United States v. Mercado

United States Court of Appeals
For the First Circuit

No. 13-2268

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE MERCADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before
Selya, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.

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.

February 6, 2015

*
Hon. David H. Souter, Associate Justice (ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, 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.

I. BACKGROUND

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

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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

1
The defendant stresses that the contested conditions were
not recommended by the probation office in the presentence
investigation report. This emphasis is misplaced. While
recommendations contained in a presentence investigation report are
often helpful to a sentencing court, those recommendations carry no
independent weight. See United States v. Miller, 116 F.3d 641, 685
(2d Cir. 1997).

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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

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 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:

I think those conditions are fairly standard
in sex offender cases. And again, the
Probation Office has the discretion to approve
a living arrangement that would include — or a
working arrangement that would involve either
living or working with someone under the age
of 18 . . . this is all part of Probation's
mitigating the risk and having the opportunity
to at least review the living arrangement to
determine whether it's appropriate or not.

This timely appeal ensued.

II. ANALYSIS

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.

A. The Sex-Offender Treatment Condition.

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

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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) (applying

plain error review where defendant's objections were on grounds

different than those raised on appeal).

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

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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

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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 are not so "grave or consequential" as to demand

resentencing under plain error review. Padilla, 415 F.3d at 221-

22. That reasoning applies here.

We add that the defendant is not without recourse should

the probation officer abuse the discretion delegated to her. A

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district court may at any time prior to the conclusion of a

supervised release term "modify, reduce, or enlarge the conditions

of supervised release." 18 U.S.C. § 3583(e)(2); see Fed. R. Crim.

P. 32.1 advisory committee's note (explaining that in event of

"unreasonableness on the part of the probation officer, the

probationer should have recourse to the sentencing court when a

condition needs clarification or modification"). If future

developments indicate that the probation officer is attempting

unreasonably or unnecessarily to require sex-offender treatment,

the defendant may move the district court for relief.

To say more about the delegation argument would be

supererogatory. Suffice it to say that we discern no plain error

in the court's grant of discretion to the probation officer with

respect to the defendant's possible participation in sex-offender

treatment.

2. Reasonableness. This brings us to the defendant's

attack on the reasonableness of the sex-offender treatment

condition. Refined to bare essence, the defendant argues that

supervised release is intended primarily to serve rehabilitative

ends and the sex-offender treatment condition fails to serve those

ends; that the district court did not provide a sufficient

justification for imposing the condition; and that the condition is

an unwarranted deprivation of liberty, unsupported by the record.

Since this claim of error was preserved below, our review is for

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abuse of discretion. See United States v. Smith, 436 F.3d 307, 310

(1st Cir. 2006); United States v. York, 357 F.3d 14, 19 (1st Cir.

2004).

We begin with first principles. A sentencing court is

authorized to impose any condition of supervised release that is

reasonably related to one or more of the permissible goals of

sentencing. See 18 U.S.C. § 3583(d)(1) (cross-referencing 18

U.S.C. § 3553(a)(1) and (a)(2)(B) through (D)); see also United

States v. Prochner, 417 F.3d 54, 63 (1st Cir. 2005); USSG

§5D1.3(b)(1). These goals include deterrence, rehabilitation, and

protection of the public. See 18 U.S.C. § 3583(d)(1). The risk of

recidivism among convicted sex offenders is "frightening and high,"

McKune v. Lile, 536 U.S. 24, 33 (2002), and sex-offender treatment

has been linked to reduced recidivism, see United States v.

Morales-Cruz, 712 F.3d 71, 75 (1st Cir. 2013); York, 357 F.3d at

21. In light of the defendant's prior conviction for a sex offense

against a minor and his prodigious criminal history, we think it

apparent that a sex-offender treatment condition is reasonably

related to rehabilitation and protecting the public.

The defendant's second point is no more telling. The

district court made pellucid that the supervised release term was

designed not only to help the defendant in abating his criminal

tendencies but also to curtail future registration violations.

This is a shorthand for saying that the condition was designed to

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facilitate both rehabilitation and deterrence. The district

court's design was consistent with these goals and, in the bargain,

promoted public safety. It is, therefore, nose-on-the-face plain

that the court's sentencing rationale was both plausible and

sufficient to ground the imposition of a sex-offender treatment

condition. See Morales-Cruz, 712 F.3d at 75; York, 357 F.3d at 21.

The defendant's last attack on the reasonableness of the

sex-offender treatment condition is easily repulsed. We agree with

the defendant that a failure to register under SORNA is not itself

a sex offense. See USSG §5D1.2, comment. (n.1). Contrary to the

defendant's importunings, however, sex-offender treatment may be

imposed as a condition of supervised release even when the offense

of conviction is not itself a sex offense. See, e.g., Morales-

Cruz, 712 F.3d at 72, 75; United States v. Sebastian, 612 F.3d 47,

48, 50-51 (1st Cir. 2010); York, 357 F.3d at 19-21.

The appropriateness of such a condition is evident here.

After all, the defendant had been convicted of sexually assaulting

a minor in the past. Even though that conviction occurred some ten

years prior to sentencing in this case, the defendant's persistent

criminal involvement over the intervening years makes his earlier

offense highly relevant. See York, 357 F.3d at 20-21; United

States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000). What is more, the

justification for the sex-offender treatment condition is bolstered

by the fact that the defendant continued to flout sex-offender

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registration requirements even during pretrial release. The sex-

offender treatment condition is, therefore, reasonably related to

the defendant's history and characteristics and is not an overly

broad deprivation of liberty.2

B. The Remaining Conditions.

The defendant's challenge to the remaining conditions

(all of which to some extent inhibit his interaction with minors)

has three facets. He starts with the argument that the conditions

do not serve the purposes identified by the district court. He

adds that the conditions are overbroad and unrelated to either his

history and characteristics or any legitimate sentencing objective.

Finally, the defendant — noting that he has two minor children —

argues that the conditions infringe upon his constitutional rights

of freedom of association and familial association. These

arguments are futile.

The sentencing court's rationale for imposing these

conditions is clear-cut. The court stated unequivocally that

compliance with the conditions would promote the defendant's

2
The defendant asseverates that when the offense of
conviction is not a sex crime, a "stronger nexus" must exist to
justify a sex-offender treatment condition. See United States v.
Dougan, 684 F.3d 1030, 1036 (10th Cir. 2012). This court, however,
has not adopted such a requirement. Reasonableness is the
touchstone; and a sex-offender treatment condition is valid as long
as it is reasonably related to the defendant's history and
characteristics and to the permissible purposes of supervised
release. See Morales-Cruz, 712 F.3d at 75; York, 357 F.3d at 20-
21.

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rehabilitation. In addition, the conditions were intended to

mitigate the obvious risk of recidivism by requiring the defendant

to obtain the probation officer's approval before coming into

contact with minors. With this tableau in mind, we have no

difficulty in concluding that the district court's rationale is

plausible.

The defendant's second argument is no more compelling.

The conditions appear to draw heavily on the defendant's history

and characteristics and are buttressed by case-specific reasons.

See United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007).

For one thing, the defendant previously had been convicted of a sex

offense against a minor. For another thing, the offense of

conviction is a failure to register under SORNA — a type of lapse

that has been credibly linked to an increased risk of recidivism.

See Morales-Cruz, 712 F.3d at 75. These facts make manifest that

the challenged conditions are reasonably related to the defendant's

prior history and characteristics. See, e.g., United States v.

Rodriguez, 558 F.3d 408, 411, 413-14 (5th Cir. 2009).

In an effort to show that the court mechanically applied

cookie-cutter conditions, the defendant pounces upon the court's

statement that these conditions are "fairly standard in sex

offender cases." But the defendant wrests that statement from its

contextual moorings: the court did not stop there but, rather, went

on to explain that these conditions were intended to mitigate the

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risk of this particular defendant re-offending. To seal the deal,

the court specifically linked the rehabilitative and deterrent

features of the supervised release term and its conditions to the

defendant's lengthy criminal history and his persistent failure to

comply with the terms of his pretrial release.

The defendant's third argument has a patina of

plausibility. Supervised release conditions that unduly restrict

a defendant's contact with his own minor children may spark

concerns related to the constitutional right of familial

association.3 See, e.g., United States v. Worley, 685 F.3d 404,

408 (4th Cir. 2012); United States v. Lonjose, 663 F.3d 1292, 1303

(10th Cir. 2011); United States v. Loy, 237 F.3d 251, 269-70 (3d

Cir. 2001). Here, however, the conditions are sufficiently

circumscribed so that no such concerns arise.

Importantly, the conditions imposed by the district court

do not comprise an outright ban on the defendant's ability to

associate (or even live) with his minor children. They merely

require that his association with his children be pre-approved by

the probation officer and take place in the presence of an adult

familiar with his criminal history. There is no basis for

believing that the probation officer will unreasonably withhold

permission for the defendant to see his own children. If she does,

3
The record reveals that the defendant has two minor children
living in Florida with whom he has had some contact. He has
neither resided with them nor supported them, though, since 2007.

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the defendant has an easily available avenue for redress. See 18

U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1 advisory committee's

note.

That ends this aspect of the matter. The group of

supervised release conditions restricting the defendant's

interactions with minors do not impress upon the defendant a

greater deprivation of liberty than is reasonably necessary to

serve the goal of deterrence. See, e.g., United States v. Tang,

718 F.3d 476, 487 (5th Cir. 2013) (per curiam); United States v.

Roy, 438 F.3d 140, 144-45 (1st Cir. 2006). Thus, the district

court did not act outside the commodious encincture of its

discretion in imposing these conditions.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the challenged conditions of supervised release.

Affirmed.

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