United States v. Mercado
| Decision Date | 06 February 2015 |
| Docket Number | No. 13–2268.,13–2268. |
| Parties | UNITED STATES of America, Appellee, v. Jorge MERCADO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Olin Thompson, Assistant Federal Public Defender, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.
Before SELYA, Circuit Judge, SOUTER,* Associate Justice, and LIPEZ, Circuit Judge.
Sentencing courts have broad discretion in setting conditions of supervised release—but broad discretion is not unbridled discretion. Defendant-appellant Jorge Mercado complains that the sentencing court went too far in this case and acted arbitrarily in setting the conditions of his supervised release. Concluding that the defendant's jeremiad is unconvincing, we affirm his sentence.
The defendant pleaded guilty to one count of failure to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). The SORNA registration requirement applied due to the defendant's interstate travel following a state-court conviction in 2002 for indecent assault arising out of the rape of a 15–year–old girl. The defendant was 31 years old at the time of the offense.
At sentencing, the district court set the guideline sentencing range at 30 to 37 months, based in part on a criminal history category of VI (the highest available). In the process, the court observed that the defendant had what may have been one of the most profuse criminal histories the court had ever seen. This history spanned a period of more than 20 years and included over 45 infractions running the gamut from drug offenses to property crimes to violent crimes (such as domestic assault and domestic battery). Additionally, the court noted that while awaiting trial, the defendant had repeatedly violated the terms of his pretrial release. These violations included, among other things, continuing to fail to register under SORNA, failing to appear in state court following an arrest for driving without a license, testing positive for cocaine use, and no fewer than ten instances of failing to comply with location restrictions.
When all was said and done, the district court imposed a top-of-the-range incarcerative sentence of 37 months, to be followed by a five-year term of supervised release. The court explained that the sentence was driven by three salient considerations: the nature of the offense, the defendant's criminal history, and the defendant's “egregious” non-compliance with the terms of his pretrial release. The court ascribed particular importance to supervised release, spinning a web of special conditions, see USSG § 5D1.3(d), and suggesting that if the defendant complied with the supervised release terms, he might have a chance to break the “cycle of crime” that characterized his adult life.1
Among the special conditions imposed by the court, four are challenged on appeal. One such condition requires the defendant to participate in a sex-offender treatment program “as directed by the probation officer” and to submit to periodic polygraph testing at the probation officer's discretion to ensure compliance. The remaining three conditions circumscribe the defendant's contact with minors in various ways. One forbids the defendant from having any contact with a child under the age of 18 without the prior approval of the probation officer and the presence of an approved adult who is aware of the defendant's criminal history. Another prohibits the defendant from living with a child under the age of 18 unless the probation officer first approves. The last condition bars the defendant from working or volunteering in any situation in which there is access to children unless authorized in advance by the probation officer.
The defendant argued at sentencing that none of these conditions was supported by the record and that his lone conviction for a sex offense was irrelevant because it occurred more than ten years earlier. In the defendant's view, his more recent malefactions did not justify a conclusion that he presented a danger to children (or anyone else, for that matter). The district court overruled the defendant's objections. With respect to the sex-offender treatment condition, it stated:
[S]ex offender treatment is as directed by the Probation Office. It's not required. If the probation officer determines it's appropriate, the Probation Office has the discretion to require [the defendant] to attend that treatment and the testing would only be in conjunction with follow-up to that treatment.
With respect to the remaining three conditions, the court stated:
We divide our analysis into two segments. The first segment deals with the sex-offender treatment condition. The second segment deals with the balance of the challenged conditions.
The defendant challenges the imposition of the sex-offender treatment condition and related polygraph testing on two grounds. Neither ground is persuasive.
1. Delegation. We start with the defendant's claim that the sex-offender treatment condition constitutes an unlawful delegation of the district court's sentencing authority. In support, the defendant points to the district court's statements that sex-offender treatment is to be “as directed by the Probation Office” and that the “Probation Office has the discretion to require” the defendant to attend treatment sessions. These statements, the defendant says, show that the court granted “unfettered discretion” to the probation office. That grant, the defendant says, is unconstitutional.
There is a procedural obstacle to this claim of error: it is raised for the first time in this court. Consequently, it is subject only to review for plain error. See United States v. Padilla, 415 F.3d 211, 218, 220 (1st Cir.2005) (en banc); see also United States v. Bey, 188 F.3d 1, 10 (1st Cir.1999) ().
Plain error review engenders a four-part inquiry. The appellant must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).
We need not tarry. This case does not require us to make a definitive ruling on the lawfulness of the delegation. Even assuming, for argument's sake, that the delegation is improper, and that the error is clear, the defendant cannot satisfy either of the last two parts of the plain error test.
We do not write on a pristine page. In the past, we twice have rejected, under plain error review, unpreserved delegation challenges to supervised release conditions. See United States v. Sánchez–Berríos, 424 F.3d 65, 81–82 (1st Cir.2005) ; Padilla, 415 F.3d at 220–21. Although those decisions did not involve sex-offender treatment, they are nonetheless instructive here.
We go directly to the third prong of plain error review. In assessing whether an unlawful delegation of sentencing authority affects a defendant's substantial rights, we must gauge whether he has shown a reasonable probability that, but for the alleged error, the court would likely have imposed a different and more favorable sentence. See Padilla, 415 F.3d at 221. When the challenged delegation grants the probation officer the discretion to require, in the first instance, that the defendant undergo some sort of treatment or testing, the plain error test places the defendant in the “nearly impossible” position of proving two variables. Id. First, he must show a fair probability that the court, acting directly, would not have mandated such treatment or testing. Second, he must show that the probation officer will likely exercise her discretion to require the defendant to participate in such treatment or testing. See id. The uncertainties surrounding those questions erect too high a hurdle for the defendant to clear.
Even if the defendant could show that the district court, delegation aside, would not itself have imposed the sex-offender treatment condition—a proposition that, on this record, verges on wishful thinking—there is simply no way that the defendant can show that, upon his future release from incarceration, the probation officer is likely to require him to participate in sex-offender treatment. It follows inexorably that the defendant cannot show that the sentencing outcome would have been more favorable to him had the alleged delegation error not occurred and, thus, the delegation did not affect the defendant's substantial rights. See Sánchez–Berríos, 424 F.3d at 81–82 ; Padilla, 415 F.3d at 221.
The fourth prong of the plain error test is equally inhospitable to the defendant's claim: the alleged delegation error does not in any way undermine the fairness, integrity, or public reputation of the sentencing proceeding. Where, as here, supervised release will not commence until the end of a substantial term of immurement, most people would think it both fair and sensible to postpone the decision as to whether sex-offender treatment is needed until the commencement of supervised release. That is precisely what the district court's delegation accomplishes. And in any event, we have held before that delegation errors concerning matters incidental to a defendant's sentence...
To continue reading
Request your trial