United States v. Cabrera-Rivera, 15-1337

• Decision Date: 20 June 2018
• Docket Number: No. 15-1337,15-1337
• Citation: 893 F.3d 14
• Parties: UNITED STATES of America, Appellee, v. Edwin CABRERA-RIVERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

893 F.3d 14

UNITED STATES of America, Appellee,

v.Edwin CABRERA-RIVERA, Defendant, Appellant.

No. 15-1337

United States Court of Appeals, First Circuit.

June 20, 2018

Julie K. Connolly, with whom Julie Connolly Law, PLLC was on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, were on brief, for appellee.

Before Torruella, Lynch, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Edwin Cabrera-Rivera ("Cabrera") was charged in a two-count indictment with production and possession of child pornography. In a deal with the government, he agreed to plead guilty to the possession count -- an offense with no mandatory minimum sentence -- and the government agreed to dismiss the production count -- an offense with a mandatory fifteen-year term of imprisonment. As part of the deal, the parties agreed to recommend a term of 108 months of imprisonment. Cabrera also agreed to waive his right to appeal any sentence consistent with the parties' recommendation. The district court adopted the joint recommendation and sentenced Cabrera to the 108-month term. The court also sentenced Cabrera to a 144-month term of supervised release with multiple conditions.

Cabrera now challenges the length of his terms of imprisonment and supervised release and several of the supervised release conditions, contending that his appeal waiver was not made knowingly and voluntarily, or, in the alternative, that enforcing the waiver would result in a miscarriage of justice. After considering these arguments, we dismiss Cabrera's appeal of his terms of imprisonment and supervised release, as well as his objections to most of the supervised release conditions. The one exception is for a condition that, by its terms, prevents Cabrera from having any contact with his minor children without approval of a probation officer. Thus stated, the condition implicates Cabrera's fundamental constitutional interest in his relationship with his children, and it was imposed without any explanation of its necessity. We vacate that condition and direct the district court to reconsider it on remand.

I.

Because Cabrera's conviction and sentence followed the entry of a guilty plea, we draw the facts from the change-of-plea colloquy and the uncontested portions of the amended Presentence Investigation Report ("PSR"). See United States v. Vélez-Luciano, 814 F.3d 553, 556 (1st Cir. 2016). In 2012, Cabrera, then twenty-five years old, worked for an electrical contractor in Barranquitas, Puerto Rico. Jane Doe ("Doe"), a sixteen-year-old female, lived not far from Cabrera's place of work. At some point during that year, Cabrera and Doe began spending time together. Although the parties strenuously disagree about the nature of Cabrera and Doe's relationship -- a matter we discuss in more detail below -- they do not dispute that Cabrera encouraged Doe to take sexually explicit photos of herself with a cellphone and send them to him.

In January 2013, Department of Homeland Security agents received information that Cabrera had engaged in sexually explicit communications with Doe. The agents subsequently interviewed Doe and learned that Cabrera had asked Doe to send him approximately fifty-eight sexually explicit photos of herself. The agents interviewed Cabrera, who admitted that he had requested the photos. The government then lawfully searched two cellphones owned by Cabrera and found sexually explicit photos of Doe.

Cabrera subsequently was indicted on one count of producing child pornography, in violation of 18 U.S.C. § 2251(a), and one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Cabrera and the government agreed that he would plead guilty to the possession count in exchange for dismissal of the production count. The plea agreement included a joint recommendation that Cabrera receive a 108-month term of imprisonment, but it included no recommendations regarding the duration or conditions of Cabrera's supervised release term. Under a section titled "Maximum Penalties," the agreement stated that Cabrera faced a prison term of no more than ten years and also noted -- incorrectly, it turned out -- that Cabrera was subject to a supervised release term of no more than three years. The plea agreement also included a "Waiver of Appeal" provision, in which Cabrera gave up his right to appeal his conviction and sentence if the sentence imposed was consistent with the parties' recommendation.

At a change-of-plea hearing before a magistrate judge, the government reviewed the terms of the plea agreement, all of which Cabrera said he understood. During the colloquy, however, the court questioned the provision stating that Cabrera's term of supervised release would be "not more than three (3) years." After research by the prosecutor and defense counsel -- who looked up the relevant statutes on their cellphones -- all agreed that, pursuant to 18 U.S.C. § 3583(k), Cabrera faced a term of supervised release of "not less than 5 [years], or life."¹ The magistrate judge gave Cabrera and his counsel a moment to confer about the change, and the court then told Cabrera:

Okay, Mr. Cabrera, that’s what the law says. There is nothing your lawyer can do about it. I just need to make sure that you understand a possible maximum sentence and part of the maximum sentence could be a term of supervised release of up to life. Do you understand that?

Cabrera replied, "Yes."

After advising Cabrera that the sentencing judge would have considerable discretion in determining his sentence, the magistrate judge went on to explain the waiver of appeal provision: "your plea agreement contains a waiver of appeal in which you give up your right to appeal both the judgment and the sentence if the court accepts your plea agreement and sentences you according to its terms, conditions and recommendations. Do you know that?" Again, Cabrera responded, "Yes."

Upon completing the change-of-plea colloquy, the magistrate judge found that Cabrera was competent to plead guilty, he was aware of the nature of the charged conduct and the impact of pleading guilty, and his plea was knowing and voluntary.

Hence, the magistrate judge recommended that the district court accept Cabrera's plea.

In its initial PSR, the Probation Office recommended a pair of two-point enhancements not contemplated by the plea agreement -- one for conduct involving the commission of a sexual act or sexual contact, pursuant to U.S.S.G. § 2G2.1(b)(2)(A), and one for the use of a computer, pursuant to U.S.S.G. § 2G2.1(b)(6)(B). Cabrera objected to the enhancement for sexual contact, and an amended PSR was issued that omitted it. The amended PSR determined Cabrera's guideline sentencing range ("GSR") to be 108-120 months, based on a total offense level of 31 and a Criminal History Category ("CHC") of I. The amended PSR also recommended fifteen special conditions of supervised release. Cabrera did not object to any of them.

At sentencing in February 2015, defense counsel agreed with the guidelines calculation set out in the amended PSR and informed the court that she had discussed the report with Cabrera. After hearing from Cabrera, Doe, and Doe's mother, the court explained the factors specified by 18 U.S.C. § 3553(a) that it had considered,² and it concluded as follows:

I hope not to be committing a mistake here. But at this time I will go with the recommendation of the government within the plea agreement. I find that still 9 years is a significant period of time and I hope that you use the same to continue reflecting on what you did. For you to realize that it doesn't matter whether the woman is the age of consent but you are not to engage in the type of actions that you engage. You are not to take advantage of persons with learning disabilities, because that is still another enhancement.

Regarding Cabrera's supervised release term, the court stated:

[T]he period of supervised release will be a significant one. In essence it will get to a point where if you do it right, if you restructure your life, if you don't give the Probation Officer any reason to believe that you are engaging in any similar action or in any other type of illegal action they will place you in minimal supervision. But if you set a different course in life, then they will be able to act.

Accordingly, the court sentenced Cabrera to a 108-month term of imprisonment and a 144-month term of supervised release. Then, without further explanation, the court imposed virtually all of the supervised release conditions included in the amended PSR, along with a few others. The court also reminded Cabrera that, because he had "stipulated" to the sentence imposed, the waiver of appeal provision in the plea agreement "has been triggered." Cabrera timely appealed.

II.

Cabrera seeks review of his sentence on two grounds. First, he argues that his appeal waiver should not be enforced because it was not made knowingly and voluntarily. Second, he argues that, even if the appeal waiver is valid, we should disregard it and vacate his sentence and six conditions of supervised release to prevent a miscarriage of justice.

To evaluate the enforceability of a defendant's waiver of appeal, we consider three questions: (1) was the waiver's scope clearly delineated? (2) did the district court specifically inquire about the waiver of appellate rights? and (3) would denial of those rights constitute a miscarriage of justice? See United States v. Del Valle-Cruz, 785 F.3d 48, 54 (1st Cir. 2015) (citing United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001) ). The first two prongs of what we have dubbed "the Teeter test" are designed to ensure that "the defendant freely and intelligently agreed to waive [his] right to appeal." Id. (quoting Teeter, 257 F.3d at 24 ) (alteration in original). "In examining whether the...