Not for Publication in West’s Federal Reporter
United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
ALEX S. RODRÍGUEZ-SANTANA, a/k/a Puruco, a/k/a Indio, a/k/a Alex R. Santana,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[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.
DISMISSED IN PART, VACATED IN PART, AND REMANDED.