U.S. v. Perazza-Mercado

• Decision Date: 21 January 2009
• Docket Number: No. 07-1511.,07-1511.
• Citation: 553 F.3d 65
• Parties: UNITED STATES of America, Appellee, v. José Angel PERAZZA-MERCADO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

553 F.3d 65

UNITED STATES of America, Appellee, v. José Angel PERAZZA-MERCADO, Defendant, Appellant.

No. 07-1511.

United States Court of Appeals, First Circuit.

Heard June 3, 2008.

Decided January 21, 2009.

José L. Barreto-Rampolla, with whom Rivera, Barreto & Torres Marcano was on brief, for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief Appellate Division, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to address the validity of two conditions of supervised release imposed on a defendant convicted of unlawful sexual contact with a minor. The first condition prohibited the defendant from having any access to the internet at home during the fifteen-year supervised release period. The second condition prohibited the possession of pornography generally.

I.

Pursuant to a plea agreement, appellant José A. Perazza-Mercado pled guilty to one count of knowingly engaging in sexual contact with a female under the age of twelve. The district court levied a $7,500 fine and sentenced him to forty-six months of incarceration, to be followed by fifteen years of supervised release. As special conditions of supervised release, the court imposed the total ban on appellant's use of the internet at his home and the prohibition on the possession of pornography of any kind.

As he did before the sentencing court, Perazza-Mercado challenges the restriction on his internet use on the grounds that it is not reasonably related to his offense and involves a greater deprivation of his liberty than is reasonably necessary. We agree with appellant that, under the circumstances of this case, the district court's imposition of a total ban on home internet use was an abuse of discretion. On remand, the district court should consider a narrower restriction on internet use, now feasible in light of technological developments.

Perazza-Mercado also challenges, for the first time on appeal, the condition forbidding the possession of pornography. He relies on the alleged vagueness of the district court's reference to pornography and the absence of a relationship between his offense and pornographic materials. We conclude that the district court committed plain error by failing to offer any explanation for the total ban on pornography, in the absence of a record containing any evidence regarding appellant's use of pornography, its involvement in the offense at issue, or its relationship to the likelihood of recidivism. On remand, the district court may reconsider the appropriateness of a ban on possessing pornography as a condition of supervised release. If it chooses to impose such a prohibition, it must explain the basis for doing so and the grounding of that prohibition in the record.

II.

A. Background

The following undisputed facts were stipulated as part of the plea agreement. Perazza-Mercado was an Educational Technician (ET) with the Department of Defense's Education and Administration Antilles Intermediate School at the U.S. Army Base at Fort Buchanan, Puerto Rico. In this capacity, he directly supervised two or three special needs students at a time.

While working as an ET on or about April 18, 2006, Perazza-Mercado knowingly engaged in sexual contact with a nine-year-old female in his care. Under the classroom desk, Perazza-Mercado touched the female student's genital area and took her hand to touch his own genitalia. A male student observed this incident when he dropped his pencil under the desk, and he reported the conduct to another teacher. Both students were interviewed and provided consistent narratives of the incident. In an interview with a federal agent approximately one month later, Perazza-Mercado admitted that he had engaged in the reported sexual conduct with the female student.

The parties agreed that, at sentencing, the government would recommend an offense level of nineteen,¹ which, when combined with defendant's criminal history category (I)², yielded a Guidelines sentencing range of thirty to thirty-seven months. Perazza-Mercado waived his right to appeal the sentence as long as he was sentenced in accordance with the terms and conditions of the plea agreement.³ Pursuant to this plea agreement, Perazza-Mercado pled guilty on August 8, 2006, to knowingly engaging in sexual contact with a female under the age of twelve in violation of 18 U.S.C. § 2244(a)(1). His plea was accepted by the court.

B. Sentencing

At the sentencing hearing on February 15, 2007, the district court relied on the recommendation in the pre-sentence report (PSR), which differed from the parties' Guidelines calculation to the extent that it recommended a two-level victim-related adjustment because the victim was a "vulnerable victim."⁴ This enhancement increased the total offense level to twenty-one, which carries a guidelines sentencing range of thirty-seven to forty-six months for a defendant with no criminal history.

In addition to a description of the specific incident which led to appellant's conviction, the PSR also contained evidence of other instances of inappropriate conduct towards the victim and other minor females at the school where he worked. In interviews with the defendant's co-workers and supervisors, his probation officer learned that Perazza-Mercado had previously been reprimanded for touching the victim's knee (on another occasion) and for bringing gifts to other minor female students. The interviewees also related several of Perazza-Mercado's inappropriate remarks about the victim and other female students, and described how, on several occasions, Perazza-Mercado had attempted to escort female students to the restroom, even though this was not allowed. Finally, several of his co-workers mentioned Perazza-Mercado's express preference for working with female students rather than males.⁵

The district court sentenced Perazza-Mercado to forty-six months in prison, the maximum sentence which he could have received under the guidelines.⁶ The decision also provided for a $7,500 fine and a fifteen-year term of supervised release.

Perazza-Mercado's supervised release was subject to a number of mandatory conditions. See generally U.S.S.G. § 5D1.3(a). However, the court, in its discretion, also imposed a number of other conditions of supervised release, including all of the standard conditions of supervision described in U.S.S.G. § 5D1.3(c) and several special conditions, two of which are specifically recommended for sex offenders by the Sentencing Guidelines. See U.S.S.G. § 5D1.3(d)(7). Perazza-Mercado does not challenge the special condition requiring him to participate in a treatment and monitoring program for sex offenders pursuant to U.S.S.G. § 5D1.3(d)(7)(A); the condition that he submit to reasonable searches of his person and property by his probation officer pursuant to U.S.S.G. § 5D1.3(d)(7)(C); or the court's prohibitions on working with minors and residing or loitering near places where children would typically congregate.⁷ However, he does challenge two other special conditions imposed by the trial court: one that prohibited him from accessing the internet in his home, and another that banned him from possessing any type of pornographic material.

At the sentencing hearing, Perazza-Mercado challenged the court's "prohibition as to the computer at home," explaining that "we must not forget that Mr. Perazza is a married person, so-and his wife uses that as a work tool. Every day, more and more people are using that as a work tool." The court responded, "That is a prohibition. There are ways to deal with that. The wife has a computer. The wife can get in contact with the Probation Department, and they can password protect the computer."⁸ Perazza-Mercado's counsel also noted, in the context of the internet ban, that the police found no child pornography when they searched appellant's home, including his computer. Perazza-Mercado did not object to the pornography ban at sentencing.

On appeal, Perazza-Mercado raises two issues: (1) whether the district court abused its discretion in banning his access to the internet in his home, and (2) whether the district court committed plain error by prohibiting him from possessing any kind of pornography.

III.

Whether a court may impose a total ban on a defendant's home internet use as a condition of supervised release is an issue of first impression in this circuit. In this case, we address the validity of such a condition only in a narrow set of circumstances: where the defendant has no history of impermissible internet use and the internet was not an instrumentality of the offense of conviction.

When a defendant objects to the imposition of a special condition at the time of sentencing, we review the district court's decision to impose the condition for abuse of discretion. United States v. York, 357 F.3d 14, 19 (1st Cir.2004). To assess the validity of such conditions, we apply 18 U.S.C. § 3583(d) and U.S.S.G § 5D1.3(b), which require that special conditions cause "no greater deprivation of liberty than is reasonably necessary" to achieve the goals of supervised release, 18 U.S.C. § 3583(d)(2), and that the conditions be "reasonably related" both to these goals and to the "nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3583(d)(1); see also 18 U.S.C. § 3553(a)(1).

The purposes of supervised release are the same as the purposes of sentencing generally, which are set forth in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with...