United States v. Morales-Cruz, 12–1593.

• Decision Date: 05 April 2013
• Docket Number: No. 12–1593.,12–1593.
• Citation: 712 F.3d 71
• Parties: UNITED STATES, Appellee, v. José Felipe MORALES–CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

712 F.3d 71

UNITED STATES, Appellee,

v.José Felipe MORALES–CRUZ, Defendant, Appellant.

No. 12–1593.

United States Court of Appeals, First Circuit.

April 5, 2013.

Héctor L. Ramos–Vega, Assistant Federal Public Defender, with whom Héctor E. Guzmán, Jr., Federal Public Defender, and Patricia A. Garrity, Assistant Federal Public Defender, were on brief, for appellant.

Dina Ávila–Jiménez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LYNCH, Chief Judge.

This case concerns whether a district court abused its discretion when, in sentencing José Felipe Morales–Cruz, it imposed a particular condition of supervised release: that “[t]he defendant shall participate in a sex offender treatment[ ] and[/]or mental health treatment program arranged by the probation officer.” Morales–Cruz, who had a 1994 conviction for criminal sexual assault, had failed to register as required under the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), when he moved to Puerto Rico in 2010, and he was indicted for that failure. He had also failed to register as required by law in 2009 when he lived in Florida. And he was convicted in 2002 for failure to register as a sex offender when he lived in New Jersey. In addition to Morales–Cruz's sex offense and his two prior failures to register as a sex offender, he had an extensive criminal record. Further, he had a 2010 conviction for battery on the woman he lived with, a battery which ended only when a security officer intervened.

Morales–Cruz pled guilty to the federal charge of failure to register in this case. The court sentenced him to 48 months of imprisonment, with a ten-year term of supervised release, subject to a number of conditions. These included non-standard conditions tailored particularly to Morales–Cruz. On the recommendation of the Probation Department in the presentence investigation report (“PSR”), one condition imposed was that Morales–Cruz would have to participate in sex offender treatment and/or mental health treatment programs arranged by the probation office. He appeals.

I.

Morales–Cruz does not appeal from his 48–month sentence and agrees that he is in need of at least mental health treatment. Nor does he take any issue with the delegation to the probation officer to choose which type of treatment program he should receive after his imprisonment. His sole objection is to the possibility that the probation officer may deem a sex offender treatment program to be appropriate. His primary argument is that his one conviction for a sex offense was in 1994, some 16 years before his present offense, that date is too long ago to justify the present condition, and nothing else about his history of other offenses, including his multiple failures to comply with SORNA, provided a permissible justification for the condition. As a result, he says the condition is not reasonably related to the nature of the offense or his history or characteristics. We disagree.

II.

Our review of the conditions of supervised release is for abuse of discretion. United States v. Sebastian, 612 F.3d 47, 50 n. 2 (1st Cir.2010). We take the undisputed facts from the record.

Morales–Cruz's PSR included specific facts concerning the defendant's characteristics. At the time of sentencing, Morales–Cruz was 58 years old, had a seventh-grade education, and was single and without dependents, though he had two adult daughters. His employment was in jobs such as a butcher, a carpenter, an assistant mechanic, and in maintenance. He had never paid any income tax. Morales–Cruz admitted to using cocaine and heroin daily since he was twenty years old and had last used these substances the day before his arrest for the present offense. He had never participated in any drug treatment program.

Morales–Cruz had ten prior convictions, several of which we highlight. At age 41, he pled guilty in New Jersey to attempted criminal sexual assault on an adult female victim. The crime is described in the record:

[O]n September 24, 1994 in Passaic NJ, the defendant assaulted [the victim], and tried to force her to have sexual intercourse. The defendant fought with the victim, and she sustained a bruise on her right cheek and ear, a cut on her right hand, and both knees were bruised. The defendant left the apartment on foot. An attempt to arrest the defendant at his residence was made, to no avail.

Morales–Cruz was arrested four days later and sentenced to 4 years of imprisonment.

Morales–Cruz's record shows a pattern of failure to comply with court orders and conditions of probation imposed for his crimes. At ages 44 and 45, Morales–Cruz was found in contempt of court by two separate courts in New Jersey, arising out of state offenses. At age 48, in 2002, Morales–Cruz was convicted in New Jersey of failure to register as a sex offender and was originally put on 18 months of probation. Within six months, his probation was revoked and he was sentenced to 15 months of imprisonment. At age 50, he was convicted of theft and placed on probation; probation was then revoked and he was sentenced to three years of imprisonment. There were also drug crimes and a bench warrant outstanding for him.

Significantly, in 2010, after he had moved to Florida, he did not contest the battery charges he faced for assaulting an adult female victim. The record states:

On September 4, 2009 ... [a] security guard for the apartment complex and [sic] while he was on patrol he could hear yelling and screaming in the area of apartment 7–5. When he approached the apartment, the door was open and he noticed the defendant, Jose F. Morales, grabbing the victim ... by the hair and tossing her around the room. Tavarez then saw Morales strike her in the head area with an open hand. Tavarez pulled his taser and ordered Morales to the ground. Morales complied and went to the ground. Tavarez radioed to his supervisor who called 911. She further stated that the defendant arrived home intoxicated and began to argue with her. Morales then grabbed her hair and hit her in the head. [The victim] never gave Morales permission to hit her or pull her hair. Morales and [the victim] had been living together as a couple for a period of two years.

Morales–Cruz was sentenced to a jail term and 320 days of probation. He violated the terms of probation and had an active Florida warrant at the time of his arrest in Puerto Rico.

At the April 2012 sentencing hearing, the court correctly stated the legal requirements for imposing sentencing and supervised release. Morales–Cruz does not suggest otherwise, and there is no claim of procedural error. The court assessed Morales–Cruz's particular history, characteristics, and conduct, and stated it found the sentence and conditions appropriate because of a need to protect the community and for deterrence, avoiding recidivism, and to promote defendant's rehabilitation:

The Court in making an assessment to impose a sentence takes into account other factors in 18 U.S.C. 3553(a) and understands that the nature and the circumstances of the offense of Defendant reflects that he has a lack of respect for other individuals. He has prior records that include criminal sexual assault, failure to register, and battery, among others. It reflects that as an individual he has a lack of control, and there is a need to protect the community from this individual.

The court then concluded:

The Court must promote that Mr. Morales make insight of his wrongdoings and that he be afforded adequate—and that adequate deterrence to the criminal—his criminal conduct be afforded. The Court must protect the community from individuals like Mr. Morales who openly disrespect the law by engaging in continuous criminal conduct and fail to abide by their supervision convictions, as failing to register as reflected in the presentence investigation report.

III.

In United States v. York, 357 F.3d 14 (1st Cir.2004), this court set forth the legal criteria for imposition of supervised release conditions, as well as for appellate review of those conditions. We stressed that “the facts of [a defendant's] underlying offense and criminal history are pertinent to the district court's choice of supervised release conditions”:

This is so by statute. Under 18 U.S.C. § 3583(d), the district court may impose any special condition of supervised release that it considers “appropriate,” provided that the condition satisfies certain specified criteria. One such criterion is that the condition imposed be “reasonably related to the factors set forth in section 3553(a)(1).” Id. § 3583(d)(1). Section 3553(a)(1), in turn, requires the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” See alsoU.S.S.G. § 5D1.3(b).

Id. at 17.

In York, we noted that there were limitations on the district court's power to fashion conditions of supervised release. Id. at 20. The critical test is whether the condition is reasonably related to one or more of the goals of supervised release. Id. The district court here specifically made that link. It stated that Morales–Cruz had a lack of control, did not respect others, needed to be deterred, and that the community needed protecting from him.

Morales–Cruz argues that failure to register is not a sex offense, though he acknowledges that sex offender treatment may be imposed in a case in which the underlying crime is not a sex offense. See id. at 19–20. Contrary to Morales–Cruz's main argument, the court appropriately considered his failure to register under SORNA in three jurisdictions, and “[t]he condition that he attend sex-offender treatment is plainly related to his criminal history,” id. at 21, as well as to his present offense.

SORNA requires sex offenders to “register,...