U.S. v. Barajas

• Decision Date: 10 June 2003
• Docket Number: No. 02-3194.,02-3194.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ciro M. BARAJAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

331 F.3d 1141

UNITED STATES of America, Plaintiff-Appellee, v. Ciro M. BARAJAS, Defendant-Appellant.

No. 02-3194.

United States Court of Appeals, Tenth Circuit.

June 10, 2003.

Steven K. Gradert, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, Kansas, for Defendant-Appellant.

David M. Lind, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before EBEL, HENRY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

After pleading guilty to a firearms offense, Defendant Ciro M. Barajas was sentenced to a term of imprisonment, to be followed by three years of supervised release. The district court imposed several conditions on that release, including that Defendant (1) pay child support as ordered by state authorities and (2) participate in a program for mental health treatment. On appeal Defendant challenges those two conditions, arguing that they were imposed without proper presentence notice and that they are not reasonably related to his crime of conviction. We exercise jurisdiction under 18 U.S.C. § 3742 and affirm.¹

I. BACKGROUND

Because Defendant's appeal concerns only the conditions of his supervised release, we can briefly set out the relevant background. On February 25, 2002, Defendant pleaded guilty to a one-count indictment charging him with being a prohibited person (a convicted felon) in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (PSR) calculated Defendant's total offense level under the United States Sentencing Guidelines (USSG) as 17, with a corresponding Guideline range of 37 to 46 months' imprisonment. Reflected in the PSR was Defendant's history of violent behavior, including five prior convictions involving assault, battery, and domestic violence, as well as a number of other violent incidents that did not result in convictions. The PSR also noted that Defendant owed $7,890 in child support stemming from a prior court order, although he was not currently required to provide monthly support. The PSR advised that the court could impose up to three years of supervised release, but it did not recommend that any particular condition be imposed.

The district court sentenced Defendant to 37 months' imprisonment and three years' supervised release. At issue on appeal are two conditions imposed on that release: First, the court ordered Defendant "to make regular monthly child support payments in accordance with [any] payment plan established by state authorities," and to pay the $7,890 he owed in child support arrearages. R., Vol. 2, Doc. 29, at 4, 5. Second, citing Defendant's "history of incidents involving violence," the court ordered him to "participate in an approved program for mental health, which may include psychological counseling... at the direction of the U.S. Probation Officer." Id. The court then asked defense counsel, and Defendant himself, whether they had any objections to the sentence. Although they addressed other matters, neither raised any concerns about the conditions of supervised release.

II. DISCUSSION

A. Notice

Defendant first complains that he did not receive notice before the sentencing hearing that he might be subject to the two challenged conditions of release. Despite Defendant's failure to mention lack of notice when the sentencing court provided an opportunity to object to the proposed sentence, the issue is not necessarily waived. Under certain special circumstances we will consider a failure-of-notice claim even when it is not raised below. In United States v. Bartsma, 198 F.3d 1191 (10th Cir.1999), the defendant, who had been convicted of being a felon in possession of a firearm, was required to register as a sex offender as a special condition of supervised release. At the sentencing hearing, defense counsel failed to take advantage of the opportunity to object to this condition or to lack of notice that the condition might be imposed. Nevertheless, we held that the defendant did not waive his right to challenge on appeal either the imposition of the condition or the lack of notice, observing that "[n]either party had any inkling the district court was considering imposing the sex offender registration requirement, so both sides were utterly unprepared to make reasoned arguments to the court." Id. at 1199 n. 6.

This case is distinguishable from Bartsma. Here, defense counsel had constructive notice that the challenged conditions of release might be imposed. As we explain below, the challenged conditions are among the recommended conditions set forth in the Sentencing Guidelines, and the factual predicates for their imposition were fully addressed in the PSR. Accordingly, Defendant's failure-of-notice claim must be rejected.

Before discussing further the presence of constructive notice in this case, we emphasize that we are not holding that Defendant was in fact entitled to such notice. Bartsma "d[id] not create a rule ... requiring notice prior to the imposition of every ... condition of supervised release." Id. at 1200 n. 7. Rather, the Bartsma holding was limited to the "unique facts" of that case. Id. Bartsma noted that the condition requiring the defendant to register as a sex offender "implicated a liberty interest, and there was a lack of any obvious nexus between the condition and the crime of conviction. Fundamental fairness requires notice — either actual or constructive — under these circumstances." Id. By implication, presentence notice is not required for some other conditions of release — perhaps most conditions. See, e.g., United States v. Brown, 235 F.3d 2, 5 (1st Cir.2000) (notice not required before imposing "stay dry" condition); United States v. Warren, 186 F.3d 358, 366 n. 5 (3d Cir.1999) (notice not required before imposing travel restriction); United States v. Mills, 959 F.2d 516, 519 (5th Cir.1992) (notice not required before imposing "occupational restriction"); United States v. Lopez, 258 F.3d 1053, 1056 (9th Cir.2001) (notice not required before imposing condition that defendant participate in a mental health treatment program).

In any event, in this case Defendant was afforded constructive notice of the possibility that he would be subject to the conditions that he pay child support and undergo counseling. We begin with the condition that Defendant pay child support ordered by state authorities. Under 18 U.S.C. § 3583(d), a district court is authorized to impose as conditions of supervised release any of the discretionary conditions of probation listed under 18 U.S.C. § 3563(b), including that a defendant "support his dependents and meet other family responsibilities," id. § 3563(b)(1), and "comply with the terms of any court order ... requiring payments by the defendant for the support and maintenance of a child...." Id. § 3563(b)(20).

The Sentencing Guidelines track the statute. The condition that a defendant support his or her children and comply with child-support orders, § 5D1.3(c)(4), is among the "`standard' conditions ... recommended for supervised release." USSG § 5D1.3(c). In fact, District of Kansas Standing Order 88-6 mandates this recommendation. The Order states "that all persons placed on ... supervised release by any judge ... of this district, in addition to any special conditions ordered by the judge ..., shall comply with the following conditions of ... supervised release:... (5) The person shall support his or her dependents and meet other family responsibilities."

Similarly, § 3583(d) authorizes a district court to impose the conditions that the defendant "undergo available medical, psychiatric, or psychological treatment," 18 U.S.C. § 3563(b)(9); and the condition that the defendant participate in an approved mental health program is a "special" condition recommended by the Guidelines "[i]f the court has reason to believe that the defendant is in need of psychological or psychiatric treatment...." USSG § 5D1.3(d)(5). We agree with the Ninth Circuit that "participating in a mental health program is listed in the [G]uidelines among the discretionary conditions of supervised release to which all defendants are alerted." Lopez, 258 F.3d at 1056 (emphasis added).

In light of the facts detailed in the PSR, Defendant could not have been caught off-guard by the court's determination that he should undergo mental health counseling. The PSR contains 14 paragraphs describing violent behavior by Defendant dating back to 1989, including five prior convictions for domestic violence, assault, aggravated battery, and battery.

We hold that Defendant was afforded constructive notice that the district court could require him to pay child support and undergo mental health counseling as conditions of supervised release. Cf. Brown, 235 F.3d at 4 ("[T]he [G]uidelines contemplate (and give the [defendant] constructive notice) that the sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender. Consequently, a defendant rarely, if ever, will be able to claim unfair surprise when the sentencing court establishes the conditions of supervised release." (internal citation omitted)). To be sure, there may be occasions when a defendant has a good reason for not being prepared to address at sentencing the imposition of a condition of supervised release listed in the Sentencing Guidelines. In such a circumstance the district court can exercise its sound discretion to grant a continuance. Here, however, Defendant has not suggested any reason why his counsel could not have anticipated the conditions imposed by the district court.

B. Propriety of the conditions

Next, Defendant argues that the district court erred in imposing the two conditions because they are not reasonably related to his crime of conviction. Because Defendant failed to raise...