United States Court of Appeals
For the First Circuit
No. 16-2263
UNITED STATES OF AMERICA,
Appellee,
v.
JAREL MICHAEL LAWSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Boudin and Barron, Circuit Judges.
Michael C. Bourbeau on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, on brief for appellee.
June 4, 2018
BOUDIN, Circuit Judge. Jarel Michael Lawson appeals
from a judgment whose sentence includes a fifteen-year term of
supervised release. Prior to sentencing Lawson pled guilty to a
violation of the Sex Offender Registration and Notification Act
("SORNA"), 18 U.S.C. § 2250(a). The background events are as
follows.
In October of 2009, Lawson pled guilty to third degree
child rape in Mason County Superior Court, Shelton, Washington.
Lawson was sentenced to thirty months of incarceration, with credit
for time served, followed by thirty-six months of community
custody. Lawson completed the prison sentence in September 2011,
and as required by his community custody conditions, registered as
a sex offender. He stopped reporting to his registering officer
in September 2013, and local authorities issued a warrant for his
arrest in March 2014.
Thereafter, sometime before early 2015, Lawson moved to
Puerto Rico and did not comply with SORNA's requirement that he
register when he "travels in interstate . . . commerce." 18 U.S.C.
§ 2250(a)(2)(B). He was arrested in June 2015 and in November
pled guilty to having violated SORNA. The district court
ultimately imposed a twenty-four-month sentence and a fifteen-year
term of supervised release. On appeal, Lawson challenges his
supervised release term.
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A federal statute requires for Lawson a supervised
release "term of years not less than 5, or life." 18 U.S.C.
§ 3583(k). The Sentencing Guidelines provide a recommended term
of supervised release of five years for the SORNA violation.
U.S.S.G. § 5D1.2(c). Lawson's main attack on the fifteen-year
term the judge imposed has two branches: He argues that the court
failed to explain its reasons for the lengthy term and, further,
that the term is unreasonably long. Having failed to raise these
objections at the time of the sentence, Lawson has to show plain
error, meaning he must show: "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015)
(alteration in original) (quoting United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001)).
"Where an explanation for a sentence is lacking, 'a
court's reasoning can often be inferred by comparing what was
argued by the parties or contained in the [PSI] report with what
the judge did.'" Id. at 227 (alteration in original) (quoting
United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
(en banc)). In his sentencing memorandum, Lawson wrote that he
expected that "a supervised release term of at least five years
will be imposed," and he also lauded "conditions of supervised
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release that include mental health evaluations and treatment under
the penalty of revocation and further incarceration" as "a blessing
in disguise since [he] may finally receive the help he
needs . . . ."
For its part, the government expressly requested a
fifteen-year term, citing Lawson's lengthy criminal history
(noting that at age thirty-two, Lawson had a Criminal History
Category of VI) and repeated violations of conditions of supervised
release. Lawson had been convicted of child rape of a fifteen-
year-old girl, which was procured in part by a deception as to his
age that could easily be repeated. In October 2006, Lawson, then
twenty-two, had sexual relations with and made pregnant the
fifteen-year-old girl. Lawson had assured her and her mother that
he was only seventeen. Lawson has also been convicted several
times of violent assault.
Finally, by absconding from community custody in
Washington state and failing to register under SORNA upon arriving
in Puerto Rico, Lawson has shown a regular and repeated
indifference to legal constraints. Absent continued close
supervision over an extended period there is a good chance that he
will continue to offend. The idea that Lawson did not know why he
was given a long term of supervised release is silly.
As for the "substantive reasonableness" of the term, the
phrase is used in no technical or esoteric sense but calls only
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for a sentence that "rests on a 'plausible sentencing rationale'
and embodies a 'defensible result.'" Ruiz-Huertas, 792 F.3d at
228 (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008)). Lawson's criminal history and inability to learn from his
mistakes made a long term almost a necessity. The government
sought fifteen years; Lawson did not request a particular term of
supervised release. The rationale for adopting the government's
suggestion was obvious and the result easily defended.
Lawson's final claim appears at the end of his brief so
hesitantly presented that it could easily have been overlooked.
Lawson says that the supervised release term may be infected by
the same error--indeed, plain error--that led this court to
overturn a supervised release term in United States v. Medina, 779
F.3d 55 (1st Cir. 2015). There, the Medina court remanded for
further proceedings because the district court had believed that
section 2250(a) constituted a "sex offense" for which the
guidelines recommended a supervised release term of five years to
life; if failure to report were not a sex offense, the recommended
term is only the statutory minimum of five years. Id. at 59-60.
In our own case, the district court stated that the
guideline range for Lawson's term of supervised release was "not
less than five . . . years to life." The court did not say whether
or not it regarded Lawson's violation as a sex offense, so no one
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on appeal can be sure whether the district judge took one view,
the opposite, or never focused on the question at all.
Nevertheless, Lawson has invoked Medina and Medina does
hold that the recommended term under the guidelines is a five-year
term of supervised release and not more. Under Medina,
misclassification of the SORNA offense as a sex offense, which
correlates with a higher recommended supervised release term,
constitutes plain error where a term longer than five years is
imposed. Id.
The guideline is merely a recommendation and the judge
is free to "vary" upward or downward, but a variance--unlike
reasonableness--has a technical meaning and technical
requirements. In general, the judge is expected to explain why
the defendant or the circumstances of the offense differ
significantly from the typical or average at which the guideline
is aimed; unless that finding is made or is so obvious as not to
need articulation, a variance is not permitted. See United States
v. Del Valle-Rodriguez, 761 F.3d 171, 176 (1st Cir. 2014). Perhaps
this finding could be made and supported here, but it has not yet
been done and a remand is therefore required.
Reasonableness is not a substitute for such a
specialized determination. A sentence could in principle satisfy
the reasonableness test but not justify a variance; it could
justify a variance in the atypical case but still be unreasonably
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long or short. The constraints have different objectives and must
be independently satisfied although some of the same facts may
feed into both evaluations. The next step is up to the district
judge.
Accordingly, we vacate the present supervised release
term and remand for the district court to decide what term to
impose and, if over five years, to explain the upward variance.
It is so ordered.
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