United States v. Garrasteguy

United States Court of Appeals
For the First Circuit

No. 07-2714

UNITED STATES OF AMERICA,

Appellee,

v.

NATHAN GARRASTEGUY,

Defendant-Appellant.

No. 07-2715

UNITED STATES OF AMERICA,

Appellee,

v.

AMOS CARRASQUILLO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Stahl and Howard,
Circuit Judges.

Ryan M. Schiff, with whom John Salsberg and Salsberg &
Schneider, were on brief, for appellant Carrasquillo.
 Mark W. Shea, with whom Shea and LaRocque, was on brief for
appellant Garrasteguy.
Mark T. Quinlivan, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney and John A. Wortmann,
Jr., Assistant United States Attorney, were on brief, for appellee.

March 6, 2009
 HOWARD, Circuit Judge. In early 2006, federal and local

authorities commenced Operation Brickhouse to combat drug

trafficking in the Bromley-Heath Housing Project (Bromley-Heath)

located in Jamaica Plain, Massachusetts. The investigation snared

the appellants Amos Carrasquillo and Nathan Garrasteguy through a

series of controlled drug purchases executed by a cooperating

witness. Faced with unshakable evidence of their illicit

activities, the appellants pleaded guilty to several counts of

distributing cocaine base, in violation of 21 U.S.C. § 841, and to

conspiracy to distribute cocaine base, in violation of 21 U.S.C. §

846. The issue of the drug weights involved in the offenses,

however, was reserved and tried to a jury.1

After a six-day trial, at which the appellants presented

no evidence, the jury determined that the conspiracy involved

between five and twenty grams of cocaine base. At sentencing, the

judge accepted the government's sentencing recommendation, declined

to give Carrasquillo any credit for acceptance of responsibility,

and sentenced him to 132 months of imprisonment followed by eight

years of supervised release. Garrasteguy received a sentence of

1
The default statutory maximum in crack cocaine cases where the
jury does not find a quantity of drugs, or in which the drug
quantity is undetectable, is twenty years. 21 U.S.C. §
841(b)(1)(C). But if a defendant is convicted of possessing at
least five grams of cocaine base, the statutory maximum sentence is
enhanced to forty years. 21 U.S.C. § 841(b)(1)(B)(iii).

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ten years followed by twelve years of supervised release.2 As a

special condition of supervised release, the sentencing court

prohibited the appellants from entering Suffolk County,

Massachusetts during the term of his supervised release, without

prejudice to their right to return to the sentencing court to seek

revision or rescission of this special condition. See 18 U.S.C. §

3583(e)(2).

Carrasquillo appeals the denial of his acceptance of

responsibility credit, and both appellants challenge the special

condition of supervised release. We affirm.

I. Acceptance of Responsibility

We begin with Carrasquillo's acceptance of responsibility

argument, which, stripped to its essentials, is a request that he

be permitted to run with the hares and hunt with the hounds. In

concrete terms, Carrasquillo believes that he is entitled to a two

point reduction in his offense level for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a) -- despite having

gone to trial regarding drug weight -- because he pleaded guilty to

the rest of the indictment. This claim fails.

During the Rule 11 plea colloquy, the district court

2
Garrasteguy was also denied credit for acceptance of
responsibility, but he does not appeal that issue, because such
credit cannot reduce his mandatory minimum sentence of 120 months.
Garrasteguy qualifies for a mandatory minimum sentence due to a
previous felony conviction for illegal sales of controlled
substances. See 21 U.S.C. § 851.

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advised both defendants of the possibility that if a jury concluded

that they were responsible for drug weights sufficient to trigger

enhanced penalties, it might not grant either of them any reduction

for acceptance of responsibility. The court stated:

THE COURT: Now, again, I don't mean this in
any way as a threat, you must understand that
if we go to trial . . . and [if] you lose,
it's more than five grams, and the government
is put to the expense and time of the trial,
there are situations, your lawyers will argue
them to me, where I should still give some
discount. And I have no hard and fast rule.
But you understand that I'll be keeping in
mind that we've spent all the time and expense
on a trial and you've been found guilty of
more than five grams. And I will take that
into account. I think under the law I'm
required to.

Both defendants indicated that they understood the court's warning.

Despite the court's statement, the defendants proceeded to try to

a jury the issue of drug weight. During the course of this trial,

the defendants did nothing more than cross-examine witnesses; the

defense rested at the close of the government's case. Within two

hours of receiving the case, the jury returned a verdict finding

the defendants responsible for at least five grams of cocaine base.

After trial, the probation department, in its pre-

sentence report (PSR), included a recommendation that Carrasquillo

be given a two-level reduction in the offense level pursuant to

section 3E1.1(a) of the Sentencing Guidelines, bringing

Carrasquillo's total offense level to 27. The government objected,

arguing that Carrasquillo's demand for a jury trial on drug weight

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not only demonstrated a failure to accept responsibility for the

full extent of his conduct, but also falsely denied the extent and

nature of the relevant conduct.

At the sentencing hearing, Carrasquillo reiterated his

desire for the acceptance of responsibility reduction.3 The

sentencing court considered Carrasquillo's argument, but decided

not to credit Carrasquillo with any reduction of the total offense

level based on acceptance of responsibility. The court rested its

decision primarily on the fact that Carrasquillo did not spare the

government from the time and expense of a trial. In reaching this

conclusion, the district court remarked that the acceptance of

responsibility provision is an "empty sophistry," that should be

viewed as a discretionary reduction in the total offense level to

reward defendants who spare the government the expense of a trial.

("What [the acceptance of responsibility reduction] is is a

discount that is usually granted, it's in my discretion for sparing

the government expense.") Carrasquillo's argument on appeal is

that the sentencing court's comments constitute a misinterpretation

3
At sentencing, counsel for Carrasquillo repeated the arguments in
favor of the acceptance of responsibility credit contained in the
PSR, which he first made in his sentencing memorandum, and
emphasized Carrasquillo's position that he was entitled to the
acceptance of responsibility credit. ("Even if your Honor's not
giving him the acceptance of responsibility, he admitted to
that."). Thus, Carrasquillo's claim is preserved. See United
States v. Gonczy, 357 F.3d 50, 52 (1st Cir. 2004)(where defendant
objects and district court was aware of objection and underlying
reasons, sentencing objection preserved for appellate review).

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of the Sentencing Guidelines, and thus the sentencing court

misapplied the Guidelines.

We review a sentencing court's determination of whether

a defendant accepted responsibility for clear error. United States

v. Glaum, 356 F.3d 169, 180 (1st Cir. 2004); United States v.

Deppe, 509 F.3d 54, 60 (1st Cir. 2007) ("Recognizing the special

difficulty of discerning, on a cold record, whether a defendant's

expressions of remorse were in earnest, we review a sentencing

court's judgment about acceptance of responsibility for clear

error.")(citing United States v. Dethlefs, 123 F.3d 39, 43 (1st

Cir. 1997); United States v. Royer, 895 F.2d 28, 29 (1st Cir.

1990); U.S.S.G. § 3E1.1, cmt. (n.5)). Nevertheless, we continue

to conduct a plenary review of any related legal questions,

including the interpretation of the sentencing guidelines. Deppe,

509 F.3d at 60 (citing United States v. Talladino, 38 F.3d 1255,

1263 (1st Cir. 1994)).

The Sentencing Guidelines recognize the "legitimate

societal interests" in acceptance of responsibility and therefore

allow sentencing judges to provide a measure of leniency to those

defendants who accept responsibility for their actions. U.S.S.G.

§ 3E1.1 cmt. backg'd. The Guidelines therefore dispense credit for

acceptance of responsibility in two flavors: a two-point reduction

at the discretion of the sentencing court if the defendant "clearly

demonstrates acceptance of responsibility for his offense."

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U.S.S.G. § 3E1.1(a). And, if, in a serious offense, a defendant

accepts responsibility at an early stage of the investigation, a

defendant may be eligible for an additional one point reduction in

the offense level. U.S.S.G. § 3E1.1(b). This second reduction is

available only to defendants who accept responsibility early enough

to save the government the time and expense of preparing for trial,

and consequently, this further reduction is only available "upon

motion of the government." Id.

Defendants are not, however, automatically entitled to

even the two-point acceptance of responsibility reduction. United

States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000). The

onus of proving acceptance of responsibility is on the defendant.

Id. (defendant must "demonstrate that he has taken full

responsibility for his actions and he must do so candidly and with

genuine contrition")(quoting United States v. Saxena, 229 F.3d 1,

9 (1st Cir. 2000)). To prove acceptance of responsibility, a

defendant must truthfully admit or not falsely deny the conduct

comprising the conviction, as well as any additional relevant

conduct for which he is accountable. Glaum, 356 F.3d at 180

(citing U.S.S.G. § 3E1.1, cmt. (n. 1(a))).4

4
It should be noted, however that a defendant is not required to
volunteer or affirmatively admit relevant conduct beyond the
offense of conviction to obtain an acceptance of responsibility
reduction. U.S.S.G. § 3E1.1, cmt. (n.1(a)). Similarly, a
defendant "may remain silent in respect to relevant conduct beyond
the offense of conviction without affecting his ability to obtain
a reduction" for acceptance of responsibility. Id.

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 We have further held that defendants who proceed to trial

and put the government to its proof normally do not qualify for any

reduction for acceptance of responsibility. Deppe, 509 F.3d at 60;

see also U.S.S.G. § 3E1.1, cmt. (n.2). Proceeding to trial,

however, does not constitute a per se bar to credit for acceptance

of responsibility. Instead, proceeding to trial creates a

rebuttable presumption that no credit is available. Deppe, 509

F.3d at 60.

Carrasquillo's argument is that his guilty plea -- rather

than the trial -- resulted in his conviction and that his testing

of the government's proof regarding drug weight should not alter

the fact that in his guilty plea, he accepted responsibility for

his actions. Accordingly, he argues that the sentencing court's

description of the acceptance of responsibility credit as "an empty

sophistry" and the court's further characterization of the credit

as an expense calculation demonstrates that the sentencing court

misapplied the guidelines.

The government responds that Carrasquillo's challenge to

the drug weight required it to introduce evidence regarding all of

the elements of the crimes to which Carrasquillo pleaded guilty.

Moreover, the government claims that the defendant's rigorous

challenge to the drug weight does not evince the candid acceptance

of responsibility with "genuine contrition" that is a prerequisite

to receiving a reduction. See Franky-Ortiz, 230 F.3d at 408.

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 In the circumstances of this case, we agree with the

government and with the sentencing court's implicit finding that

Carrasquillo failed to demonstrate acceptance of responsibility.

He went to trial, and yet, he has adduced no evidence to rebut the

presumption that his trial with respect to drug weight rendered him

ineligible for any acceptance of responsibility-based reduction,

nor has he so much as argued against the presumption. Furthermore,

his actions in requesting a trial regarding drug weight were not

consistent with acceptance of responsibility for relevant conduct.

See Glaum, 356 F.3d at 180 (sentencing court did not clearly err

where it denied acceptance of responsibility reduction to defendant

who offered to plead guilty to conspiracy involving lesser quantum

of drugs). See also, e.g., United States v. Acosta, 534 F.3d 574,

580 (7th Cir. 2008) (affirming district court denial of acceptance

of responsibility reduction where defendant who pleaded guilty

challenged certain factual assertions in PSR); United States v.

Annis, 446 F.3d 852, 857-58 (8th Cir. 2006) (affirming district

court denial of acceptance of responsibility reduction where

defendant pleaded guilty to offense but refused to admit to any

drug quantity and challenged reliability of prior statement to

authorities).

In a final attempt to gain traction, Carrasquillo argues

that the sentencing court's characterizations of the acceptance of

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responsibility reduction suggest that the court did not properly

apply this provision of the Guidelines.

The acceptance of responsibility reduction acknowledges

legitimate societal interests. U.S.S.G. § 3E1.1 cmt., backg'd.

The provision also recognizes the longstanding judicial practice of

more leniently sentencing defendants who evidence contrition and

cooperate with law enforcement. See United States v. Frazier, 971

F.2d 1076, 1084 (4th Cir. 1992). As has been said, acceptance of

responsibility provisions recognize and support varied societal

interests including the reduction of crime, restitution, early

withdrawal from criminal activity, the increased potential for

rehabilitation among those who feel and show true remorse for their

anti-social act, as well as encouraging judicial and law

enforcement economy. Id. at 1084-85 (citing United States v.

Belgard, 694 F. Supp. 1488, 1497 (D. Or. 1988)). Thus, the

acceptance of responsibility determination does not necessarily

reduce to merely an expense calculation, but rather can serve

several important societal interests.

As we have noted, the sentencing court did consider the

fact that Carrasquillo pleaded guilty, but also balanced that plea

against Carrasquillo's pressing of the drug weight issue at trial,

in which he challenged the evidence against him. Based on this

balancing, the court concluded that Carrasquillo was not entitled

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to any credit for acceptance of responsibility.5 Regardless of

whether the sentencing court acknowledged the all of the varied

interests recognized by the acceptance of responsibility credit,

the court nevertheless properly denied the credit to Carrasquillo.

II. Exclusion From Suffolk County

We now turn to the issue whether the sentencing court

could impose a condition of supervised release that prohibited the

defendants from entering an entire county during the full term of

supervised release. The breadth and duration of this condition

give us pause, but on this record we are unable to conclude that

the district court plainly erred in imposing the special condition.

We review a sentencing court's decision to impose special

conditions of supervised release for abuse of discretion. United

States v. Riccio, 529 F.3d 40, 48 (1st Cir. 2008). If, however, a

defendant has an opportunity to object to a special condition at

sentencing, and stays silent, we review the imposition of a

supervised release condition for plain error only. United States

5
The district court had previously noted that it had "no hard and
fast rule" regarding an acceptance of responsibility reduction if
the defendants contested the drug weight at trial, but cautioned
the defendants that it would "be keeping in mind that we've spent
all the time and expense on a trial and you've been found guilty of
more than five grams. And I will take that into account. I think
under the law, I'm required to." Thus, while it is true that the
district court, in its characterization of the Sentencing
Guidelines overlooked differences between the two sections on
acceptance of responsibility, one for actual acceptance and the
other for early acceptance, nonetheless the basis for denying a
downward departure was sound, and the district court certainly did
not commit clear error in making such a denial.

-12-
v. Padilla, 415 F.3d 211, 219 (1st Cir. 2005) (en banc); United

States v. Perazza-Mercado, 553 F.3d 65, 74 (1st Cir. 2009); Riccio,

529 F.3d at 48.

Carrasquillo claims that he properly preserved his

objection to the special condition of supervised release.6 The

government originally requested, in its sentencing memorandum, a

special condition of supervised release ordering both defendants to

stay outside the City of Boston.7 In his sentencing memorandum,

Carrasquillo objected to the government's proposed condition

primarily on constitutional grounds, claiming that the condition

would impermissibly impinge on (unspecified) rights protected under

the First, Fifth, and Eighth Amendments to the U.S. Constitution,

and that the condition would preclude Carrasquillo from being fully

involved in raising his young son.

At sentencing, however, the district court appeared far

more interested in the special condition of supervised release than

Carrasquillo. The district court sua sponte noted that it was not

6
Appellant Garrasteguy claims that he preserved by relying on co-
defendant Carrasquillo's objection, weak as it may have been.
Given our disposition on the merits, we needn't tarry over
Garrasteguy's dubious contention that his claim has not been
forfeited.
7
When it imposed the condition the district court sua sponte and
without comment expanded the scope of the condition to include all
of Suffolk County, which includes not only the City of Boston, but
also the communities of Chelsea, Revere, and Winthrop. Neither the
government nor the defendants objected to this enlargement of the
scope of the condition.

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familiar with such conditions, and engaged in a dialogue regarding

the condition with not only the prosecutor, but also a

representative of the probation department to satisfy itself that

the condition was reasonable and enforceable.

By contrast, at sentencing, Carrasquillo mentioned the

special condition only in passing, and when he did discuss it he

noted that the condition was unimportant:

The other thing I would just comment on very
briefly is this issue of whether or not to be
in Boston or not be in Boston. Winning that
from our standpoint and not getting what we're
looking for in terms of the length of
incarceration would be a Pyrrhic victory.
It's unimportant compared to the amount of
time --

Carrasquillo's counsel specifically termed the condition

"unimportant" and remained focused on seeking a reduction in his

sentence. This amounted to at least a forfeiture of the objection,

if not an outright abandonment of it. See United States v. Walker,

538 F.3d 21, 23 (1st Cir. 2008) (describing difference between

waiver and forfeiture). Carrasquillo made a strategic decision in

making his presentation to the sentencing judge: he focused his

efforts on obtaining a lower sentence. In so doing, he essentially

left his objections regarding this condition of supervised release

by the wayside.

Moreover, even though the defendants now argue that the

special condition's geographic scope (all of Suffolk County) was

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impermissibly broad, neither of them advanced a narrower area of

exclusion to the sentencing court. Similarly, the defendants were

entirely silent regarding the particulars of this condition,

including the availability of exceptions, as well as the scope and

breadth of the condition. Consequently, the sentencing court did

not have the opportunity to evaluate alternatives that might make

the exclusion more acceptable. It would be both unfair and an

inappropriate deployment of limited judicial resources to permit

the defendants to raise such specific concerns on appeal. Cf.

United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) (holding

that defendant cannot challenge a district court’s ruling at

sentencing with an argument not raised below in the papers or at

sentencing). Consequently, we review the condition for plain error

only.

District courts have significant flexibility to impose

special conditions of supervised release. A district court may

impose as a condition of supervised release most discretionary

conditions identified in 18 U.S.C. § 3563(b),8 or any other

condition the court deems appropriate. All such conditions,

however, must be "reasonably related" to the factors set forth in

§ 3553(a),9 may involve "no greater deprivation of liberty than

8
Specifically, the court can impose any condition set forth in 18
U.S.C. §§ 3563(b)(1) through (b)(10) and (b)(12) through (b)(20).
9
The factors include (1) the nature and circumstances of the
offense and the history and characteristics of the defendant, 18

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reasonably necessary" to achieve the purposes of §§ 3553(a)(2)(c),

(a)(2)(D), (viz. to protect the public and promote the

rehabilitation of the defendant), and must be consistent with any

pertinent policy statement of the United States Sentencing

Commission. 18 U.S.C. § 3583(d); see also United States v. York,

357 F.3d 14, 20 (1st Cir. 2004).

Any conditions of supervised release that a sentencing

court chooses to impose must, of course, be supported by the

record. United States v. Scherrer, 444 F.3d 91, 96 (1st Cir. 2006)

(en banc). But this requirement can be satisfied without a written

or oral explanation of the reasons supporting the condition if we

can infer the court’s reasoning by comparing what was argued by the

parties or contained in the pre-sentence report with what the court

did. United States v. Jiminez-Beltre, 440 F.3d 514, 519 (1st Cir.

2006) (en banc).

The government advanced several reasons for excluding the

defendants from the City of Boston. The government noted that the

Bromley-Heath project is a refuge of affordable housing for

families of modest means, and that it has been beset with an

exceedingly high level of gun and drug crimes. The government

U.S.C. § 3553(a)(1); (2) the need to afford adequate deterrence to
criminal conduct, 18 U.S.C. § 3553(a)(2)(B); (3) the need to
protect the public from future crimes of the defendant, 18 U.S.C.
§ 3553(a)(2)(c); and (4) the need to provide the defendant with
needed educational or vocational training, medical care or other
correctional treatment in the most effective manner, 18 U.S.C. §
3553(a)(2)(D).

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argues that the sentencing court, pursuant to sections 3553(a)(1)

and (a)(2)(C), properly took into account the effects of the

defendants' offenses on the Bromley-Heath community. Furthermore,

the government noted that both defendants had repeatedly

disregarded Boston Housing Authority's (BHA) "no-trespass" orders

denying them permission to enter Bromley-Heath. Finally, the

government noted Carrasquillo ignored a prior state court probation

condition ordering him to stay out of all BHA properties. In the

face of these orders, the defendants sold crack cocaine several

times at or near Bromley-Heath. The government therefore argued

that the defendants had to be excluded from a larger geographic

area. The sentencing court, without objection from the defendants,

appears to have concluded that Suffolk County represents a

sufficient geographic exclusion and is administratively feasible to

enforce, without elaborating on the deprivation of liberty this

exclusion entails.

Although we have never before passed on a special

condition of supervised release that bars an individual from

entering an entire county, two circuits have upheld similar

conditions.10 In United States v. Sicher, the Third Circuit

10
The Sixth Circuit has also upheld a related special condition
requiring a defendant, who had a history of 38 prior criminal
convictions and who repeatedly violated the conditions of his then
pending period of federal supervised release, live in a city away
from his home for a period of one year. United States v.
Alexander, 509 F.3d 253 (6th Cir. 2007).

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approved, on plain error review, a special condition of supervised

release prohibiting the defendant from entering the Allentown, Pa.,

metro area, which consists of two counties, for a period of ten

years.11 239 F.3d 289 (3d Cir. 2000). In reaching this conclusion,

the Sicher court relied on two salient considerations. First, it

noted that the sentencing court had relied on ample record evidence

demonstrating that the defendant's criminal history was uniquely

tied to the mal-influence of her family and associates in

Allentown. Id. at 290. Second, the special condition of

supervised release did not operate as a total banishment because

Sicher was free to request permission from her probation officer to

visit the counties covered in the supervised release condition.

Id. at 292.

Similarly, in United States v. Cothran, the Eleventh

Circuit, on an abuse of discretion review, upheld a special

condition of probation that prohibited a defendant from entering

Fulton County, Georgia during the first two years of probation.

855 F.2d 749, 751 (11th Cir. 1988). In reaching this conclusion,

the Cothran court found several factors persuasive. First, Cothran

could have been sentenced to up to 30 years but received a sixty-

six month sentence, all but six months of which were suspended.

11
This condition of supervised release was imposed as part of the
district court's decision to grant the defendant's motion for a
sentence modification pursuant to 18 U.S.C. § 2255, which reduced
the defendant's six-year sentence to time served (approximately 10
months). Sircher, 239 F.3d at 290.

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Id. at 750. In addition, the Cothran court relied on the district

court's finding that Cothran, a charismatic twenty-six year-old,

was popular with adolescents in his native Fulton County and had

been convicted of willfully distributing cocaine to a minor. Id.

Finally, the probation condition at issue in Cothran permitted

Cothran to enter Fulton County with the permission of his probation

officer, and contemplated the possibility that Cothran could reach

an arrangement with his probation officer to permit repeated entry

into certain portions of the county for educational or employment

purposes. Id. at 752. On those facts, the Cothran court found

that the district court's probation condition was not an abuse of

discretion.

The cases permitting exclusion from a defined

geographical area do not entirely ease our doubts about the breadth

and duration of the supervised release condition imposed here.

Most courts have not authorized a blanket exclusion from a

particular area lasting as long as the exclusions in the present

case (eight and twelve years). Moreover, such conditions have

tended to be imposed after a substantial reduction of a defendant's

sentence, which also did not occur here.

We are even more uneasy over the fact that the condition

in this case is not subject to any qualification. Exclusion

conditions approved elsewhere have permitted defendants to seek

authorization from probation officers for entry into the

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geographical areas from which the defendants are excluded. Here,

however, the sentencing court imposed an unqualified banishment

from Suffolk County for a period of as long as twelve years with

only the possibility of seeking a modification of the condition

from the court itself at some later date, pursuant to section

3583(e).12 Given its importance as a government center where a

citizen may be required to conduct business with government

officials, the defendants could well have significant reasons for

entering Suffolk County. Moreover, at this early juncture, it is

impossible to ascertain the level of either defendant's

rehabilitation, which might impact a decision to permit the

defendants to enter Suffolk County.

Additionally, the evidence justifying the imposition of

the present condition is not as stark as in other cases upholding

exclusions. It is true that Garrasteguy and Carrasquillo had at

the time of their convictions previously violated BHA-imposed "no

12
The showing required for a defendant to obtain a modification of
a condition of supervised release pursuant to section 3583(e)is an
open question in this circuit. Compare United States v. Smith, 445
F.3d 713, 716-17 (3d Cir. 2006) (reviewing district court's
modification of supervised release for abuse of discretion and
leaving open question of whether "significantly changed or
extraordinary" circumstances are prerequisite to modification) with
United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)("Section
3583 provides the district court with retained authority to . . .
modify terms and conditions [of supervised release] . . . in order
to account for new or unforseen circumstances.").
In light of the potential consequences that could flow from a
complete inability to enter Suffolk County, a somewhat relaxed
showing might suffice to obtain a modification of the supervised
release condition here.

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trespass" orders at Bromley-Heath, and that Carrasquillo was

subject to a wider order prohibiting him from entering any public

housing project in Boston. But this case does not include the

fulsome record present Sicher, nor do the appellants' records

evince the same level of criminality that the Sixth Circuit found

sufficient to support a prohibition from entering the defendant's

reservation in Alexander. Thus, exclusion from all of Suffolk

County could be a large leap, if the sentencing court had evidence

regarding the suitability of a more circumscribed geographic

boundary.

But the defendants did not offer any of these arguments

below, nor did they suggest any alternative, more limited,

exclusion boundary to aid the district court in the exercise of its

discretion. Therefore, as we have noted, the condition of

supervised release is subject only to plain error review, and the

condition meets this minimal hurdle. In order to show a district

court committed plain error, a defendant must demonstrate (1) the

existence of an error; (2) that it is plain; (3) that such plain

error affected substantial rights; and (4) that left uncorrected,

such error seriously affects the fairness integrity or public

reputation of judicial proceedings. United States v. Carrasco, 540

F.3d 43, 42 (1st Cir. 2008); see also United States v. Olano, 507

U.S. 725, 732 (1993).

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 Although it is axiomatic that the constitutional rights

of supervised releasees and probationers are limited, United States

v. Knights, 534 U.S. 112, 119 (2001), such individuals, by virtue

of their status, do not forfeit all of their constitutional rights.

Yet, even assuming that exclusion from all of Suffolk County for a

lengthy period would unjustifiably impinge the defendants'

fundamental rights, we cannot conclude that leaving the imposed

condition intact would bring judicial proceedings into public

disrepute. The record, which indicates that both defendants have

committed several criminal offenses, including drug offenses at

Bromley-Heath, and further that both defendants have violated prior

"no trespass" orders with respect to Bromley-Heath, provides some

support for the condition of supervised release. Moreover, this

condition expressly preserves the defendants' ability to return to

the district court for modification of the condition. The

condition does not constitute a miscarriage of justice.

Accordingly, we affirm the denial of credit for

acceptance of responsibility with respect to defendant

Carrasquillo, and, noting again that the supervised release

condition is without prejudice to their rights to petition for

modification of the condition, we affirm the condition of

supervised release with respect to both defendants.

It is so ordered.

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