United States v. Rezendes

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 2, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-1194
(D.C. No. 1:12-CR-00365-RBJ-1)
DAVID JOSEPH REZENDES, a/k/a (D. Colorado)
Joseph David Rezendes, a/k/a Joe
Rezendes,

Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.
_________________________________

Appellant David Rezendes appeals the district court’s imposition of an

occupational restriction as a condition of supervised release. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

In 2010, police officers discovered Mr. Rezendes sitting behind the wheel of a

parked car in Larimer County, Colorado. Mr. Rezendes admitted he had been drinking

and he was charged with driving while ability impaired. Although Mr. Rezendes entered

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a guilty plea, he believed the County had acted unfairly in prosecuting him because he

was not actually operating the vehicle. On July 10, 2010, Mr. Rezendes was sentenced to

one year probation.

On September 22, 2010, Mr. Rezendes initiated a computer attack, known as a

distributed denial of service attack, against the Larimer County website. During the

attack, a number of computers directed packets of data containing vulgar and derogatory

messages toward the county’s servers. The volume of these data packets was such that it

overwhelmed the servers, disrupting county operations. County employees were unable

to access email, court records, and other internet-enabled functions. In addition, the

public was unable to access the Larimer County website for a period of time due to the

attack.

Authorities traced the attack to computers owned by Mr. Rezendes and obtained a

search warrant for his residence. During the search, officers seized several computers,

flash drives, and recordable discs. The subsequent examination of these computers and

memory devices revealed that computers owned by Mr. Rezendes had remotely

controlled other vulnerable computers and directed them to perpetrate the attack.

Authorities determined that Mr. Rezendes’s computers also scanned these vulnerable

computers for credit card information and login credentials.

The search of Mr. Rezendes’s computer uncovered text files containing credit card

data pertaining to 137 accounts. Mr. Rezendes also possessed images and schematics of

gas station credit card readers and a device designed to capture credit card information at

gas pumps. And authorities discovered images of federal and state identification

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documents, a tutorial on how to create false identification documents, and an

identification card printer during the search.

Mr. Rezendes ultimately pled guilty to one count of intentionally damaging

protected computer equipment in violation of 18 U.S.C. § 1030(a)(5)(A), (c)(4)(B) and

one count of possessing unauthorized access devices in violation of 18 U.S.C.

§ 1029(a)(3), (c)(1)(A)(i). He was sentenced to eighteen months’ imprisonment, to be

followed by three years’ supervised release. The court imposed both standard and special

conditions on Mr. Rezendes’s supervised release. Relevant to this appeal, standard

condition 13 (Condition 13) required Mr. Rezendes to “notify third parties of risks that

may be occasioned by [his] criminal record or personal history or characteristics” and

also authorized the parole officer to make such notifications.

Upon beginning his term of supervised release in February 2014, Mr. Rezendes

moved to modify and clarify several of the conditions imposed by the district court,

including Condition 13. In particular, Mr. Rezendes objected to his probation officer’s

interpretation of Condition 13 as requiring Mr. Rezendes to notify prospective employers

of the nature of his conviction. Mr. Rezendes asked the court to clarify that it had not

intended Condition 13 to require employer notification. As support for his interpretation

of Condition 13, Mr. Rezendes noted that the district court had not entered the express

findings that would have been required if it had intended to impose an occupational

restriction.

In response, the Government argued employer notification was necessary and

proposed that Condition 13 be modified accordingly. But the Government agreed with

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Mr. Rezendes that a condition of employer notification is an occupational restriction that

must be supported by particularized findings as described in section 5F1.5 of the U.S.

Sentencing Guidelines (Guidelines). It therefore asked the court to make the required

findings and to modify Condition 13 to state expressly that Mr. Rezendes must “notify

3rd parties (including employers) of risks involving computers and credit card

information that may be occasioned by the defendant’s criminal record.”

At the modification hearing, the district court agreed to modify the condition, but

declined to adopt the Government’s proposed language. The court concluded the term

“3rd parties” in the Government’s proposal made little sense when the condition was

aimed at employers. It also determined the term “risks” as used in the Government’s

proposal was too vague. Accordingly, the court modified Condition 13 to read:

[F]or two years after this date, the defendant shall notify employers of his
conviction and the nature of his conviction involving computers and credit
card information that may be occasioned by the defendant’s criminal record
or personal history or characteristics and shall permit the probation officer
to make such notifications and to confirm the defendant’s compliance with
such notification requirement.

Mr. Rezendes now appeals modified Condition 13, arguing the district court’s

findings at the modification hearing do not satisfy the requirements of U.S.S.G. § 5F1.5.

II. DISCUSSION

If a defendant objects to a condition of supervised release at the time it is imposed,

we review for abuse of discretion. United States v. Mike, 632 F.3d 686, 691 (10th Cir.

2011). But if the defendant fails to object, we review only for plain error. Id. In this case,

Mr. Rezendes raised no objection to the district court’s findings during the modification

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hearing, and we would normally review for plain error. However, the Government argues

Mr. Rezendes waived any objection to modified Condition 13 by remaining silent during

the modification hearing. Mr. Rezendes admits he did not object to the findings

supporting modified Condition 13, but contends he merely forfeited his right to object in

the trial court. Because the resolution of this issue impacts the scope of our review, we

pause to consider whether Mr. Rezendes waived or forfeited his challenge to the district

court’s findings.

A. Whether Mr. Rezendes Waived or Forfeited His Objection to the
Adequacy of the Findings in Support of Modified Condition 13

“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the

timely assertion of a right, waiver is the intentional relinquishment or abandonment of a

known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks

omitted). “In other words, waiver is accomplished by intent, but forfeiture comes about

through neglect.” United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.

2007) (brackets and internal quotation marks omitted). Because forfeiture lacks the

element of intentionality, we have held that “a party that has forfeited a right by failing to

make a proper objection may obtain relief for plain error; but a party that has waived a

right is not entitled to appellate relief.” United States v. Teague, 443 F.3d 1310, 1314

(10th Cir. 2006).

Thus, the issue before us is whether, as the Government argues, Mr. Rezendes

intentionally abandoned his objection to the sufficiency of the district court’s findings,

thereby waiving his claim. We agree with Mr. Rezendes that his failure to object to the

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district court’s findings amounts only to forfeiture, and we may therefore review his

claim for plain error.

At the modification hearing, the district court clarified that Condition 13 did

require employer notification and attempted to address the § 5F1.5 factors. After the

district court announced its findings, it asked the Government “are those findings

sufficient for your purpose?” The Government affirmed they were, and the court asked

defense counsel if there was anything further he wanted to add. Counsel replied, “No,

Your Honor, there is not. Thank you.”

The Government argues this exchange between defense counsel and the court

constituted a deliberate waiver of any challenge to the district court’s factual findings

supporting the § 5F1.5 factors. But the issue before the district court was first whether

Condition 13 was intended as an employment restriction in the first instance, and second

if it was, for the court to make factual findings to support an employer notification

requirement under § 5F1.5 of the Guidelines. The court proceeded to clarify that

Condition 13 required employer notification and to make a series of factual findings in

support of that employment restriction. There is no indication defense counsel was aware

of a problem with the sufficiency of those findings and then intentionally waived

objection to that deficiency.

We have repeatedly held an argument is not waived merely because counsel

focused on a closely related issue. For example, in United States v. Zubia-Torres, the

court asked defense counsel whether she had anything to argue on the calculation of the

defendant’s offense level or criminal history score under the Guidelines. 550 F.3d 1202,

6
1204 (10th Cir. 2008). Counsel responded, “Your Honor, the offense was correctly

calculated by Probation. Our issue is whether or not it’s a Booker issue.” Id. (internal

quotation marks omitted). The prosecution argued this exchange was a deliberate waiver

of any argument relating to the calculation of the defendant’s offense level. Id. at 1205.

This court disagreed, holding counsel merely failed to recognize the potential problem

with the offense calculation. Id. Thus, we have rejected the notion that counsel can waive

an argument it is unaware exists merely because a closely related issue is raised and

argued.1

Accordingly, defense counsel’s failure to object to the sufficiency of the district

court’s findings constituted a forfeiture and is reviewable on appeal for plain error. We

now consider whether the district court plainly erred by imposing modified Condition 13

without making adequate findings of fact.

1
The cases relied on by the Government do not persuade us otherwise. In both
United States v. Acosta-Colón, 741 F.3d 179 (1st Cir. 2013), and United States v.
Christi, 682 F.3d 138 (1st Cir. 2012), the issue the defendant later raised on appeal—
closing the proceedings to the public—had been squarely presented to defense
counsel in the district court, but defense counsel failed to raise an objection. See
Acosta-Colón, 741 F.3d at 187 (holding defense counsel waived objection where he
remained silent despite the district court’s specific inquiry during a side bar
conference whether there were any concerns about closing the courtroom to the
public); Christi, 682 F.3d at 142 (1st Cir. 2012) (same where defense counsel
remained silent despite the district court’s specific inquiry about closing the
courtroom during portions of the jury instructions, and continued her silence when
the prosecutor later raised concerns about closing the courtroom with the district
court). Here, the issue Mr. Rezendes raises on appeal—the sufficiency of the district
court’s factual findings—was never raised by defense counsel or in his presence.

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 B. Whether the District Court Plainly Erred in Its § 5F1.5 Findings

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the

defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Mendoza-Lopez, 669 F.3d

1148, 1151 (10th Cir. 2012). As explained below, even assuming the district court erred,

any such presumed error was not plain. As such, we affirm the imposition of modified

Condition 13.

District courts have broad discretion to impose conditions of supervised release,

but this discretion must be exercised in accordance with 18 U.S.C. §§ 3583(d) and

3563(b), as well as applicable provisions of the Guidelines. United States v. Wittig, 528

F.3d 1280, 1286–87 (10th Cir. 2008). Section 3583(d) authorizes the court to impose

“any condition set forth as a discretionary condition of probation in section 3563(b).”2 In

turn, § 3563(d)(5) allows the court to order that the defendant “refrain . . . from engaging

in a specified occupation, business, or profession bearing a reasonably direct relationship

to the conduct constituting the offense, or engage in such a specified occupation,

business, or profession only to a stated degree or under stated circumstances.” Section

5F1.5 of the Guidelines implements these statutory provisions. See Wittig, 528 F.3d at

1287.

2
Section 3583(d) also requires that any condition imposed be “reasonably
related to the factors set forth in” 18 U.S.C. § 3553(a), involve “no greater
deprivation of liberty than is reasonably necessary for the purposes set forth in” that
section, and be “consistent with any pertinent policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3583(d)(1)–(3).
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 Section 5F1.5 permits the imposition of occupational restrictions only if the

district court determines that:

(1) a reasonably direct relationship existed between the defendant’s
occupation, business, or profession and the conduct relevant to the
offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect the
public because there is reason to believe that, absent such restriction, the
defendant will continue to engage in unlawful conduct similar to that for
which the defendant was convicted.

U.S.S.G. § 5F1.5(a). Section 5F1.5 further requires that “the court shall impose the

[occupational restriction] for the minimum time and to the minimum extent necessary to

protect the public.” Id. § 5F1.5(b). “Thus, an occupational restriction, such as an

employer notification requirement, may only be imposed if the district court finds that all

three of these criteria are met.” United States v. Souser, 405 F.3d 1162, 1166 (10th Cir.

2005).

In response to the Government’s request at the modification hearing for specific

findings related to the § 5F1.5 factors, the district court stated, with our emphasis,

What the facts in this case demonstrate to this Court, of particular relevance
now, are two things: first, that Mr. Rezendes is a very skilled and
resourceful computer literate, technical type person who can do things with
and through computers that the average person cannot do. He’s perfectly
capable of hacking into a computer or computer system and has
demonstrated that he can do that.

And secondly, the case demonstrated that he was ready, willing, and able to
use that skill to accomplish harm to a third party, in that case Larimer
County.

The responsibility of the Court extends to the protection of the community,
and that would include employers. The fact that Mr. Rezendes has not used
his skills nefariously vis-à-vis an employer does not give me confidence
that he cannot or will not do that if, for example, the employer rubs him the

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 wrong way. I hope that that is not his intent, but it is a concern that the
probation office had, it is a concern that the Court had and has, and a
concern that the Court feels a responsibility to act upon.

Mr. Rezendes argues that these findings are plainly inadequate under § 5F1.5. We

are not convinced. We recently clarified that it is plain error when a district court fails to

make any findings under § 5F1.5. See United States v. Dunn, 777 F.3d 1171, 1178–79

(10th Cir. 2015) (“Our precedents unambiguously require supporting findings when

courts impose special conditions of supervised release.” (internal quotation marks

omitted)). But this is not a case in which the district court completely failed to make

findings. Rather, the issue here is whether the findings the district court did make were

adequate. And because Mr. Rezendes challenges the district court’s findings supporting

modified Condition 13 only for failure to comply with U.S.S.G. § 5F1.5(a)(2), our

inquiry is limited to whether those finding are plainly insufficient to constitute a finding

that “imposition of such a restriction is reasonably necessary to protect the public because

there is reason to believe that, absent such restriction, the defendant will continue to

engage in unlawful conduct similar to that for which the defendant was convicted.”

U.S.S.G. § 5F1.5(a)(2); see also Souser, 405 F.3d at 1165 (“Because an employer

notification requirement limits the terms on which a defendant may engage in the

specified occupation, it must be treated as an occupational restriction.”).

Mr. Rezendes argues the findings do not indicate the district court had a reason to

believe he would re-offend, absent the restriction; instead, they merely reflect the court’s

concern he might re-offend. According to Mr. Rezendes, this is insufficient to meet the

requirements of § 5F1.5. Even if we assume—without deciding—that the district court’s

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findings are insufficient to support imposition of an employment restriction under

§ 5F1.5(a)(2), Mr. Rezendes has not established that such error was plain under our

precedents.

“A[n] error is plain when it is clear or obvious under current law.” United States v.

Woods, 764 F.3d 1242, 1245 (10th Cir. 2014) (internal quotation marks omitted). Section

5F1.5 requires only that the district court have a “reason to believe” a defendant “will”

re-offend and that the occupational restriction is therefore reasonably necessary. Mr.

Rezendes focuses on the “will” re-offend language and all but ignores the “reason to

believe” qualifier. But he identifies no precedent holding § 5F1.5 requires the level of

certainty he seeks to impose. We have likewise never required district courts to use any

particular language when imposing employment restrictions under § 5F1.5, so long as it

is clear the district court made the requisite findings.

Here, the modification hearing transcript does not support Mr. Rezendes’s claim

that any presumed deficiency in the findings was plain. The court first invoked its

responsibility to protect the public, including employers, and then indicated it did not

have confidence Mr. Rezendes would refrain from a cyber attack on his employer if

angered. The court went on to state that this risk of another cyber attack “is a concern that

the Court had and has, and a concern that the Court feels a responsibility to act upon.”

Specifically, the district court stated, “The fact that Mr. Rezendes has not used his skills

nefariously vis-à-vis an employer does not give me confidence that he cannot or will not

do that if, for example, the employer rubs him the wrong way.” Although the district

court could have stated its finding more clearly, they can be reasonably interpreted to

11
express a belief that if angered, Mr. Rezendes will reoffend. And Mr. Rezendes has

pointed us to nothing in our precedent which should have made it obvious to the district

court that its findings were plainly erroneous.

To support his position, Mr. Rezendes relies primarily on United States v. Wittig,

528 F.3d 1280 (10th Cir. 2008). In Wittig, the district court prohibited the defendant from

being employed as an executive or engaging in financial agreements in a professional

capacity without first obtaining permission from the court. 528 F.3d at 1286. To support

the restriction, the court stated only

The conditions of supervision are directly connected to the underlying
offenses for which defendant Wittig was convicted. Defendant Wittig was
convicted of fraud and conspiracy to commit fraud that involved financial
transactions. Specifically, he was found guilty in a scheme that involved
false and misleading statements made on financial documents. If defendant
Wittig were to have executive authority, or conduct financial transactions
on behalf of a business entity, he would be responsible for a multitude of
financial documents. As a result, the conditions are reasonably related to
the nature and circumstances of the offense and the history and
characteristics of this defendant.

Id. at 1288 (brackets omitted). Because the defendant’s offense was committed in his

personal—and not his professional—capacity, we held the district court had not

adequately explained why it thought the defendant would re-offend absent an

occupational restriction. Id. And the district court in Wittig never made any finding about

the defendant’s propensity to re-offend. It noted that engaging in certain types of

employment would make the defendant responsible for a multitude of financial

documents, but made no finding at all on how it reasonably believed the defendant would

behave if given that responsibility.

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 In this case, the court acknowledged that Mr. Rezendes’s offense was not against

an employer. But the court went on to explain that, because Mr. Rezendes committed his

crime in retaliation for treatment he perceived to be unfair, the court was concerned Mr.

Rezendes would commit similar acts against an employer if he perceived that the

employer had treated him unfairly. The court observed that its duty to protect the public,

including employers, justified the requirement that Mr. Rezendes notify future employers

of the nature of his conviction. Unlike the court in Wittig, the district court here did make

a finding on the risk of re-offending. Rather than expressing its concern as a “reasonable

belief that [Mr. Rezendes] will reoffend,” the district court found that it was not

convinced that Mr. Rezendes “cannot or will not” use his computer skills nefariously

against an employer. The differences between the language of § 5F1.1 and the district

court’s findings is not so clear as to constitute plain error. Thus, this case is sufficiently

distinguishable from Wittig where the district never made a finding concerning the risk to

the defendant’s future employers. Accordingly, the district court did not plainly err in

imposing the occupational restriction at issue.

III. CONCLUSION

For the reasons discussed, we AFFIRM the district court.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

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