795 F.3d 1233 (10th Cir. 2015), 14-2084, United States v. Martinez-Torres

Docket Nº:14-2084
Citation:795 F.3d 1233
Opinion Judge:HARTZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BELISARIO DOMINGO MARTINEZ-TORRES, Defendant - Appellant
Attorney:Steve Sosa, Assistant Federal Public Defender, Las Cruces, New Mexico, for Defendant - Appellant. David N. Williams, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff - Appellee.
Judge Panel:Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
Case Date:July 31, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1233

795 F.3d 1233 (10th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

BELISARIO DOMINGO MARTINEZ-TORRES, Defendant - Appellant

No. 14-2084

United States Court of Appeals, Tenth Circuit

July 31, 2015

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. 2:08-CR-00941-SWS-1).

Steve Sosa, Assistant Federal Public Defender, Las Cruces, New Mexico, for Defendant - Appellant.

David N. Williams, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff - Appellee.

Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.

OPINION

HARTZ, Circuit Judge.

The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention. Readily avoidable errors regarding these " secondary" matters appear too frequently on our docket. Particularly frustrating is that often the errors were not raised by defense counsel until the appeal. If the prosecutor, the defense attorney, and the district court would devote a bit more time at sentencing hearings to issues beyond incarceration,1 much time and effort will be saved in the long run.2

This is a case in point. Defendant Belisario Domingo Martinez-Torres raises challenges to three conditions of supervised release. Although two were not objected to in district court, the government concedes that they must be set aside on plain-error review. Remand is also necessary on the third challenged condition of release. The error may not be an obvious one, but it might well have been avoided by additional advocacy and exploration of the issue at the sentencing hearing.

I. BACKGROUND

In July 2008, Defendant, who was 23 years old at the time, pleaded guilty in the United States District Court for the District of New Mexico to possession with intent to distribute 50 kilograms or more of marijuana. See 21 U.S.C. § 841(b)(1)(C). The presentence investigation report said that Defendant had been arrested about two years earlier for aggravated sexual assault of a child younger than 14 years of age and the charge was pending trial in Texas state court. The district court sentenced Defendant to 30 months' imprisonment followed by three years of supervised release. In addition to standard conditions of supervised release, the court imposed a special condition requiring that Defendant submit to searches for drugs or weapons at the direction of the probation officer. In January 2014 the court modified the release conditions, ordering Defendant to reside at a residential reentry center in El Paso, Texas, for up to 120 days. It appears that the modification was prompted by the discovery that Defendant had been frequently traveling between El Paso and Juarez, Mexico, to see his family.

Two months later the probation office filed a petition for revocation of supervised release, alleging that Defendant had violated the new special condition by failing to return to the residential reentry center. After a hearing the district court revoked Defendant's supervised release. When asked for its position on sentencing, the government told the court that it would defer to the recommendations of the probation office and the court's judgment. Defense counsel responded that he did not think there were any such probation recommendations. He asked the court to fashion a sentence that would allow Defendant to meet his obligations to his family, explaining that Defendant had not committed any new crimes since commencing his supervision, he was employed during his supervision and worked hard to support his family, and he did not use alcohol or drugs.

After hearing from defense counsel, the court stated:

[A] couple of things . . . complicate the situation in [Defendant's] case. One, and the most significant is, is that he's a registered sex offender in the Texas law having been convicted of that crime. . . . [T]hat creates a heightened risk and issue. . . . And the reality is that because of that, there is much more constraint on what can be done to ensure where he is, when he's there, and that he's doing what is required.

R., Vol. III at 12-13. The court also admonished:

[W]hat [Defendant] needs to do is understand the constraints and limitations and abide by them. And if he can't, then the only place that I will find for him is a cell. Because . . . if he isn't willing to abide by those conditions, then there are no terms or conditions that can be fashioned and he can kill his number in prison.

Id. at 13. The court imposed a sentence of two months' imprisonment and two years of supervised release. In addition to standard conditions of supervised release, the court imposed seven special conditions, including the following: (1) Defendant " must refrain from the use and possession of alcohol and other forms of intoxicants" ; (2) Defendant " shall undergo a risk assessment and/or psychosexual evaluation and begin participating in sex offender treatment, consistent with the recommendations of the assessment and/or evaluation" and " shall submit to clinical polygraph testing and any other specific sex offender testing, as directed by the probation officer" ; and (3) Defendant " shall be prohibited from viewing or possessing any material including photographs, images, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct or child pornography as defined in 18 U.S.C. 2256." Id., Vol. I at 22.

Defense counsel objected to the third condition, arguing only that a prohibition on the possession of legal pornography and other legal material describing sexual activity " is beyond the pale." Id., Vol. III at 17. The court responded: " I would note the objection but I would find that based upon the prior criminal history and the risks associated with this Defendant, that such a limitation is appropriate and necessary and in the best interests of the public." Id. at 17-18. On appeal Defendant renews his challenge to the sexually-explicit-material condition, and also challenges the conditions prohibiting the use of alcohol and requiring sex-offender treatment and polygraph testing.

II. DISCUSSION

We review for abuse of discretion a special condition of supervised release to which timely objection was made; that is, we reverse only if " it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment." Bear, 769 F.3d at 1226 (internal quotation marks omitted). In the absence of proper objection, however, we review only for plain error. See Mike, 632 F.3d at 691. " To establish plain error, the defendant must show: (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 691-92 (internal quotation marks omitted).

The conditions of release must (1) be " reasonably related" to 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, or the defendant's educational, vocational, medical, or other correctional needs; (2) " involve[] no greater deprivation of liberty than is reasonably necessary" for the purposes of deterring criminal activity, protecting the public, and promoting the defendant's rehabilitation; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d); see id. § 3553(a); Bear, 769 F.3d at 1226. Further, " [t]he district court is required to provide at least generalized reasons for imposing special conditions of supervised release." United States v. Smith, 606 F.3d 1270, 1283 (10th Cir. 2010).

We vacate all three special conditions. Defendant did not object below to two of the conditions he challenges on appeal--the condition...

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