United States v. Pabon

• Decision Date: 08 April 2016
• Docket Number: No. 14–1850.,14–1850.
• Citation: 819 F.3d 26
• Parties: UNITED STATES of America, Appellee, v. Luis E. PABON, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — First Circuit

819 F.3d 26

UNITED STATES of America, Appellee,

v.Luis E. PABON, Jr., Defendant–Appellant.

No. 14–1850.

United States Court of Appeals, First Circuit.

April 8, 2016.

Lisa Aidlin, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before HOWARD, Chief Judge, SELYA and THOMPSON, Circuit Judges.

HOWARD

, Chief Judge.

Luis Pabon appeals his sentence for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a)

. The district court sentenced Pabon, inter alia, to five years of supervised release with special conditions. The conditions require Pabon to participate in a sex offender treatment program and submit to polygraph testing. They also restrict his association with minors. Pabon alleges that these conditions are unreasonable and violate 18 U.S.C. § 3583(d)

. On appeal, Pabon also raises several other constitutional and statutory challenges for the first time.

In light of Pabon's substantial criminal history and the district court's ample explanation for the conditions imposed, we hold that the court did not exceed its sentencing discretion under 18 U.S.C. § 3583(d)

. Further, a number of Pabon's claims were not preserved and, moreover, have been waived on appeal because he has made no attempt to satisfy the four-part plain error burden. See, e.g., United States v. Padilla, 415 F.3d 211, 218 (1st Cir.2005) (en banc). In any event, even if those claims are only forfeited, the district court's sentence, properly construed, does not amount to plain error. Thus we affirm the sentence as construed.

I. Background

In 2011, Pabon pled guilty to violating the registration requirements of SORNA. Pabon was required to register because he had been convicted in 2008 of second-degree child molestation for sexually molesting the fourteen-year-old daughter of his then-girlfriend. The district court sentenced Pabon to thirty months in prison and five years of supervised release¹ with special conditions, including:²

(1) Sex offender treatment condition: "participate in a sex offender specific treatment program as directed by the probation officer";

(2) Polygraph test condition: "participate in testing in the form of polygraphs or any other methodology approved by the Court in order to measure compliance with the conditions of treatment and supervised release";

(3) Contact condition: "have no contact with any child under the age of 18 without the presence of an adult who is aware of the defendant's criminal history and is approved, in advance, by the probation officer";

(4) Residence condition: "live at a residence approved by the probation office, and not reside with anyone under the age of 18, unless approved, in advance, by the probation office";

(5) Loitering condition: "not loiter in areas where children congregate," including but not limited to "schools, daycare centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events"; and

(6) Employment condition: "not be employed in any occupation, business, or profession or participate in any volunteer activity where there is access to children under the age of 18, unless authorized, in advance, by the probation officer."

Pabon's counsel objected to these conditions as unreasonable in violation of 18 U.S.C. § 3583(d)

. Notwithstanding, the district court imposed the conditions, finding that they were reasonably necessary to achieve deterrence, incapacitation, and rehabilitation in light of Pabon's profuse criminal history. That history includes the underlying sex offense conviction, four assault convictions (two within the past ten years), and another SORNA violation just months after the sex offense conviction.

Pabon timely appealed.³ On appeal, he continues to challenge the conditions as unreasonable, in violation of 18 U.S.C. § 3583(d)

. He asserts that they restrict his liberty more than reasonably necessary to accomplish the goals of sentencing, that the district court failed to provide an adequate explanation for them, and that they are unsupported by the record. In addition, he raises several new arguments. He asserts that the conditions impermissibly delegate authority to a probation officer in violation of Article III of the Constitution, that the associational conditions unconstitutionally infringe his right to associate with his minor daughter, that the employment condition violates 18 U.S.C. § 3563(b)(5) and U.S.S.G. § 5F1.5, and that the polygraph test condition is inherently unreliable and violates the Fifth Amendment privilege against self-incrimination.

II. Reasonableness

We hold that the conditions are reasonable under 18 U.S.C. § 3583(d)

. Because Pabon properly preserved these challenges below, we review for abuse of discretion. United States v. Mercado, 777 F.3d 532, 537 (1st Cir.2015).

In assessing the validity of the conditions of supervised release, we apply 18 U.S.C. § 3583(d)

and U.S.S.G. § 5D1.3(b), which require that special conditions cause no greater deprivation of liberty than is reasonably necessary to achieve the goals of supervised release, and that the conditions be reasonably related both to these goals and to the nature and circumstances of the offense and the history and characteristics of the defendant.

United States v. Del Valle–Cruz, 785 F.3d 48, 58 (1st Cir.2015)

(internal formatting and citation omitted). These goals include "the need to deter the defendant from further criminal conduct; the need to protect the public from further crimes by the defendant; and the effective educational, vocational, medical, or other correctional treatment of the defendant." United States v. York, 357 F.3d 14, 20 (1st Cir.2004) (citing U.S.S.G. § 5D1.3(b)(1) ; 18 U.S.C. § 3583(d)(1) ); see also 18 U.S.C. § 3553(a)(2)(B)–(D). "The critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release, and the fact that a condition of supervised release is not directly related to the crime of conviction does not render that condition per se invalid." United States v. Sebastian, 612 F.3d 47, 50 (1st Cir.2010) (quoting York, 357 F.3d at 20 ) (some internal formatting omitted). The condition imposed must also be "consistent with any pertinent policy statements from the Sentencing Commission." York, 357 F.3d at 20 (citing U.S.S.G. § 5D1.3(b)(2) ).

In addition, the district court is "required to provide a reasoned and case-specific explanation for the conditions it imposes." Del Valle–Cruz, 785 F.3d at 58

(internal quotation marks and citations omitted). Not only does such an explanation facilitate appellate review, but the statute also requires it. Id. (quoting 18 U.S.C. § 3553(c)

). Nevertheless, even absent an adequate explanation by the district court, we may infer the court's reasoning from the record. Id. at 58–59. In all cases, however, the sentence must find "adequate evidentiary support in the record." Id. at 58.

Applying the above principles, we have found sex offender treatment conditions a reasonable means of enabling defendants to "manage their impulses and ... reduce recidivism." United States v. Morales–Cruz, 712 F.3d 71, 75 (1st Cir.2013)

(quoting McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) ); see also Mercado, 777 F.3d at 538 (sex offender treatment condition "is reasonably related to rehabilitation and protecting the public"). For sex offenders, that risk of recidivism is "frightening and high." Sebastian, 612 F.3d at 51 (quoting Smith v. Doe, 538 U.S. 84, 105, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) ) (internal quotation marks omitted). Moreover, subsequent criminal conduct, whether or not of a sexual nature, indicates an enhanced risk of recidivism. See Mercado, 777 F.3d at 539 ; Morales–Cruz, 712 F.3d at 75 ; York, 357 F.3d at 21. Thus a sex offender treatment condition may be reasonable even where the present offense is not sexual in nature. See Mercado, 777 F.3d at 538.

Accordingly, we have upheld sex offender treatment conditions—despite the conviction not being a sex offense—where the defendant committed a prior sex offense in recent years, see York, 357 F.3d at 20–21

, or where the intervening time between a distant sex offense and the present conviction is marked by substantial criminal activity, see Mercado, 777 F.3d at 537–38 ; Morales–Cruz, 712 F.3d at 74–76 ; Sebastian, 612 F.3d at 50–51. More generally, even when a defendant has not previously committed a sex offense, a sex offender treatment condition may be proper if the defendant has otherwise exhibited an enhanced risk of sexual misconduct. See United States v. Prochner, 417 F.3d 54, 63–64 (1st Cir.2005).

Our analyses of restrictions on association with minors have followed an analogous approach. Such restrictions operate to protect the public, especially children, from the defendant, see United States v. Santiago, 769 F.3d 1, 9 (1st Cir.2014)

; United States v. Smith, 436 F.3d 307, 312 (1st Cir.2006), as well as to promote the defendant's rehabilitation. See Mercado, 777 F.3d at 538 ; Prochner, 417 F.3d at 64. Similar to sex offender treatment conditions, associational conditions may be proper where the defendant has recently committed a sex offense against a minor, or where the intervening time between a prior sex offense and the present conviction is marked by substantial criminal activity, see Mercado, 777 F.3d at 538–39 ; Santiago, 769 F.3d at 9, or where the defendant's conduct otherwise indicates an enhanced risk to minors, see Prochner, 417 F.3d at 64–65 ; Smith, 436 F.3d at 311–12. By contrast, we have vacated associational conditions where the defendant's prior sex offense occurred in the distant past, the intervening time was marked by lawful social activity, and the district court did not otherwise explain the need for such restrictions. See Del Valle–Cruz, 785 F.3d at 59–64.

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