was charged with, and
again pled guilty to, failing to register, and received three years
probation.
The following year, Del Valle-Cruz received a letter from
the Oklahoma authorities notifying him that he had been assigned as
a level three sex offender and would now be required to register
for his lifetime. The letter directed him to contact the
coordinator of the registration unit with any questions. He
neither called nor took any action to challenge that
classification.
In 2009, Del Valle-Cruz moved to Puerto Rico and began
pursuing a degree in computer information systems. Although he
once again failed to register, Del Valle-Cruz apparently worked
diligently at his studies, and expected to graduate in May 2014.
However, after Florida authorities discovered that he had once
again absconded from his address there, they found out that Del
Valle-Cruz had moved to Puerto Rico. A warrant was issued for his
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arrest, and in April 2012, Del Valle-Cruz was indicted federally
for failing to register pursuant to 18 U.S.C. § 2250(a).3
Del Valle-Cruz pled guilty pursuant to a plea agreement.
The agreement contained a waiver of appeal clause that stated:
"[T]he defendant . . . waives and permanently surrenders his right
to appeal the judgment and sentence in this case." An expedited
Pre-Sentence Investigation Report ("PSR") was prepared and
disclosed to Del Valle-Cruz on December 11, 2012; the PSR
recommended a variety of special conditions of supervised release.
The next day, the district court conducted a hearing and sentenced
Del Valle-Cruz to a term of imprisonment of twenty-one months, and
a supervised release term of seven years. The district court set
specific conditions of Del Valle-Cruz's supervised release.
Pertinent to this appeal, the court accepted probation's
recommendation that: (1) Del Valle-Cruz would have to participate
in mental health and sex offender treatment, including submission
to polygraph and PPG4 testing; and (2) he was to have no contact
with minors under the age of 18, would not be allowed to reside in
3 18 U.S.C. § 2250(a) provides for a fine or imprisonment for up to ten years for sex offenders who travel in interstate commerce and knowingly fail to register or update a registration. 4 "PPG testing 'involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.'" United States v. Medina, 779 F.3d 55 , 65 (1st Cir. 2015) (quoting United States v. Weber, 451 F.3d 552 , 554 (9th Cir. 2006)).
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the home with a child under the age of 18, and could not work or
volunteer with minors. The conditions specified that Del Valle-
Cruz was not to have any contact with minors "unless approved in
advance by the U.S. Probation Officer."5 Notably, Del Valle-Cruz
has a son who is approximately nine years old.
After the court pronounced the sentence, Del Valle-Cruz
objected, saying the original offense was (then) some fifteen years
ago and the record did not reflect justification for the sentencing
conditions. With no further elaboration on his objection Del
Valle-Cruz simply asked the court "to make a record of that." The
court noted the objection, but imposed the conditions.
Notwithstanding his waiver of appeal, Del Valle-Cruz filed a timely
appeal.
In March 2014, subsequent to filing this appeal, Del
Valle-Cruz received a letter from the Oklahoma Department of
Corrections informing him that he no longer needed to register in
that state. The letter cited a recent Oklahoma Supreme Court
decision which held retroactive application of that state's sex
offender registration statute to be a violation of the Oklahoma
state constitution's ex post facto clause. See Starkey v. Okla.
Dep't of Corr., 305 P.3d 1004 (Okla. 2013).
5 We shall explore the individual conditions in greater detail below.
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II.
Discussion
On appeal, Del Valle-Cruz seeks to vacate his conviction,
citing the Oklahoma court's decision to support his argument that,
at the time of his arrest, he had no duty to register.
Alternatively and notwithstanding his appeal waiver, Del Valle-Cruz
seeks to vacate some of the sentencing conditions as not reasonably
related to the nature and circumstances of the offense of failing
to register, or to his history and characteristics. He contends
that the conditions deprive him of more liberty than is necessary
to achieve the goals of supervised release. Specifically, he
challenges the following conditions: 5) which prohibits him from
working with minors; 6) which requires him to submit to sex
offender treatment; 11) which requires him to submit to mental
health treatment if he is diagnosed with a mental health disorder;
13) which prohibits any personal contact with minors; 14) which
prohibits him from volunteering with minors; and 15) which
prohibits him from residing with a minor without prior approval by
the probation officer.
We can make quick work of Del Valle-Cruz's condition 11
challenge. He makes only a passing reference to condition 11, but
makes no argument as to why imposing the mental health treatment
condition would result in a miscarriage of justice. "[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
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at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1 , 17 (1st Cir. 1990). Accordingly, we deem this
argument waived. That leaves us with conditions 5, 13, 14, and 15,
which relate to interactions with minors, and condition 6, which
involves sex offender treatment. We shall address these conditions
separately.
The government points to the waiver of appeal clause and
says that, contrary to Del Valle-Cruz's protestations, it should be
enforced to bar the instant appeal, including the terms of release.
Alternatively, the government argues that the imposition of the
conditions of supervised release was not an abuse of discretion.
A. Waiver of Appeal
We begin with the waiver of appeal clause in Del Valle-
Cruz's plea agreement and determine whether it should bar this
appeal. We review the validity of waivers of appeal by applying
the three-prong Teeter test and ask: (1) whether the waiver's scope
was clearly delineated; (2) whether the district court specifically
inquired about the waiver of appellate rights; and (3) whether
denial of those rights would constitute a miscarriage of justice.
United States v. Teeter, 257 F.3d 14 , 24-25 (1st Cir. 2001). The
first two prongs of this test are directed to ensuring that "the
defendant freely and intelligently agreed to waive [his] right to
appeal." Id. Although Del Valle-Cruz concedes in his reply brief
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that his waiver was knowing and voluntary, he argues that enforcing
the waiver would result in a miscarriage of justice.
"To successfully invoke the miscarriage of justice
exception, a garden-variety error will not suffice, rather there
must be, at a bare minimum, an increment of error more glaring than
routine reversible error." United States v. Santiago, 769 F.3d 1 ,
8 (1st Cir. 2014) (internal quotation marks omitted) (citing United
States v. Chambers, 710 F.3d 23 , 31 (1st Cir. 2013)). Del Valle-
Cruz argues that there are two such errors. First, his actual
conviction for failing to register, because he claims that under
Oklahoma law, he was no longer required to register at the time of
his arrest. Second, the sentencing conditions, which he argues are
not reasonably related to the goals of supervised release. We will
address each in turn.
1. Waiver of Right to Appeal Conviction
Del Valle-Cruz first argues that we should not enforce
the waiver to bar the appeal of his conviction for failing to
register, because his Oklahoma registration period was
impermissibly enlarged from ten years to his lifetime, without the
benefit of a hearing. Del Valle-Cruz supports this argument by
citing the letter he received last year advising him that he was no
longer required to register in Oklahoma, a letter prompted by the
ruling in Starkey. According to Del Valle-Cruz, because extensions
like his violated the Oklahoma state constitution's ex post facto
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clause, he was only required to register for the originally-imposed
ten years. That registration period would have lapsed by the time
he was arrested in Puerto Rico in 2012, and therefore Del Valle-
Cruz contends it cannot be used to support his federal failure-to-
register conviction.
Del Valle-Cruz was convicted under the federal Sex
Offender Registration and Notification Act ("SORNA"), which was
enacted in 2006 in an effort to make the existing scheme of state
registration "more comprehensive, uniform, and effective." Carr v.
United States, 560 U.S. 438 , 441 (2010). SORNA defines "sex
offender" as "an individual who was convicted of a sex offense,"
and requires that "[a] sex offender shall register, and keep the
registration current, in each jurisdiction where the offender
resides." 42 U.S.C. §§ 16911, 16913.
The triggering event for the duty to register is a sex
offense conviction, not a state sentence requiring registration as
Del Valle-Cruz argues. It would be illogical for SORNA to operate
to make state registrations more uniform, while at the same time
allowing individual states to determine which sex offenders have a
duty to register when they leave that state. Further, SORNA sets
out the minimum duration of registration for three "tiers" of
offenders. 42 U.S.C. § 16915 requires a registration period of
fifteen years for tier I sex offenders, twenty-five years for tier
II and lifetime for tier III. According to the Attorney General,
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SORNA "establishes minimum national standards, setting a floor, not
a ceiling" for the individual states. The National Guidelines for
Sex Offender Registration and Notification, 73 Fed. Reg. 38,030-01,
38,032 (July 2, 2008). Jurisdictions may choose to exceed the
guidelines in some areas, including the duration of registration,
but they must meet the minimum standards to comply with SORNA. Id.
Del Valle-Cruz's original conviction for a sex offense
against a child makes him a sex offender under SORNA. And once he
crossed the Oklahoma state line, he had a duty under federal law to
register. SORNA's shortest registration period is fifteen years,
and that period begins when the offender is released from prison.
See 42 U.S.C. § 16915(a) (registration period excludes time the
offender was in custody). Del Valle-Cruz was released in 2001;
even at tier I his duty under the federal statute would continue
until 2016.
Accordingly, we find no error, let alone an error
significant enough such that enforcing the waiver of appeal would
result in a miscarriage of justice. Del Valle-Cruz's waiver is
enforceable to bar the appeal of his conviction for failing to
register.
2. Waiver of Right to Appeal Sentencing Conditions
Del Valle-Cruz also appeals certain conditions of his
supervised release, and the government presses its argument that
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the waiver of appeal clause should operate to bar his challenge to
all of these conditions.
a. Sex Offender Treatment
Knowing and voluntary waivers of appeal are binding as
long as the denial of the right to appeal would not constitute a
miscarriage of justice. Teeter, 257 F.3d at 25. That is a high
hurdle for Del Valle-Cruz to clear. Del Valle-Cruz contends that
the imposition of sex offender treatment with no explanation, and
without any indication that he had an inclination to commit another
sex offense, is an error rising to the level of a miscarriage of
justice.
We find that Del Valle-Cruz's case is much like United
States v. Morales-Cruz, 712 F.3d 71 (1st Cir. 2013), which involved
similar facts. There we affirmed the imposition of sex offender
conditions upon a defendant whose sex offense had been committed
some sixteen years prior to his conviction for failing to register.
Like Del Valle-Cruz, the defendant in Morales-Cruz also had
multiple failure to register convictions, and a more recent
conviction for domestic battery. Id. at 73. Although the Morales-
Cruz court did not give a very lengthy explanation for the
imposition of sex offender treatment, in stating that the sentence
and conditions were appropriate, the court referenced the goals of
deterrence, avoiding recidivism, protecting the community, and
rehabilitation. Id. at 73-74. Here, the court imposed sex
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offender treatment conditions upon Del Valle-Cruz without any
justification or explanation, and although it may have been error
to provide no reasoning for its decision, given our precedent
upholding such conditions under similar factual circumstances, we
cannot say it was "an increment of error more glaring than routine
reversible error." Santiago, 769 F.3d at 8. In light of Morales-
Cruz, we see no miscarriage of justice and find that the waiver of
appeal bars our review of the merits of the sex offender treatment
condition.6
b. No Interaction With Minors
Del Valle-Cruz next argues that the sentencing conditions
barring him from personal contact with minors impermissibly
interfere with his constitutional right to raise his child. On
this point, we at least partially agree.
6 Recently, in Medina, where a waiver did not prevent our reaching the merits of a similar condition, we found the use of PPG testing extremely troubling due to its questionable reliability and its extraordinary intrusiveness. 779 F.3d at 74. Given the humiliating nature of the testing, and concerns about its record as a "treatment" tool, we held that "in order for the condition [imposing PPG] to be deemed facially reasonable, district courts must provide a more substantial justification, at least once a defendant objects." Id. at 72. Del Valle-Cruz did not voice a specific objection to PPG testing. However, we are remanding for resentencing as explained infra. Upon remand, while revisiting the special conditions of supervised release, the district court must also give due consideration to our decision in Medina. Additionally, conditions of supervised release can be modified once a defendant is released from imprisonment. Fed. R. Crim. P. 32.1(c).
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"Relief under the miscarriage of justice exception is
often sought but seldom meted out." Santiago, 769 F.3d at 10.
Nevertheless, we have granted relief when an error of significant
or constitutional dimension is clear, and where there is "little
prejudice to the government should we take up the merits of [the
defendant's] appeal given that the government fully briefed this
issue." Id. Here, the error is clear. Not only did the district
court impose onerous conditions without explanation or
justification, but more importantly, two of these conditions (13,
prohibiting personal contact with minors, and 15, prohibiting
residing with minors) implicate a fundamental constitutional
liberty interest -- the relationship between parent and child. See
Quilloin v. Walcott, 434 U.S. 246 , 255 (1978).
When imposing special conditions we, along with our
sister circuits, have "consistently required district courts to set
forth factual findings" to justify those conditions. United States
v. Perazza-Mercado, 553 F.3d 65 , 75 (1st Cir. 2009) (quoting United
States v. Warren, 186 F.3d 358 , 366 (3d Cir. 1999)). Other
circuits have vacated conditions barring contact with minors when
they were imposed with no explanation. United States v. Thompson,
777 F.3d 368 , 376 (7th Cir. 2015) ("Because the district court has
not provided any explanation of how this condition [barring contact
with minors] is reasonably related to [the defendant's] offense and
background or to the goals of punishment, involving no greater
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deprivation of liberty than is reasonably necessary to achieve
these goals, we vacate the condition." (quoting United States v.
Goodwin, 717 F.3d 511 , 523-24 (7th Cir. 2013))); see also United
States v. Davis, 452 F.3d 991 , 995 (8th Cir. 2006) (finding that a
district court's failure to make an individualized determination
before imposing conditions that interfered with the defendant's
parental rights was clear error).
The record before us is devoid of any justification for
the imposition of conditions that would deprive Del Valle-Cruz of
any meaningful relationship with his son. The imposition of these
conditions -- justified by neither the government nor the court --
was a significant error. Although a court's failure to explain its
reasoning for the imposition of conditions does not automatically
result in a miscarriage of justice, where, as here, the error is of
this constitutional dimension, there can be no doubt that
enforcement of the waiver would be a miscarriage of justice. As
for prejudice, we conclude the government will suffer no detriment
if we allow Del Valle-Cruz to challenge these conditions, as it has
amply briefed the issue. Accordingly, we decline to enforce the
waiver of appeal as it relates to conditions 13 and 15.
Del Valle-Cruz also challenges the imposition of
condition 5, prohibiting him from working with minors, and
condition 14, prohibiting him from volunteering with minors. He
makes no specific argument relative to these two conditions,
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leaving us to surmise that he intended that his arguments against
the "contact with minors" conditions would apply equally to all
four of the challenged conditions. However, conditions 5 and 14
are different; these conditions touch upon Del Valle-Cruz's liberty
interest, but they do not present as great an infringement.
Although we are troubled by the imposition of conditions that would
prevent him from engaging in activities such as volunteering at his
son's school, particularly since his underlying offense is so
temporally remote and since he has shown no inclination to abuse
minors in the intervening years since his initial offense, we
cannot say with assurance that their imposition would result in a
miscarriage of justice. Because Del Valle-Cruz's underlying
conviction arose from an incident that took place in his workplace,
with a minor volunteer, these two restrictions are at least
reasonably related to his history and characteristics.
Accordingly, we will enforce the waiver of appeal as it relates to
conditions 5 and 14, and we will proceed to consider the merits of
the appeal of the remaining conditions, 13 and 15.
B. Appeal of Sentencing Conditions
Del Valle-Cruz challenges the sentencing conditions
prohibiting him from having personal contact with, and living with,
any minor child as not reasonably related to either his offense or
his history and characteristics, arguing the district court abused
its discretion because there is nothing in the record to suggest
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that he poses a danger to children. As such, he contends that
these conditions would deprive him of more liberty than is
necessary because they would interfere with his ability to "form a
family with a single mother and partake in raising his son."
We have frequently stated that conditions and terms of
supervised release are part of a defendant's sentence. Santiago,
769 F.3d at 7 (citing 18 U.S.C. § 3583). We review conditions of
supervised release for abuse of discretion. Morales-Cruz, 712 F.3d
at 72. Despite the brevity of the defendant's objection at his
sentencing hearing, we see no reason to apply plain error review,
particularly because the government and Del Valle-Cruz agree that
our review is for abuse of discretion. "[A]buse of discretion is
not a monolithic standard. Within its margins, embedded issues may
receive attention under more narrowly focused standards. Thus,
embedded questions of law engender de novo review and embedded
findings of fact engender clear-error review." United States v.
Carrasco-De-Jesús, 589 F.3d 22 , 27 (1st Cir. 2009). The abuse of
discretion standard "is not a rubber stamp, counseling affirmance
of every discretionary decision made by a trial court." Colon-
Cabrera v. Esso Standard Oil Co. (P.R.), Inc. 723 F.3d 82 , 88 (1st
Cir. 2013) (internal quotation marks omitted). "The court exceeds
its discretion when it fails to consider a significant factor in
its decisional calculus, if it relies on an improper factor in
computing that calculus, or if it considers all of the appropriate
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factors but makes a serious mistake in weighing such factors." Id.
(internal quotation marks omitted).
In assessing the validity of the conditions of supervised
release,
we apply 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(b), which require that special conditions cause no greater deprivation of liberty than is reasonably necessary to achieve the goals of supervised release, and that the conditions be reasonably related both to these goals and to the nature and circumstances of the offense and the history and characteristics of the defendant.[7]
Perazza-Mercado, 553 F.3d at 69 (internal quotation marks and
citations omitted). The district court is required to provide a
"reasoned and case-specific explanation" for the conditions it
imposes. Id. at 75. This requirement is rooted in 18 U.S.C.
§ 3553(c) which mandates that "[t]he court, at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence." In addition to ensuring an
individualized sentence, this reasoned explanation enables our
appellate review. Perazza-Mercado, 553 F.3d at 75. Further,
"courts of appeals have consistently required district courts to
set forth factual findings to justify special probation
conditions." Id. (quoting Warren, 186 F.3d at 366). These factual
7 The goals of supervised release include: affording adequate deterrence; protecting the public; and rehabilitating the defendant. 18 U.S.C. § 3553(a)(2).
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findings must have "adequate evidentiary support in the record."
United States v. York, 357 F.3d 14 , 20 (1st Cir. 2004).
Although we oblige the district court to "provide a
reasoned and case-specific explanation," no explanation was
provided here. Perazza-Mercado, 533 F.3d at 75. Nevertheless, our
analysis does not end there; "even in the absence of an explanation
from the court, a court's reasoning can often be inferred after an
examination of the record." Id. (internal quotation marks
omitted). Accordingly, because the district court has given us no
guidance whatsoever as to the rationale for the conditions it
imposed, we look to the record to determine whether the court's
reasoning can safely be inferred.
As we said, Del Valle-Cruz disputes the validity of
conditions 13 and 15, which, to remind the reader, relate to
personal contact with minors and residing with minors,
respectively. Because both of these conditions would greatly
impact Del Valle-Cruz's ability to have a normal relationship with
his son, we will address them together.
Reasonable Relation
We recognize that a district court "may impose any
special condition of supervised release that it considers
appropriate," but the court's discretion is limited by the caveat
that the conditions must be reasonably related to "the nature and
circumstances of the offense and the history and characteristics of
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the defendant." Morales-Cruz, 712 F.3d at 74 (internal quotation
marks omitted). Del Valle-Cruz first argues that these conditions
are not reasonably related to his offense, because the crime of
failing to register did not involve sexual conduct, and the
underlying sex offense was temporally remote. Moreover, he points
out that these conditions were not even imposed at the time of his
original sex offense conviction. Nor, he contends, are the
conditions reasonably related to his characteristics, because he
has not committed similar conduct in the intervening eighteen
years, and there is no evidence to suggest that he has a propensity
to commit a future sex offense.
In United States v. Medina, we vacated a condition
barring a defendant's access to otherwise legal pornography as not
reasonably related because "there [was] no evidence in the record
to indicate that such material contributed to [the defendant's]
offense or would be likely to contribute to recidivism in the
future given [his] particular history and characteristics." 779
F.3d 55 , 63 (1st Cir. 2015) (internal quotation marks omitted).
Similarly, there is nothing in the record before us to indicate
that the presence of a child in the home contributed to Del Valle-
Cruz's offense, nor that residing with a child would increase Del
Valle-Cruz's risk of recidivism.
It is also troubling that the conditions were imposed so
many years after Del Valle-Cruz's underlying sex offense
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conviction. In Morales-Cruz, 712 F.3d at 75-76, we analyzed six
cases from other circuits that reversed sentencing conditions while
expressing this same concern. Ultimately, we determined that all
of those cases were distinguishable. Id. However, the defendant
in Morales-Cruz challenged the imposition of sex offender
treatment, not conditions barring contact with minors. Id. at 72.
Here, given the gravity of the liberty interest at stake, the
concept of basing such an invasive condition on an offense many
years in the past remains disturbing. Although not binding on us,
we note our sister circuits continue to take a dim view of
equivalent sentencing conditions based on temporally remote sex
offense convictions where there has been no subsequent similar
conduct.
The Seventh Circuit, in Goodwin, 717 F.3d at 523, vacated
a condition prohibiting contact with minors, saying, "We are
skeptical that such a sweeping condition could be reasonably
related to [defendant's] offense, history and characteristics,
particularly since there is no evidence in the record of any
incidents involving minors in the almost two decades since
[defendant's] 1994 conviction." Notably, the district court in
Goodwin "did not discuss its reasons for imposing" the special
conditions, leading the Seventh Circuit to caution that "district
courts' ability to impose no-contact conditions does not absolve
them of their responsibility to explain why such conditions are
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warranted in particular cases." Id. at 515, 524. In United States
v. Bear, 769 F.3d 1 221, 1229 (10th Cir. 2014), the Tenth Circuit
held that a sex offense conviction twelve years earlier, absent
either a history of other sexual offenses or evidence of a
propensity to commit future sex offenses, was "simply too remote in
time, standing alone" to justify the imposition of conditions that
would limit the defendant's ability to live with his children.8
We find the reasoning of these cases persuasive in this
particular instance. Here, although Del Valle-Cruz was convicted
of violating SORNA by failing to register, that offense "is not
itself a sex offense." United States v. Mercado, 777 F.3d 532 , 538
(1st Cir. 2015) (citing U.S.S.G. § 5D1.2, cmt. n.1). Del Valle-
Cruz has not committed a sex offense in the eighteen years since
his original conviction. Moreover, the special conditions were not
imposed when Del Valle-Cruz was initially sentenced for the earlier
sex offense. In the intervening years, although Del Valle-Cruz has
8 In United States v. Bear, a defendant who had been convicted in 2001 of two counts of committing lascivious acts with a child (having forced one child under twelve to engage in oral sex and intercourse, and fondled the genitals of another child), appealed the conditions imposed after his second failure-to-register conviction. 769 F.3d 1 221, 1225 (10th Cir. 2014). The defendant challenged conditions ordering sex offender treatment, as well as conditions prohibiting contact with minors. Id. at 1226. The 10th Circuit cited our decision in Morales-Cruz as authority for affirming sex offender conditions for SORNA violations, and affirmed the imposition of sex offender treatment, but vacated the restrictions on contact with minors because they posed a greater deprivation of liberty than reasonably necessary. Id. at 1226-27, 1229.
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committed other crimes, he has not been arrested for any crime
sexual in nature or involving a minor.9 Like Goodwin, the district
court offered no hint of the reasoning behind the imposition of
these conditions. 717 F.3d at 515. There is simply nothing in the
record before us that indicates a propensity to commit a future sex
offense, particularly as it relates to minors.
Although we recently upheld similar restrictions on
contact with minors in Santiago, 769 F.3d at 4-5, we note that the
facts surrounding the underlying sex offense conviction in Santiago
are distinguishable. The defendant in Santiago was convicted of
failing to register in 2012; ten years earlier, he had been
convicted of lewd molestation and child abuse after molesting the
seven-year-old daughter of his live-in girlfriend. Id. We
affirmed the imposition of the "undoubtedly stringent" conditions
limiting Santiago's contact with minors in part because his "living
arrangements mirrored those from when the [underlying sex offense]
occurred." Id. at 9. The same danger does not exist here. Del
Valle-Cruz did not victimize a child in his home. In fact, he has
two older (now adult) children, with whom he lived without incident
for six years. We also note that the district court in Santiago
9 Since his 1997 sex offense conviction, in addition to failing to register as a sex offender, Del Valle-Cruz had been convicted of possessing contraband in a penal institution (1998), petit larceny (2002), possession of marijuana (2002), and domestic battery (2003).
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reasonably explained the necessity of imposing the conditions;
here, the district court offered no justification whatsoever.
More recently, in Mercado, 777 F.3d at 535, we reviewed
for abuse of discretion a condition that prohibited a defendant
from contact with minors (including his two children) without the
prior approval of his probation officer. We find Mercado and Del
Valle-Cruz's case factually dissimilar. The defendant in Mercado
was convicted of indecent assault in 2002 -- a charge that arose
from the rape of a fifteen-year-old girl. Id. at 534. This was
not an isolated incident; his resume of criminal activity spanned
a period of over twenty years. Id. By the time he pled guilty to
failing to register as a sex offender, some ten years after the
rape, he had racked up "over 45 infractions running the gamut from
drug offenses to property crimes to violent crimes (such as
domestic assault and domestic battery)." Id. This was a spree so
impressive that the district court observed "the defendant had what
may have been one of the most profuse criminal histories" that
court had ever seen. Id. Even after his arrest for failing to
register, he didn't allow the terms of his pretrial release to
break his stride. Id. Instead, while awaiting trial, he continued
to fail to register, blew off a court appearance for driving
without a license, tested positive for cocaine use and scored "no
fewer than ten instances of failing to comply with location
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restrictions." Id. Not surprisingly, the court determined that he
presented an "obvious risk of recidivism." Id. at 539.
The Mercado court spun "a web of special conditions" in
the hope that "if the defendant complied with the supervised
release terms, he might have a chance to break the 'cycle of crime'
that characterized his adult life." Id. at 535. Among these
conditions were restrictions on living with or interacting with
minors. Id. In imposing these conditions, the court gave
detailed, case-specific reasons for their imposition, explaining,
"the sentence was driven by three salient considerations: the
nature of the offense, the defendant's criminal history, and the
defendant's 'egregious' non-compliance with the terms of his
pretrial release." Id. In addition to demonstrating that the
conditions were related to the defendant's history and
characteristics, the court explained that the conditions "would
promote the defendant's rehabilitation," "were intended to mitigate
the risk of this particular defendant re-offending," and "promoted
public safety." Id. at 538-39. We affirmed the challenged
conditions, holding that "the court specifically linked the
rehabilitative and deterrent features of the supervised release
term and its conditions to the defendant's lengthy criminal history
and his persistent failure to comply with the terms of his pretrial
release." Id. at 539.
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The Mercado court's careful explanation of its reasoning
made plain the conditions were reasonably related to the
defendant's history and characteristics, and to the goals of
sentencing. By contrast, the district court here offered no
explanation whatsoever for the conditions imposed on Del Valle-
Cruz, whose criminal history is not nearly as lengthy or as violent
as that of the defendant in Mercado. Aside from failing to
register, Del Valle Cruz has stayed out of trouble since 2003.
While the Mercado court crafted its conditions to give
the defendant "a chance to break the 'cycle of crime' that
characterized his adult life," id. at 535, Del Valle-Cruz's adult
history, though blemished, simply does not come close to resembling
Mercado's. Since moving to Puerto Rico, he has taken affirmative
steps to turn his life around. According to his PSR, he has
completed 90 credits of a BA in Computer Science, and at the time
of his arrest, was employed by a newspaper as a telemarketer, while
also working freelance as a computer repair technician. The
conditions that were carefully reasoned (and amply explained) in
Mercado do not serve the same purpose in this case. Mercado's
criminal history showed little regard for the welfare of his
children or for maintaining a healthy and nurturing family life.
Del Valle Cruz, on the other hand, once lived successfully with his
older children, and his schooling and employment demonstrate
increasing stability in recent years.
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The district court provided us no clue as to its
reasoning, and our review of the record offers little to enlighten
us. Although the PSR recommends the conditions, it offers nothing
in its recitation of the defendant's history or characteristics to
justify them, and absent any basis in the record, their imposition
appears to be arbitrary. We fail to see how prohibiting Del Valle-
Cruz from living with his son and having a normal family life (that
would involve at least some contact with minors) is related to
either his offense of failing to register, or to his history and
characteristics.
Deprivation of Liberty
Del Valle-Cruz also argues that the effect of these
conditions would deprive him of his liberty interest in maintaining
a relationship with his son. We have frequently stated that
conditions may not deprive a defendant of "more liberty than is
reasonably necessary." Perazza-Mercado, 553 F.3d at 70. The
government points to Del Valle-Cruz's initial offense against a
fifteen year old as justification for imposing the prohibition
against contact with all minors, including his own son. The
fallaciousness of this argument is indicated by the government's
failure to explain why these conditions do not deprive Del Valle-
Cruz of more liberty than is reasonably necessary. Instead, the
government relies on an escape hatch -- that Del Valle-Cruz can
seek a modification of these conditions.
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In Mercado, we affirmed similar conditions, saying "the
conditions imposed by the district court do not comprise an
outright ban on the defendant's ability to associate (or even live)
with his minor children. They merely require that his association
with his children be pre-approved by the probation officer and take
place in the presence of an adult familiar with his criminal
history." 777 F.3d at 539. However, as previously explained, the
Mercado court's rationale for the conditions was clear and
detailed, and grounded in concern over his extensive criminal
history. "[T]he court specifically linked the rehabilitative and
deterrent features of the supervised release term and its
conditions to the defendant's lengthy criminal history and his
persistent failure to comply with the terms of his pretrial
release."10 Id.
Because conditions that would impair a defendant's
relationship with his child involve a very significant deprivation
of liberty, they require a greater justification. See Medina, 777
F.3d at 72. The explanation for the imposition of these conditions
10 Similarly, in United States v. Smith, 436 F.3d 307 , 310 (1st Cir. 2006), we affirmed the imposition of a condition that prohibited a defendant from contact with his minor daughter "unless and until the Probate Court ordered otherwise." The condition was imposed after the defendant violated the terms of his supervised release by causing a disruption at two schools and a school district office, demanding to see his daughter. Id. at 310. In imposing the condition, the Smith court expressed a concern that members of the public, including the daughter, needed to be protected from the defendant -- a concern not present here. Id. at 312.
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on Del Valle-Cruz is entirely missing, as is any indication in the
record that his history and characteristics should evoke similar
concerns. The fact that the probation officer retains the
discretion to allow a father to contact his son cannot relieve the
district court of the obligation to provide a reasoned explanation
for giving the officer that power in the first place. We have
previously stated that the imposition of these conditions by the
court appears to be arbitrary. Likewise, Probation's
recommendation of the conditions with no explanation appears
equally arbitrary. We therefore decline the government's
invitation to punt by placing a probation officer between parent
and child.
Our sister circuits have refused to delegate this
authority to Probation absent some justification for imposing the
condition. The Third Circuit warned that courts should "proceed
cautiously in imposing any condition that could impact [a
defendant's] parental rights absent sufficiently reliable
supporting evidence." United States v. Voelker, 489 F.3d 139 , 155
(3d Cir. 2007). In Voelker, the court vacated a condition
restricting the defendant from associating with minors without the
prior approval of a probation officer, and remanded for further
findings of fact after determining that the district court had
"delegated absolute authority to the Probation Office to allow any
such contacts while providing no guidance whatsoever for the
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exercise of that discretion." Id. at 154. As a result of this
delegation, the "[p]robation [o]fficer becomes the sole authority
for deciding if [the defendant] will ever have unsupervised contact
with any minor, including his own children, for the rest of his
life." Id. The Voelker court acknowledged that parental rights
are not absolute, but stated that before restrictions can be placed
on those rights "there must be sufficient evidence to support a
finding that children are potentially in danger from their
parents." Id. (internal quotation marks omitted).
The Fourth Circuit held a prohibition on contact with
minors to be error when it affected a defendant's relationship with
his family in the absence of any justification. Worley, 685 F.3d
at 408. The Worley court held "if the evidence fails to show that
the defendant poses a danger to his own child or loved one, a
condition that limits access to those individuals is not reasonably
necessary to protect those individuals or further the defendant's
rehabilitation." Id. Likewise, the Eighth Circuit modified a
sentencing condition that would have prevented a defendant
convicted of receiving child pornography from having any contact
with his daughter.11 Davis, 452 F.3d at 995. Despite the sexual
nature of the conviction, the Davis court found that the lower
11 It is worth noting that in both Worley and Davis, the court struck down conditions that, like Voelker, allowed at least some contact if first approved by a probation officer. 685 F.3d at 407; 452 F.3d at 994.
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court had failed to make an "individualized analysis" of the case;
an analysis that would have revealed no evidence in the record that
the defendant had ever sexually abused a child, or would pose a
danger to his daughter. Id. The court held that when a condition
would interfere with a defendant's "constitutional liberty interest
in raising his own child, the government may circumscribe that
relationship only if it shows that the condition is no more
restrictive than what is reasonably necessary." Id. Finally, and
most recently, the Tenth Circuit vacated a condition prohibiting a
defendant from contact with minors without prior approval from
probation, saying, "Given the importance of this liberty interest,
special conditions that interfere with the right of familial
association can do so only in compelling circumstances, . . . and
it is imperative that any such restriction be especially fine-tuned
to achieve the statutory purposes of sentencing." Bear, 769 F.3d
at 1229 (internal quotation marks and citations omitted). Given
the facts of Del Valle-Cruz's case, we find the reasoning of our
sister circuits persuasive in this instance.
Our review of the record reveals no showing that
conditions 13 and 15 are no more restrictive than reasonably
necessary, and as stated above, there is nothing to indicate that
Del Valle-Cruz poses a danger to his son. We have found that the
conditions are not reasonably related to either the offense, or to
Del Valle-Cruz's history and characteristics. At the same time,
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these conditions prohibiting contact with, or residing with minors
would interfere with his relationship with his son, and deprive him
of far more liberty than is reasonably necessary. Even were the
conditions amended to allow him to live with his son, the
prohibition against contact with other minors would ensure that Del
Valle-Cruz could not engage in the normal rhythms and pleasures of
parenting, such as attending birthday parties, family gatherings,
or school outings. For those reasons, we vacate conditions 13 and
15.
III.
Conclusion
We dismiss Del Valle-Cruz's appeal of his conviction, as
well as the conditions imposing sex offender treatment, and
prohibiting working with or volunteering with minors. We vacate
conditions 13 and 15, and we remand to the district court for re-
sentencing consistent with this opinion. The re-sentencing shall
be limited to the terms of supervised release, and at that time,
given the concerns we have expressed herein, the district court may
revisit all of the special conditions. United States v. Francois,
715 F.3d 21 , 34 (1st Cir. 2013) ("[P]recedent in this Circuit
establishes that 'an appellate ruling invalidating a sentence . . .
may implicate the trial judge's comprehensive, interdependent
imposition of a penalty and thus require resentencing on all
counts.'" (quoting United States v. Melvin, 27 F.3d 710 , 712 (1st
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Cir. 1994))). At resentencing the district court should explain
its reasons for the imposition of conditions and provide factual
findings supported by the record.
-Concurring Opinions Follows-
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TORRUELLA, Circuit Judge, concurring, with whom THOMPSON,
Circuit Judge, joins in the concurrence. I join the court's
opinion but write separately to note my continued and vehement
disagreement with United States v. Morales-Cruz, 712 F.3d 71 (1st
Cir. 2013), a case that forecloses us from finding a miscarriage of
justice with respect to the sex offender treatment condition. See
Slip. Op. at 12-13. As I explained in my dissent in Morales-Cruz,
a case remarkably similar to the one presently before us, "the
district court's imposition of the special condition of supervised
release -- participation in a sex offender treatment program with
accompanying requirements -- [wa]s not reasonably related to the
factors set forth in section 3553(a)(1)," nor was it "sufficiently
related to one or more of the permissible goals of supervisory
release." Morales-Cruz, 712 F.3d at 76 (Torruella, J., dissenting)
(internal quotation marks and citations omitted). The same is true
here. The district court inexplicably failed to give any
explanation as to why it was imposing this condition on Del Valle-
Cruz or how the condition was reasonably related either to the
nature and circumstances of his failure to register offense or to
his criminal history and characteristics. Yet, because of Morales-
Cruz, this panel cannot remedy what, in my view, is a clear abuse
of discretion and miscarriage of justice by the district court.
Unfortunately, this is not an isolated occurrence. There
is a disturbing trend in this circuit of district courts imposing
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similar boilerplate conditions of supervised release on every
defendant convicted of a failure to register charge under SORNA.12
Even more troubling, these district courts often neglect to provide
any rationale for the imposition of these harsh and exacting
conditions; instead, they simply note that the conditions "are
fairly standard" in these types of cases. See, e.g., United States
v. Mercado, 777 F.3d 532 , 535 (1st Cir. 2015) (approving of the
district court's thorough explanation for why numerous conditions
of supervised release were imposed but also quoting the district
court as stating that the no contact with minors conditions "are
fairly standard in sex offender cases"). Morales-Cruz implicitly
endorses this practice through its faulty reasoning. Thus, not
only is Morales-Cruz wrong on the merits, but it also provides
fodder for a disturbing and questionable practice. I strongly urge
my colleagues to reconsider this erroneous decision.
12 Like Del Valle-Cruz, these conditions include invasive sex offender treatment and proscription against any contact with minors.
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