United States v. Lonjose

• Decision Date: 28 December 2011
• Docket Number: No. 11–2042.,11–2042.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Randell David LONJOSE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

663 F.3d 1292

UNITED STATES of America, Plaintiff–Appellee,
v.
Randell David LONJOSE, Defendant–Appellant.

No. 11–2042.

United States Court of Appeals, Tenth Circuit.

Dec. 28, 2011.

[663 F.3d 1294]

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant–Appellant.

Andrea W. Hattan, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney for the District of New Mexico, with her on the brief), Las Cruces, New Mexico, for Plaintiff–Appellee.

Before HARTZ, HOLMES, Circuit Judges, and EAGAN, District Judge. ^*EAGAN, District Judge.

Defendant–Appellant Randell David Lonjose pleaded guilty to one count of engaging in a sexual act with a minor in Indian Country, in violation of 18 U.S.C. §§ 1153 and 2243(a), and was sentenced to 51 months in prison followed by three years of supervised release. As part of his plea agreement, Defendant waived his right to appeal his sentence. The United States Probation Office (USPO) later filed an ex parte petition seeking to modify Defendant's conditions of supervised release to include two additional special conditions. On appeal, Defendant contends that the district court erred in granting

[663 F.3d 1295]

the USPO's motion as to one condition. Defendant argues that the condition prohibiting him from having contact with any child under the age of 18 without prior written permission of his probation officer is overly broad because it intrudes on his right to freely associate with his family and lacks compelling justification. In response, the government argues that the appellate waiver contained in Defendant's plea agreement deprives this court of jurisdiction to hear this appeal.

We hold that the appellate waiver in Defendant's plea agreement does not preclude the filing of this appeal and we have jurisdiction under 28 U.S.C. § 1291. We reverse the district court's imposition of the challenged condition of supervised release, and remand for further proceedings as to the scope of the condition so that it reasonably relates to Defendant's offense.

I. BACKGROUND

In December 2005, the Federal Bureau of Investigation (FBI) was informed by the Pueblo of Zuni that Defendant, who was 22 years of age at the time, had sexually assaulted an underage female. After conducting an investigation, the FBI learned that Defendant had been engaged in a sexual relationship for approximately two months with a girl between the ages of 12 and 16.¹ The girl told FBI agents that she had consented to the sexual encounters, but that she “let [Defendant] have sex with her so that they could remain friends.” Defendant admitted to having sex with the girl four times, but stated that he believed she was at least 17 years old, although she had never told him her age.

On September 13, 2006, a grand jury returned an indictment charging Defendant with four counts of sexual abuse of a minor in Indian Country, in violation of 18 U.S.C. §§ 1153 and 2243(a). On January 18, 2007, a magistrate judge conducted a plea hearing pursuant to Fed. R.Crim. Proc. 11, at which Defendant was placed under oath. The court addressed Defendant directly, informed him of his rights, and confirmed that he understood the terms of his plea agreement. The plea agreement contained a provision entitled “Waiver of Appeal Rights,” which stated, in part, that “the Defendant knowingly waives the right to appeal any sentence within the statutory range applicable to the statute(s) of conviction.” The magistrate judge noted on the record that Defendant had waived “certain [of his] appellate rights” and asked Defendant whether he had discussed this provision with his attorney. Defendant stated that he had. Defendant pleaded guilty to count one of the indictment, and the magistrate judge accepted that plea. Counts two, three and four of the indictment were subsequently dismissed.

The district court held a sentencing hearing on April 26, 2007. In preparation for the sentencing hearing, the probation office submitted a presentence report in compliance with Fed. R.Crim. Proc. 32, which the defendant was given time to review prior to the hearing. After reviewing the presentence report and hearing from the parties, the district court sentenced Defendant to 51 months in prison followed by three years of supervised release. The district court stated that Defendant must comply with the “standard conditions of supervised release and ... the standard sex offender conditions adopted by the District of New Mexico on February 6, 2007.” The district court specifically

[663 F.3d 1296]

listed three mandatory conditions of supervised release and four special conditions of supervised release with which Defendant would be required to comply. The listed conditions did not include any restriction of Defendant's contact with minors. At the conclusion of the hearing, the district court stated that “[t]he Court finds that pursuant to the plea agreement, the defendant waives the right to appeal the final sentence imposed by this court under 18 U.S.C. 3742(a).”

The district court entered judgment on April 30, 2007. The judgment set forth Defendant's plea of guilty to count one of the indictment and the sentence pronounced by the court at the sentencing hearing. The judgment listed three mandatory conditions of supervised release, 22 standard conditions, and five special conditions with which Defendant would be required to comply. The judgment did not include a condition prohibiting or limiting Defendant's contact with minors.

On December 30, 2010, approximately one week before Defendant was due to complete his prison sentence, the USPO filed an ex parte petition seeking to modify Defendant's conditions of supervised release to include the following two additional special conditions: (1) that Defendant reside at and complete a program at a residential re-entry center for a period of up to six months; and (2) that Defendant not have contact with children under the age of 18 without prior written permission of his probation officer. The district court conducted a hearing on the USPO's petition on January 4, 2011, at which Defendant and his counsel appeared. During the hearing, Defendant's counsel stated that Defendant had no objection to the first additional special condition proposed by the USPO requiring Defendant to reside at and complete a program at a residential re-entry center. However, Defendant did object to the second additional special condition restricting his contact with children under the age of 18.

During the hearing, a probation officer informed the district court that the probation officer who had prepared the presentence report had intended to include, in the original sentence recommended, the condition restricting contact with minors, but had inadvertently omitted it. The district court deferred ruling on the imposition of this condition and allowed the parties to brief the issue of whether the district court had the authority to modify the conditions of supervised release at that stage in the proceedings.

The district court continued the hearing to February 3, 2011, at which time Defendant again appeared with counsel. During this hearing, the district court concluded that it had authority to modify the conditions of supervised release pursuant to 18 U.S.C. § 3583(e)(2), which states, in part, that a court may:

modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision....

Defendant's counsel argued that, even if the court had authority to modify the conditions of supervised release, the condition prohibiting contact with minors was not justified in this case and unreasonably infringed on Defendant's right to familial association, including his right to see his six year old son.

After hearing from the parties and the probation officer, the district court granted the petition to add the supervised release condition that Defendant not have contact

[663 F.3d 1297]

with minors without prior written permission of his probation officer. An order imposing the condition was entered on February 4, 2011. Defendant timely appealed.

II. ANALYSIS

Before reaching the merits of Defendant's argument that the district court erred in granting the motion to modify the conditions of supervised release, we must address the government's contention that Defendant has waived his right to bring this appeal.

A. Defendant's Waiver of Appellate Rights

Defendant's plea agreement contained a provision entitled “Waiver of Appeal Rights,” which stated in its entirety that “[t]he Defendant is aware that federal law affords a Defendant the right to appeal the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal any sentence within the statutory range applicable to the statute(s) of conviction.”

Defendant maintains that this waiver applies only to Defendant's ability to appeal the original sentence imposed by the district court. Therefore, Defendant argues, because this appeal does not challenge the original sentence imposed, but rather challenges the district court's subsequent modification of that sentence pursuant to 18 U.S.C. § 3583, the waiver is not applicable. The government contends we must dismiss the appeal because the waiver bars any manner of appellate review.²

Whether a defendant's appellate waiver as set forth in a plea agreement is enforceable is a question of law we review de novo. See Ibarra–Coronel, 517 F.3d at 1221. “A defendant's knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable.” United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir.2001) (internal quotation marks and citations omitted); see also United States v....