United States v. Sanchez

• Decision Date: 02 February 2021
• Docket Number: No. 19-11261,19-11261
• Parties: UNITED STATES OF AMERICA, Plaintiff—Appellee, v. EDWARD SANCHEZ, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff—Appellee, v. EDWARD SANCHEZ, Defendant—Appellant.

No. 19-11261

United States Court of Appeals for the Fifth Circuit

February 2, 2021

Appeal from the United States District Court for the Northern District of Texas

USDC No. 4:19-CR-235

Before JONES, SMITH, and ELROD, Circuit Judges.

PER CURIAM:^*

Edward Sanchez was convicted of sexually assaulting his then-girlfriend's daughter, and in 1992 he was sentenced to seven years of probation for that offense. In 2009, Sanchez pleaded guilty to trafficking methamphetamine. In 2019, the district court sentenced Sanchez for violating the terms of his supervised release for the drug-trafficking offense.The district court imposed various special conditions of supervised release relating to Sanchez's sexual-assault offense. Sanchez challenges three of those special conditions on appeal. Because the treatment condition, location restriction, and computer-monitoring conditions are reasonably related to Sanchez's criminal history, we AFFIRM.

I.

Edward Sanchez was convicted in Texas state court for "Indecency With a Child - Contact" for touching the genitals of a five-year-old girl, and in 1992 he was sentenced to seven years of probation for that offense. See Tex. Penal Code § 21.11(a)(1) (West 1984). The sentence was for one instance occurring "on or about May 28, 1987." The record indicates further accusations that Sanchez sexually abused the girl—his ex-girlfriend's daughter—for five years, beginning when she was four years old.

The record recounts four occasions of sexual abuse in detail. In each instance Sanchez either touched the child's genitals or forced the child to touch his genitals or both. At least three of the instances appear to have occurred in the child's home. One of those instances occurred when the child's mother was taking a bath in the other room. Sanchez has denied that those instances occurred. Instead, he said that on one occasion the child walked in on him engaging in sexual activity with the child's babysitter. According to Sanchez, he and the babysitter "continued sexual contact after the child walked in," and the child "kissed his penis 2, 3, or 4 times."¹

The Texas court sentenced Sanchez to seven years of probation for his sexual-assault offense and ordered him "to participate in sex offender treatment." Sanchez did not meet the attendance requirements of thattreatment, and he was "unsuccessfully discharged." While on probation, Sanchez also committed a separate drug offense—possession of cocaine with intent to deliver. The Texas court revoked Sanchez's probation and sentenced him to seven years in prison for the revocation and seven years for the drug offense, to run concurrently. Sanchez was released from Texas state prison in 2004.

In 2008, Sanchez transported $8,800 worth of methamphetamine from Texas to Missouri to sell to a repeat buyer there. Sanchez was arrested and indicted in the Eastern District of Missouri. There he pleaded guilty to possession of, with intent to distribute, 50 grams or more of a substance containing methamphetamine. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). The most recent conditions of supervised release for this 2008 drug-trafficking offense are the subject of this appeal.

Sanchez was initially sentenced to 135 months in prison, followed by eight years of supervised release. The prison term was later reduced to 120 months. The initial sentence included special conditions of supervised release related to the current drug-trafficking offense. It did not contain conditions related to Sanchez's 1987 sexual-assault offense.

In 2017, at the end of his term of imprisonment, Sanchez requested to relocate home to Fort Worth in the Northern District of Texas for his supervised release. The probation office for the Northern District of Texas requested that the district court add conditions of supervised release related to Sanchez's 1987 sexual-assault offense before relocation. The additional conditions (1) prevented Sanchez from possessing pornography or patronizing any place where pornography was available, (2) required Sanchez to register as a sex offender, and (3) required Sanchez to "participate in sex-offender treatment." With Sanchez's consent, the District Court for theEastern District of Missouri added those conditions, and Sanchez moved back to Fort Worth.

Sanchez did not comply with these added conditions of supervised release. He once again failed to complete his sex-offender treatment, and he also purchased lotion from a store where pornography was available. Just as he did with the sex-offender treatment ordered by the Texas state court following his conviction for the 1987 sexual-assault offense, Sanchez missed treatment sessions. Sanchez also continued to drink alcohol, have unsupervised contact with children, and deny responsibility for his 1987 sexual-assault offense—all violations of or a lack of progress in his sex-offender treatment. Sanchez's probation officer was also concerned by his visits to Chuck E. Cheese, a water park, and Trinity Park, as well as his weekly contact with his grandchildren.

In response, in June 2019 the probation officer moved for the District Court for the Eastern District of Missouri to add a special condition preventing Sanchez from "unsupervised contact with minors . . . at any location, including" places where children "frequent or congregate." The probation officer also moved to transfer Sanchez's case to the District Court for the Northern District of Texas for convenience. The district court added the special condition, and the case was transferred.

In the Northern District of Texas, Sanchez continued to violate the conditions of his supervised release, including by living with his eleven-year-old grandniece. He was "unsuccessfully discharged" from his sex-offender treatment in September 2019 after having completed only 14% of his treatment plan. Sanchez continued to minimize his responsibility for his 1987 sexual-assault offense, and he failed to submit a report to his probation officer.

In October 2019, Sanchez was arrested for violating the conditions of his supervised release, and the district court scheduled a revocation hearing following Sanchez's initial appearance. At the revocation hearing, Sanchez pleaded true to three violations: (1) failing to complete sex-offender treatment; (2) patronizing a place where pornography was available; and (3) failing to submit a monthly report for September 2019.

The district court revoked Sanchez's supervised release and sentenced him to six months' imprisonment and twenty-four months of supervised release. Sanchez objected to the supervised release and the special conditions of supervised release. On appeal, Sanchez challenges three special conditions imposed by the district court:

(1) Sanchez must "participate in sex-offender treatment services as directed by the probation officer until successfully discharged";

(2) Sanchez cannot "have access to or loiter near school grounds, parks, arcades, playgrounds, amusement parks, or other places where children congregate, except as may be approved by the probation officer";

(3) Sanchez is subject to a number of computer-monitoring conditions including: "ongoing monitoring of his[] computer," preliminary and subsequent searches of his computer and internet-usage data, a limit on the devices and software he may use, a ban on certain social-media websites, and a ban on peer-to-peer messaging, file sharing, or chat rooms.

II.

We review preserved challenges to conditions of supervised release for abuse of discretion. United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016). If the defendant fails to preserve a claim of error, however, we review for plain error only. Id. The government contends that Sanchez failed toobject to (1) the condition that he participate in sex-offender treatment and (2) the condition restricting his use of social media. We disagree.

Preservation of error in the district court is governed by Federal Rule of Criminal Procedure 51, which states, "A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection." Fed. R. Crim. P. 51(b). This rule gives parties two options to preserve error: (1) inform the court of the desired action; or (2) object to the court's action and state the grounds for the objection. Holguin-Hernandez v. United States, 140 S. Ct. 762, 764 (2020).

The Supreme Court recently further explained the first option, saying, "By 'informing the court' of the 'action' he 'wishes the court to take,' . . . a party ordinarily brings to the court's attention his objection to a contrary decision."² Id. at 766 (quoting Fed. R. Crim. P. 51(b)). Preservationof error does not "require an objecting party to use any particular language or even to wait until the court issues its ruling." Id. at 766. In the sentencing context, a post-pronouncement objection is not necessary if the defendant had already advocated for a more lenient sentence. See id.; see also United States v. Hinojosa-Almance, 977 F.3d 407, 412 n.13 (5th Cir. 2020).

At the sentencing hearing, Sanchez's counsel advocated for the court not to reimpose special conditions related to Sanchez's 1987 sexual-assault conviction. Sanchez then specifically identified two conditions at issue: the condition added in 2017 that Sanchez participate in sex-offender treatment—"all of the sudden in 2017 he's asked to go to sex offender treatment"—and the condition added in 2019 that he avoid places where children congregate—"Later there are conditions imposed about not being around children or going to places where children may be." Sanchez's counsel elaborated on the latter condition, contending that Sanchez's trips to Chuck E. Cheese and water parks merely showed that he was trying to be an involved parent and...