U.S. v. Sepulveda-Contreras

• Decision Date: 25 October 2006
• Docket Number: No. 04-1409.,04-1409.
• Citation: 466 F.3d 166
• Parties: UNITED STATES of America, Appellee, v. Luis SEPÚLVEDA-CONTRERAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

466 F.3d 166

UNITED STATES of America, Appellee, v. Luis SEPÚLVEDA-CONTRERAS, Defendant, Appellant.

No. 04-1409.

United States Court of Appeals, First Circuit.

Submitted August 3, 2006.

Decided October 25, 2006.

Anita Hill-Adames, on brief for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, H.S. García, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Senior Appellate Attorney, on brief for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and DYK,^* Circuit Judges.

TORRUELLA, Circuit Judge.

On September 17, 2003, Defendant-Appellant Luis Sepúlveda-Contreras ("Sepúlveda") pled guilty to a charge of carjacking under 18 U.S.C. §§ 2 and 2119(2). Sepúlveda was later sentenced to 235 months in prison and five years of supervised release. He now appeals, arguing that: (1) the district court violated his right to be present at sentencing by imposing certain conditions of supervised release for the first time in the written judgment without announcing them orally at sentencing and (2) the district court improperly delegated to the probation officer the responsibility for determining the number of drug tests he must undergo while on supervised release. After careful review, we vacate the aforementioned supervised release conditions and remand for re-sentencing consistent with this opinion.

I. Background

On September 23, 2002, Sepúlveda and his co-defendant, Frankie Torres-Colón,¹ were walking, accompanied by a small child, in Río Piedras, Puerto Rico, when they saw a man driving a blue Dodge Intrepid pull into a school parking lot. The two defendants approached the driver after he exited his car, threatened him with knives, and demanded his car keys. The victim initially complied, but when the defendants insisted that he get into the car with them, he refused and a struggle ensued, during which one or both defendants stabbed him. The defendants then stole the car.

On February 13, 2004, the district court sentenced Sepúlveda to 235 months in prison—which represented the upper limit of the applicable Guideline range—and a five-year term of supervised release.² The court based its decision to sentence Sepúlveda to the upper limit of the applicable range on several factors, including: (1) that Sepúlveda had "been previously involved and convicted of criminal charges at the state level which clearly shows that [he] has no respect for the criminal justice system"; (2) that Sepúlveda, who was given an electronic monitoring bracelet as part of supervised release from state prison on an unrelated conviction, was wearing the bracelet when he committed the carjacking; (3) that the carjacking resulted in permanent and life threatening bodily injury and also put a minor at risk; and (4) the court's belief that "imposing a stiff sentence will be a step towards returning control of the communit[y] to its residents." The court also stated that "[t]he terms and conditions [of the supervised release] shall be set forth in the [written] judgment." The court decided not to impose a fine—although it could have imposed a fine ranging from $17,500 to $175,000—due to Sepúlveda's financial condition.

The written judgment was entered on February 17, 2004. The judgment contained thirteen conditions denominated as "standard" by the Guidelines and several conditions denominated as "mandatory" by the Guidelines. See U.S.S.G. § 5D1.3. The judgment also included three conditions that are the subject of this appeal. First, the judgment stated that "[t]he defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter as required by the Probation Officer." (emphasis added). The judgment included two additional conditions:

1. The defendant shall provide the U.S. Probation Officer access to any financial information upon request, and shall produce evidence to the U.S. Probation office to the effect that income tax returns have been duly filed with the Commonwealth of Puerto Rico Department of Treasury as required by law.

2. The defendant shall submit his person, residence, office or vehicle to a search, conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.³

After filing this appeal, on February 18, 2004, Sepúlveda's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), requesting to withdraw. We rejected this request and ordered counsel to file a merits brief addressing: (1) whether the district court violated Sepúlveda's right to be present at sentencing by imposing the two non-mandatory, non-standard conditions in the written judgment without first announcing them at oral argument; and (2) whether the district court improperly delegated to the probation officer the responsibility for determining the number of drug tests Sepúlveda must undergo while on supervised release.

II. Discussion

A. Non-Mandatory, Non-Standard Conditions

Sepúlveda first argues that the district court violated his right to be present at sentencing by imposing the financial disclosure and search condition for the first time in the written judgment without orally announcing them at sentencing.

We begin by noting that "[d]efendants have a right, guaranteed by the United States Constitution and the Federal Rules of Criminal Procedure, to be present during sentencing." United States v. Meléndez-Santana, 353 F.3d 93, 99 (1st Cir.2003), overruled, in part, on other grounds by United States v. Padilla, 415 F.3d 211, 215 (1st Cir.2005). Accordingly, "where the conditions of supervised release announced at the sentencing hearing conflict in a material way with the conditions of supervised release in the written sentencing order, the oral conditions control." Id. at 100. In Meléndez-Santana, we found that a district court's imposition of a drug treatment condition for the first time in the written judgment violated the defendant's right to be present because it "imposed a potentially significant new burden on the Defendant." Id.

However, we have stated that "no material conflict exists where the defendant is on notice that he is subject to the terms included in the written judgment." United States v. Ortiz-Torres, 449 F.3d 61, 74 (1st Cir.2006). In determining whether Sepúlveda had notice of the two conditions imposed in the written judgment, we must first consider the type of condition. The Sentencing Guidelines specify different categories of conditions for supervised release: (1) "mandatory" conditions, U.S.S.G. § 5D1.3 (a); (2) "standard" conditions, id. § 5D1.3(c); (3) "special" conditions, which become "recommended" if certain criteria are met and "may otherwise be appropriate in particular cases," id. § 5D1.3 (d); (4) "special" conditions that "may be appropriate on a case-by-case basis," id. § 5D1.3(e); and (5) other conditions that meet certain criteria, id. § 5D1.3(b). Defendants are deemed to be on constructive notice for mandatory and standard conditions announced for the first time in a written judgment, and therefore have no right-to-be-present claim with respect to any such condition. See United States v. Vega-Ortiz, 425 F.3d 20, 22-23 (1st Cir.2005) (mandatory conditions); United States v. Tulloch, 380 F.3d 8, 13-14 & n. 8 (1st Cir.2004) (per curiam) (standard conditions).

We also note that at least two other circuits have held that defendants have constructive notice for "special" conditions that become "recommended" when certain criteria are met. See, e.g., United States v. Torres-Aguilar, 352 F.3d 934, 937 (5th Cir.2003); United States v. Asunción-Pimental, 290 F.3d 91, 94 (2d Cir.2002) (stating that, where specific factors necessary to make "special" conditions "recommended" are present, "these `special' conditions are no different in practical terms from `standard' conditions, that is, they are generally recommended"). But see United States v. Thomas, 299 F.3d 150, 155 (2d Cir.2002) (holding that conditions announced for the first time in a written judgment that "govern more than the basic administration" of supervised release violate a defendant's right to be present at sentencing).

The financial disclosure condition imposed by the district court is a "special" condition that becomes "recommended" if "the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine." U.S.S.G. § 5D1.3(d)(3). However, although the district court could have imposed a fine or restitution order on Sepúlveda, it chose not to. Therefore, the condition did not become a "recommended" condition. The search condition is not specifically enumerated in any of the conditions listed in § 5D1.3; instead, it falls under the "catch-all" provision found in § 5D1.3(b), and is therefore not a "recommended" condition. In sum, both of the conditions imposed by the district court are non-mandatory, non-standard, and non-recommended conditions of supervised release.

To our knowledge, no circuit has upheld the imposition of such conditions for the first time in a written judgment in the face of a right-to-be-present claim. We decline to do so here. From our review of the record, there is nothing that would have served to put Sepúlveda on constructive notice that the two conditions would be imposed for the first time in the written judgment. Furthermore, the imposition of both conditions could potentially impose a significant burden on Sepúlveda. We therefore find that the district court erred in imposing these two conditions for the first time in the written judgment.⁴

Having concluded that the district court committed error, we must now address...