United States v. Cordero

• Decision Date: 04 August 2021
• Docket Number: 18-10837
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE MIGUEL CORDERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE MIGUEL CORDERO, Defendant-Appellant.

No. 18-10837

United States Court of Appeals, Eleventh Circuit

August 4, 2021

Appeal from the United States District Court for the Middle District of Florida Docket No. 8:12-cr-00501-MSS-AEP-1.

Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.

BRANCH, Circuit Judge:

Jose Cordero is serving his supervised release term of ten years as part of his sentence for accessing with intent to view child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). He filed motions seeking to clarify, modify, and terminate early his term of supervised release, all of which were denied. He appeals the district court's denial of those motions as well as the entry of a July 2017 sealed order, which required him to disclose details about work he performs as part of the security company he owns and operates and to inform prospective clients of his sex offender status. He maintains that the sealed order improperly modified the terms of his supervised release.^[1] After careful consideration and with the benefit of oral argument, we affirm.

I. Background

In 2013, Cordero, pursuant to a written plea agreement, pleaded guilty to one count of accessing with intent to view child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).^[2] The factual basis included in the plea agreement indicated that on four separate occasions in 2006, Cordero made credit card purchases via PayPal for access to a website containing child pornography, and a forensic search of his laptop revealed "at least ten but less than 150 images of child pornography."^[3]

The district court sentenced Cordero to twelve months and one day of imprisonment to be followed by 120 months' supervised release, consistent with Cordero's request in his sentencing memorandum.^[4] The district court acknowledged that the sentence was a "substantial variance," but that the case was "unusual" and fell "far outside the heartland of cases that this statute was intended to reach" given that the child pornography was accessed in 2006 and the court had "no evidence that it was viewed from the time that it was initially placed on the computer up and through today's date." The district court further noted that the variance was warranted because: the government agreed that Cordero had not accessed any child pornography since his arrest in 2010; Cordero's risk assessment indicated he was not a predator or sexual deviant; he had a history of "stellar [military] service to the country"; considerable support from his family; and he had not "made any inappropriate actual physical contact with any child."

Cordero did not appeal and, after serving the incarceration portion of his sentence, Cordero began serving his 10-year term of supervised release in 2014. The terms and conditions of his supervised release included the following:

(1) "[a]s directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement"

(2) "[t]he defendant shall have no direct contact with minors (under the age of 18), other than his own children without the written approval of the probation officer and shall refrain from entering into any area where children frequently congregate, including: schools, daycare centers theme parks, playgrounds, etc."; and (3) "[t]he defendant shall not possess or use a computer with access to any online service at any location (including employment) without written approval from the probation officer. This includes access through any Internet service provider, bulletin board system, or any public or private computer network system."

On July 7, 2017, the district court entered a sealed order concerning Cordero's supervised release. The order stated as follows:

In its Memorandum to the [c]ourt, ^[5] Probation advises that the Defendant is self-employed as the owner and operator of Cordero Installation Group (CIG), installing multiple smart home automation systems, 'including: security and access control systems, security cameras with DVD Back-up, whole home audio and video systems.' Probation is concerned that the Defendant may pose a risk to the public when he is installing electronic devices in client's homes where minor children reside. Probation is requesting that the [c]ourt approve the enforcement of the condition requiring the offender to disclose details about the work he performs at private residences and to inform prospect employers and customers of the Defendant's sexual offender status. Probation asserts that it is not able to properly assess and address any potential third party risks associated with the Defendant's employment if it is not allowed to notify a prospective client of the Defendant's sexual offender status and inquire as to the duties that the Defendant may perform at the prospective job site.

The Defendant objects to Probation notifying prospective clients of his sexual offender status contending that he is well known in the community and his business may suffer a significant loss. The Defendant contends that he is very mindful of his sexual offender status. He is transitioning from residential to commercial properties and asserts that most of his installations are in new construction homes that are not yet occupied.

Upon consideration of the foregoing, the Court concurs with Probation's request. Probation has no other means to verify the Defendant's employment activities to ensure compliance with terms and conditions of his supervised release. Furthermore, the need to protect the public outweighs the Defendant's potential business loss. The Court reminds the Defendant that as part of his sentence he was ordered to comply with all terms of his supervised release including Condition Number 13 of the Standard Conditions, which states: 'as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.'

Accordingly, it is ORDERED that Probation's request to enforce the condition requiring the offender to disclose details about the work he performs at private residences and to inform prospect employers of the Defendant's sexual offender status is GRANTED. Moreover, the Court directs that Probation shall likewise obtain information and make disclosures in connection with commercial businesses in which the Defendant may come into contact with minor children or may install devices with the capacity to monitor and conduct surveillance of minor children (i.e. nursery schools, churches, amusement facilities etc.).

Approximately a week after the district court entered the sealed order, Cordero filed a pro se "Motion for Clarification" of his supervised release conditions. Cordero did not mention the sealed order. Instead, Cordero asserted that his probation officer had expressed concern that: (1) Cordero could come into contact with minors in homes while he was installing home automation systems; and (2) Cordero's safety could be a risk in the event a client discovered that Cordero was a sex offender while inside the client's home. Cordero stated that he told his probation officer that neither of those scenarios had ever occurred, but that the probation officer stated that he would be informing the district court of his concerns and would also be requesting that the terms of Cordero's supervised release be modified to include a condition that Cordero be subject to polygraph examinations as a means to monitor his compliance with the restriction that he not have direct contact with minor children. Cordero indicated that he was concerned that probation's efforts to enforce restrictions or add additional conditions to his term of supervised release would disrupt his employment and reduce his sole source of income for supporting his family. He asserted that, under Supreme Court precedent, even a casual or chance contact with minors while engaging in his occupation was not sufficient evidence of a violation of the terms of his supervised release, and that his occupation should not be restricted. He also objected to the addition of a polygraph condition.

Prior to the district court ruling on the motion for clarification, Cordero filed a pro se motion seeking early termination of his supervised release under 18 U.S.C. § 3583(e)(1). He stated that the 18 U.S.C. § 3553(a) factors supported his request because: (1) he did not produce or distribute child pornography and accepted responsibility for his actions; (2) the offense occurred in 2006, which was the same year that he discovered that his wife was cheating on him while he was away serving in the military and was a "stressful and psychologically debilitating" time for him; (3) he had no criminal history and had performed exemplary military service; (4) he had since remarried and was employed, provided for his children, and was well-respected in his community; (5) the significant permanent consequences that flowed from his conviction and his sex offender status were adequate to deter him from future criminal conduct; (6) he did not pose a recidivism risk; (7) he had completed two sex offender treatment programs; (8) his offense fell "outside the heartland" of the average child pornography case; (9) there were no identifiable victims in his case; (10) he had complied with the terms and conditions of his supervised release without incident or violation for over 40 months; and (11) he scored a zero on Probation's...