United States v. Rodriguez-Santana

2014 | Cited 0 times | First Circuit | February 7, 2014

Not for Publication in West’s Federal Reporter

United States Court of Appeals For the First Circuit

No. 12-2067




ALEX S. RODRÍGUEZ-SANTANA, a/k/a Puruco, a/k/a Indio, a/k/a Alex R. Santana,

Defendant, Appellant.


[Hon. Francisco A. Besosa, U.S. District Judge]

Before Torruella, Baldock,* and Thompson, Circuit Judges.

Thomas J. Trebilcock-Horan, Assistant Federal Public Defender, with whom Héctor E. Guzmán, Jr., Federal Public Defender, Héctor L. Ramos-Vega, Assistant Federal Public Defender, and Liza L. Rosado- Rodríguez, Research & Writing Specialist, were on brief, for appellant. Dina Ávila-Jiménez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.

* Of the Tenth Circuit, sitting by designation.

February 7, 2014

BALDOCK, Circuit Judge. By way of appeal, Defendant Alex

Rodríguez-Santana seeks to challenge the special sex-offender

conditions (SOC) of his supervised release. We exercise

jurisdiction pursuant to 18 U.S.C. § 3742(a)(1).


Defendant moved from Delaware to Puerto Rico around January

2010. In July 2011, Defendant pleaded guilty to one count of

failing to register as a sex offender with Puerto Rican authorities

in violation of 18 U.S.C. § 2250(a). Section 2250(a) criminalizes

the knowing failure to comply with the Sex Offender Registration

and Notification Act (SORNA), 42 U.S.C. §§ 16901–16962. The

indictment alleged SORNA required Defendant to register by reason

of his 1994 Delaware state conviction for unlawful sexual

intercourse with a victim between the ages of twelve and fifteen.

Prior to pleading guilty, Defendant entered into a plea

agreement with the Government pursuant to Fed. R. Crim. P.

11(c)(1)(C). The agreement advised Defendant of, among other

things, the maximum penalties for his offense. Those penalties

included the imposition of a five or more year term of supervised

release. In particular, defense counsel informed the court at

Defendant’s change of plea hearing that she had discussed with and

explained to Defendant “the terms of supervised release.” Aplt’s

App. at 86. The court then addressed Defendant:

[W]ith respect to the term of supervised release that may be imposed, after you are released from prison, you will


be under the supervision of a probation officer for a term that will be imposed by the court at sentencing. During that term, you will have to comply with certain conditions. If you violate any of those conditions, the probation officer will tell the court, and [the court] can impose additional time in prison on you. Do you understand that?

Id. Defendant answered “yes” without asking the court what those

conditions might be. Id.

The probation office subsequently prepared its pre-sentence

investigation report (PSR). The PSR recommended imposing special

conditions of supervised release related to Defendant’s sex

offender status. Defendant specifically objected to three of those

conditions in a pre-sentence filing:

“Defendant objects . . . with regards to special sex offender conditions, ‘SOC’, all included in the PSR in paragraphs 62, 63 and 65. The SOC recommended . . . are not reasonably related to the statutory sentencing factors in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(D) and . . . involve a ‘greater deprivation of liberty than is reasonably necessary’ to serve the purposes of deterrence, protection of the public, and training and treatment as prescribed by 18 U.S.C. § 3583(d).

Id. at 32–33. Paragraph 62 of the PSR recommended Defendant not

“work with children,” or engage in employment “bearing a reasonable

direct relationship to the conduct constituting the offense.”

Aplt’s Supp. App. at 20. Paragraph 63 recommended in relevant part

that Defendant “undergo a sex-offense-specific evaluation and

participate in a sex offender treatment and/or mental health

treatment program” and “abide by all rules, requirements, and

conditions of the sex offender treatment program(s), including


submission to polygraph testing.” Id. Lastly, Paragraph 65

recommended Defendant not reside with minors or have unsupervised

contact with them.

At sentencing, the district court accepted the plea agreement

and sentenced Defendant to 27-months imprisonment consistent

therewith. The court rejected Defendant’s objections to the PSR

and ordered that following his release from confinement Defendant

be placed on supervised release for a 10-year term subject to the

SOC set forth in the PSR, as slightly modified. Defendant timely

appealed. As he argued in the district court, Defendant says, not

without some force, that the remoteness of his 1994 sex offense

renders the SOC imposed by the district court unlawful.


The obstacle confronting Defendant is simply this: The plea

agreement contained a waiver of appeal provision stating that if

the district court accepted the agreement and sentenced Defendant

“according to its terms, conditions, and recommendations,”

Defendant “waive[d] and surrender[ed] his right to appeal the

conviction and sentence.” Aplt’s App. at 15. During his change of

plea hearing, Defendant told the court he understood that if the

court sentenced him consistent with the plea agreement, he waived

his right to appeal the conviction and sentence. At the conclusion

of the hearing, the court found Defendant’s plea of guilty was

knowing and voluntary, and he was aware of its consequences.


In United States v. Rivera-López, 736 F.3d 633 (1st Cir.

2013), we recently held the appellate waiver contained in a

defendant’s plea agreement extended to conditions of supervised

release. Like Defendant’s waiver here, the “‘Waiver of Appeal’

stated that Rivera would not seek appellate review of any ‘judgment

and sentence’ that was in accordance with the agreement’s terms and

recommendations.” Id. at 634. Our construction of the appellate

waiver in Rivera-López, by which we are bound, was undoubtedly

correct because “[a] supervised release term is an integral part of

a sentence” generally encompassed within any broadly-worded

agreement not to appeal a “sentence.” United States v. Brown, 235

F.3d 2 , 4 (1st Cir. 2000). See also 18 U.S.C. § 3583(a) (treating

a term of supervised release as part of a sentence); 18 U.S.C.

§ 3624(e) (same); 18 U.S.C. § 3742(a)(3) (same).

In Rivera-López, we explained that “[w]here knowing and

voluntary, an appellate waiver is generally enforceable, absent

indications that such a waiver would work a ‘miscarriage of

justice.’” Rivera-López, 736 F.3d at 635. In this case, Defendant

does not argue his plea agreement should be set aside; nor could

he. Defendant does not claim his sentence is inconsistent with

the plea agreement’s “terms, conditions, and recommendations.”

Moreover, the plea colloquy before the district court confirms

Defendant’s plea was knowing and voluntary. That the agreement

does not specify the conditions of Defendant’s supervised release


is inconsequential. In United States v. Ruiz, 536 U.S. 622 , 629

(2002), the Supreme Court told us “the law ordinarily considers a

waiver knowing, intelligent, and sufficiently aware if the

defendant fully understands the nature of the right and how it

would apply in general in the circumstances—even though the

defendant may not know the specified detailed consequences of

invoking it.” (emphasis in original).


That leaves us with the question of whether Defendant’s

appellate waiver works a miscarriage of justice. “The miscarriage

of justice exception is strong medicine.” United States v.

Chambers, 710 F.3d 23 , 30–31 (1st Cir. 2013). While we have not

conclusively set the parameters of this exception, “[w]hat is clear

. . . is that the exception is to ‘be applied sparingly and without

undue generosity’; mere ‘garden-variety’ claims of error are

insufficient to sustain an appeal in the face of waiver.” Rivera-

López, 736 F.3d at 635 (quoting United States v. Teeter, 257 F.3d

14 , 26 (1st Cir. 2001)). Before applying this exception, we

require, “at a bare minimum, an increment of error more glaring

than routine reversible error.” Chambers,710 F.3d at 31 (quoting

United States v. Nguyen, 618 F.3d 72 , 75 (1st Cir. 2010)). Absent

an appellate waiver, the “hallmark that separates impermissible

conditions [of supervised release] from permissible ones is

whether, on a given set of facts, a particular restriction is


clearly unnecessary.” Brown, 235 F.3d at 7 (emphasis added).

Something still more is required where a defendant waives the right

to appeal his sentence. The conditions must be “so clearly

erroneous and unsubstantiated as to work a miscarriage of justice.”

Rivera-López, 736 F.3d at 637.

Defendant correctly points out that, apart from mandatory

conditions of supervised released, special conditions imposed under

18 U.S.C. § 3583(d) must be reasonably related to the factors set

forth in section 3553(a)(1) and (a)(2)(B)-(D), and involve no

greater deprivation of liberty than is reasonably necessary for the

purposes set forth in the latter three subsections. But here we

cannot say the three SOC to which Defendant objects are so far

removed from the “nature and circumstances of the offense and the

history and characteristics of the defendant” that they are clearly

erroneous. 18 U.S.C. § 3553(a)(1). Nor can we say the need to (a)

“afford adequate deterrence to criminal conduct,” (b) ”protect the

public from further crimes,” and (c) “provide the defendant with

needed . . . correctional treatment,” does not in some sense serve

to justify those conditions. 18 U.S.C. § 3553(a)(2)(B)-(D).

As we explained in United States v. Morales-Cruz, 712 F.3d 71 ,

75 (1st Cir. 2013), “SORNA registration serves a purpose: to

protect the community from the risks posed by convicted sex

offenders by requiring registration and then by providing

notification. . . . Registration requirements such as those SORNA


imposes are justified by the high recidivism rate for offenders.”

We well understand that Defendant’s conviction requiring SORNA

registration is two decades old. But according to the PSR,

Defendant’s conviction was followed by a prison escape and

probation violation that sent him back to prison. Once released,

Defendant continued to engage in acts of criminal aggression. Then

in 2008, Defendant was convicted under Delaware law of failure to

register as a sex offender. In 2010, Puerto Rico convicted him of,

among other things, attempted aggravated burglary. A minor

assisted Defendant in committing that crime. Defendant’s ongoing

criminal activity, including his failure to register as a sex

offender in multiple jurisdictions, illustrates an utter disrespect

for the law.

Given Defendant’s criminal record, the district court’s

apparent conclusion that his history presents a recidivism risk,

warranting both deterrence and rehabilitation is hardly

unsubstantiated. See Rivera-López, 736 F.3d at 637. Having said

that, let us be absolutely clear: Given the waiver of appeal,

which “requires more than reversible error to sustain a miscarriage

of justice,” we need not delve into “the exact contours of a

court’s ability to impose such conditions” absent such waiver. Id.

at 636. And we express no opinion as to whether the SOC of

Defendant’s supervised release would pass muster “if squarely

before us on appeal.” Id. We hold only that the district court’s


imposition of the SOC does not constitute a miscarriage of justice.


One final matter: At oral argument the Court inquired of the

Government whether a fourth condition of Defendant’s supervised

release was warranted. This condition—which Defendant objected to

in the district court but does not clearly identify on appeal as a

SOC—is that he permit monitoring of any device with internet

access, or data or video storage or sharing capabilities, and

consent to unannounced examinations of such device. The Government

conceded this condition may not be justified, at least in the

absence of any explanation by the district court. Accordingly we

vacate that particular condition of Defendant’s supervised release.

On remand, the Government may in its discretion seek an explanation

for such condition.



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