United States Court of Appeals
For the First Circuit
No. 12-1593
UNITED STATES,
Appellee,
v.
JOSÉ FELIPE MORALES-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Héctor L. Ramos-Vega, Assistant Federal Public Defender, with
whom Héctor E. Guzmán, Jr., Federal Public Defender, and Patricia
A. Garrity, Assistant Federal Public Defender, were on brief, for
appellant.
Dina Ávila-Jiménez, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.
April 5, 2013
LYNCH, Chief Judge. This case concerns whether a
district court abused its discretion when, in sentencing José
Felipe Morales-Cruz, it imposed a particular condition of
supervised release: that "[t]he defendant shall participate in a
sex offender treatment[] and[/]or mental health treatment program
arranged by the probation officer." Morales-Cruz, who had a 1994
conviction for criminal sexual assault, had failed to register as
required under the Sex Offender Registration and Notification Act
("SORNA"), 18 U.S.C. § 2250(a), when he moved to Puerto Rico in
2010, and he was indicted for that failure. He had also failed to
register as required by law in 2009 when he lived in Florida. And
he was convicted in 2002 for failure to register as a sex offender
when he lived in New Jersey. In addition to Morales-Cruz's sex
offense and his two prior failures to register as a sex offender,
he had an extensive criminal record. Further, he had a 2010
conviction for battery on the woman he lived with, a battery which
ended only when a security officer intervened.
Morales-Cruz pled guilty to the federal charge of failure
to register in this case. The court sentenced him to 48 months of
imprisonment, with a ten-year term of supervised release, subject
to a number of conditions. These included non-standard conditions
tailored particularly to Morales-Cruz. On the recommendation of
the Probation Department in the presentence investigation report
("PSR"), one condition imposed was that Morales-Cruz would have to
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participate in sex offender treatment and/or mental health
treatment programs arranged by the probation office. He appeals.
I.
Morales-Cruz does not appeal from his 48-month sentence
and agrees that he is in need of at least mental health treatment.
Nor does he take any issue with the delegation to the probation
officer to choose which type of treatment program he should receive
after his imprisonment. His sole objection is to the possibility
that the probation officer may deem a sex offender treatment
program to be appropriate. His primary argument is that his one
conviction for a sex offense was in 1994, some 16 years before his
present offense, that date is too long ago to justify the present
condition, and nothing else about his history of other offenses,
including his multiple failures to comply with SORNA, provided a
permissible justification for the condition. As a result, he says
the condition is not reasonably related to the nature of the
offense or his history or characteristics. We disagree.
II.
Our review of the conditions of supervised release is for
abuse of discretion. United States v. Sebastian, 612 F.3d 47, 50
n.2 (1st Cir. 2010). We take the undisputed facts from the record.
Morales-Cruz's PSR included specific facts concerning the
defendant's characteristics. At the time of sentencing, Morales-
Cruz was 58 years old, had a seventh-grade education, and was
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single and without dependents, though he had two adult daughters.
His employment was in jobs such as a butcher, a carpenter, an
assistant mechanic, and in maintenance. He had never paid any
income tax. Morales-Cruz admitted to using cocaine and heroin
daily since he was twenty years old and had last used these
substances the day before his arrest for the present offense. He
had never participated in any drug treatment program.
Morales-Cruz had ten prior convictions, several of which
we highlight. At age 41, he pled guilty in New Jersey to attempted
criminal sexual assault on an adult female victim. The crime is
described in the record:
[O]n September 24, 1994 in Passaic NJ, the defendant
assaulted [the victim], and tried to force her to have
sexual intercourse. The defendant fought with the
victim, and she sustained a bruise on her right cheek and
ear, a cut on her right hand, and both knees were
bruised. The defendant left the apartment on foot. An
attempt to arrest the defendant at his residence was
made, to no avail.
Morales-Cruz was arrested four days later and sentenced to 4 years
of imprisonment.
Morales-Cruz's record shows a pattern of failure to
comply with court orders and conditions of probation imposed for
his crimes. At ages 44 and 45, Morales-Cruz was found in contempt
of court by two separate courts in New Jersey, arising out of state
offenses. At age 48, in 2002, Morales-Cruz was convicted in New
Jersey of failure to register as a sex offender and was originally
put on 18 months of probation. Within six months, his probation
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was revoked and he was sentenced to 15 months of imprisonment. At
age 50, he was convicted of theft and placed on probation;
probation was then revoked and he was sentenced to three years of
imprisonment. There were also drug crimes and a bench warrant
outstanding for him.
Significantly, in 2010, after he had moved to Florida, he
did not contest the battery charges he faced for assaulting an
adult female victim. The record states:
On September 4, 2009 . . . [a] security guard for the
apartment complex and [sic] while he was on patrol he
could hear yelling and screaming in the area of apartment
7-5. When he approached the apartment, the door was open
and he noticed the defendant, Jose F. Morales, grabbing
the victim . . . by the hair and tossing her around the
room. Tavarez then saw Morales strike her in the head
area with an open hand. Tavarez pulled his taser and
ordered Morales to the ground. Morales complied and went
to the ground. Tavarez radioed to his supervisor who
called 911. She further stated that the defendant
arrived home intoxicated and began to argue with her.
Morales then grabbed her hair and hit her in the head.
[The victim] never gave Morales permission to hit her or
pull her hair. Morales and [the victim] had been living
together as a couple for a period of two years.
Morales-Cruz was sentenced to a jail term and 320 days of
probation. He violated the terms of probation and had an active
Florida warrant at the time of his arrest in Puerto Rico.
At the April 2012 sentencing hearing, the court correctly
stated the legal requirements for imposing sentencing and
supervised release. Morales-Cruz does not suggest otherwise, and
there is no claim of procedural error. The court assessed Morales-
Cruz's particular history, characteristics, and conduct, and stated
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it found the sentence and conditions appropriate because of a need
to protect the community and for deterrence, avoiding recidivism,
and to promote defendant's rehabilitation:
The Court in making an assessment to impose a sentence
takes into account other factors in 18 U.S.C. 3553(a) and
understands that the nature and the circumstances of the
offense of Defendant reflects that he has a lack of
respect for other individuals. He has prior records that
include criminal sexual assault, failure to register, and
battery, among others. It reflects that as an individual
he has a lack of control, and there is a need to protect
the community from this individual.
The court then concluded:
The Court must promote that Mr. Morales make insight of
his wrongdoings and that he be afforded adequate -- and
that adequate deterrence to the criminal -- his criminal
conduct be afforded. The Court must protect the
community from individuals like Mr. Morales who openly
disrespect the law by engaging in continuous criminal
conduct and fail to abide by their supervision
convictions, as failing to register as reflected in the
presentence investigation report.
III.
In United States v. York, 357 F.3d 14 (1st Cir. 2004),
this court set forth the legal criteria for imposition of
supervised release conditions, as well as for appellate review of
those conditions. We stressed that "the facts of [a defendant's]
underlying offense and criminal history are pertinent to the
district court's choice of supervised release conditions":
This is so by statute. Under 18 U.S.C. § 3583(d), the
district court may impose any special condition of
supervised release that it considers "appropriate,"
provided that the condition satisfies certain specified
criteria. One such criterion is that the condition
imposed be "reasonably related to the factors set forth
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in section 3553(a)(1)." Id. § 3583(d)(1). Section
3553(a)(1), in turn, requires the court to consider "the
nature and circumstances of the offense and the history
and characteristics of the defendant." See also U.S.S.G.
§ 5D1.3(b).
Id. at 17.
In York, we noted that there were limitations on the
district court's power to fashion conditions of supervised release.
Id. at 20. The critical test is whether the condition is
reasonably related to one or more of the goals of supervised
release. Id. The district court here specifically made that link.
It stated that Morales-Cruz had a lack of control, did not respect
others, needed to be deterred, and that the community needed
protecting from him.
Morales-Cruz argues that failure to register is not a sex
offense, though he acknowledges that sex offender treatment may be
imposed in a case in which the underlying crime is not a sex
offense. See id. at 19-20. Contrary to Morales-Cruz's main
argument, the court appropriately considered his failure to
register under SORNA in three jurisdictions, and "[t]he condition
that he attend sex-offender treatment is plainly related to his
criminal history," id. at 21, as well as to his present offense.
SORNA requires sex offenders to "register, and keep the
registration current, in each jurisdiction where the offender
resides," 42 U.S.C. § 16913(a), by providing certain "information
to the appropriate official for inclusion in the sex offender
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registry," id. § 16914(a), and by appearing in person at prescribed
intervals to "allow the jurisdiction to take a current photograph,
and verify the information in each registry in which that offender
is required to be registered," id. § 16916. Sex offenders must
keep registration current for periods that vary based on the
character of the underlying sex offense, and that may be reduced if
the offender maintains a clean record. Id. § 16915. Jurisdictions
are required to make available on the Internet all information
about each sex offender in the registry. Id. § 16918.
SORNA registration serves a purpose: to protect the
community from the risks posed by convicted sex offenders by
requiring registration and then by providing notification. See 42
U.S.C. § 16901; United States v. Parks, 698 F.3d 1, 5 (1st Cir.
2012); see also Smith v. Doe, 538 U.S. 84, 99 (2003) (noting, with
respect to analogous requirements under Alaska law, that "[t]he
purpose and the principal effect of notification are to inform the
public for its own safety"). Registration requirements such as
those SORNA imposes are justified by the high recidivism rate for
offenders. Id. at 105 ("[R]ecidivism is the statutory concern").
Yet Morales-Cruz made a conscious choice to defeat those
purposes in three different jurisdictions. And he did so in two
jurisdictions after he had already served time in prison for
failing to register in New Jersey, and knew there would be a
penalty for failure to register. These continuing failures
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certainly permit a rational inference that Morales-Cruz presented
a recidivism risk and warranted deterrent punishment. His conduct
undermined the efforts made by Congress in SORNA, and by the states
in their statutes, to combat the risks of recidivism.
In McKune v. Lile, 536 U.S. 24, 33 (2002), the Supreme
Court noted that sexual offender treatment programs while in prison
serve legitimate penological objectives of rehabilitation. It
stressed the widespread agreement that such programs "can enable
[defendants] to manage their impulses and in this way reduce
recidivism." Id. Given Morales-Cruz's manifest lack of respect
for the SORNA registration requirements, and the reasonable
inference that his refusal to comply with these requirements poses
a risk of recidivism, the district court's imposition of sex-
offender treatment was reasonably related to Morales-Cruz's present
offense as well as to his criminal history, which included a recent
assault on an adult female. There was no abuse of discretion.
To support his argument to the contrary, Morales-Cruz
cites six cases in which courts of appeals reversed conditions of
supervision. All are distinguishable. For example, none of the
cases Morales-Cruz cites involve a defendant with a recent
conviction for violence against a female victim. In four of these
cases, the challenged conditions bore no relationship to the
offense of conviction and the defendant's recent criminal history
provided no basis for the conditions. See United States v. Sharp,
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469 F. App'x 523 (9th Cir. 2012) (sex-offender conditions reversed
where defendant convicted of being a felon in possession of a
firearm, no suggestion of prior sex offender registration
convictions, and district court failed to provide justification for
challenged conditions); United States v. Carter, 463 F.3d 526 (6th
Cir. 2006) (sex-offender conditions reversed where defendant
convicted of being a felon in possession of a firearm, prior sex
offense was 17 years old, and no suggestion of prior sex offender
registration convictions); United States v. Scott, 270 F.3d 632
(8th Cir. 2001) (sex-offender conditions reversed where defendant
convicted of armed bank robbery and no suggestion of prior sex
offender registration convictions); United States v. Kent, 209 F.3d
1073 (8th Cir. 2000) (mental health conditions reversed where
defendant convicted of mail fraud). In a fifth case, the
challenged sex-offender conditions bore no relationship to the
offense of conviction -- robbery of a post office -- the prior sex
offense was 17 years old, and there was no recent incident of
personal violence against women. See United States v. Dougan, 684
F.3d 1030 (10th Cir. 2012). The court stated that the defendant's
"failures to register as a sex offender make this a much closer
question." Id. at 1037. In the sixth case, the prior sex offense
was over twenty years old, and though the offense of conviction was
failing to register under SORNA, there was no suggestion that the
defendant had chronically failed to comply with sex-offender
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registration requirements, as here. See United States v. Rogers,
468 F. App'x 359, 362–64 (4th Cir. 2012) (per curiam).
IV.
The judgment of the district court is affirmed.
-Dissenting Opinion Follows-
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TORRUELLA, Circuit Judge (Dissenting). Because I find
that the district court's imposition of the special condition of
supervised release -- participation in a sex offender treatment
program with accompanying requirements -- is not "reasonably
related to the factors set forth in section 3553(a)(1)," namely,
the "nature and circumstances of the offense and the history and
characteristics of the defendant," I am forced to dissent. 18
U.S.C. §§ 3553(a)(1), 3583(d)(1); see also U.S.S.G. § 5D1.3(b).
Nor do I find that the challenged condition is "sufficiently
related to one or more of the permissible goals of supervisory
release," United States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000),
which include: (1) the need to deter the defendant from further
criminal conduct; (2) the need to protect the public from further
crimes by the defendant; and (3) the effective educational,
vocational, medical, or other correctional treatment of the
defendant. U.S.S.G. § 5D1.3(b)(1); see also 18 U.S.C.
§ 3583(d)(1).
First, the imposed special condition is not tailored to
the nature and circumstances of the offense or to Morales-Cruz's
criminal history and characteristics as required under U.S.S.G.
§ 5D1.3(b)(2). The Government offered no evidence regarding
Morales-Cruz's "characteristics" that touch on either past sexual
behavior or misconduct, so my review will focus on whether the
special condition was reasonably related to his criminal history.
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While Morales-Cruz has prior convictions, his conviction for
attempted sexual assault on an adult female victim occurred
approximately eighteen years before the instant SORNA conviction
and is too remote in time to be reasonably related to the
imposition of the special condition here. There is ample precedent
from sister circuits rejecting the imposition of special conditions
where the sex offense conviction is temporally remote. See United
States v. Dougan, 684 F.3d 1030, 1036 (10th Cir. 2012) (imposition
of special condition of sex offender treatment vacated where most
recent sexual offense occurred sixteen years prior to the convicted
crime); United States v. Rogers, 468 F. App'x. 359, 363 (4th Cir.
2012) (vacating imposition of sex offender treatment special
condition where criminal sexual assault conviction in over twenty
years old and there was no evidence before the district court that
such an act of violence characterized defendant's offense behaviors
in the years since he was released from incarceration); United
States v. Sharp, 469 F. App'x. 523, 525 (9th Cir. 2012) (special
sex offender treatment conditions vacated where defendant's sex
offense was more than a decade old at the time of sentencing,
"making it too remote to justify the conditions by itself"); United
States v. Carter, 463 F.3d 526, 531 (6th Cir. 2006) (seventeen-
year-old conviction for a sex offense "too remote in time to
justify the imposition of a sex-offender-treatment condition in
2005); United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001)
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(sex offender special condition reversed where fifteen-year-old
conviction for forcible rape and sodomy of defendant's nine-year-
old stepdaughter was too remote); United States v. Kent, 209 F.3d
1073, 1077 (8th Cir. 2000) (abuse against wife thirteen years prior
to mail fraud conviction too remote for imposition of special
condition of supervisory release of mental health treatment).
While it may be permissible to impose special sex-
offender-related conditions where the convicted crime is not a sex
crime, I agree with the Tenth Circuit that "such cases . . . would
require a stronger nexus . . . between defendant's history and
characteristics and the sex-offender-related conditions before
. . . conclud[ing] that the latter were 'reasonably related' to the
former." Dougan, 684 F.3d at 1036. The nexus in this case is not
strong enough. Morales-Cruz has committed no sexual offense-based
crimes since his 1994 conviction; he is not a recidivist sex
offender. See United States v. York, 357 F.3d 14, 20 n.5 (1st Cir.
2004) (distinguishing the imposition of the sex offender special
condition to defendant York, "a recidivist sex offender," from the
reversal of such imposition in Scott, where "the only evidence of
sexual misconduct by the defendant was a single conviction over
fifteen years old [and t]he court concluded that that sex-offender
treatment was unnecessary because the defendant's sex-related
misconduct had ceased.").
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The instant and 2002 SORNA failure-to-register
convictions, while troubling, are not in themselves sufficient to
establish a reasonable relation to the imposition of a special
condition of a sex offender treatment program. The SORNA offenses
on their face do not constitute sexual offenses nor are they
defined as such by the Guidelines for purposes of supervised
release. See U.S.S.G. § 5D1.2 cmt. n.1 (2003) ("Sex offense" means
"an offense, perpetrated against a minor," including, inter alia,
domestic assault by a habitual offender, kidnaping, sex
trafficking, or conspiracy to commit those crimes). Further, the
record provides no indication that Morales-Cruz's failure to
register coincided with or made more likely a return to his
commission of sexual offenses. "Even with a failure to register,
no appellate court has upheld the imposition of special sex-
offender conditions of release when based upon an underlying
offense that is seventeen years old," Dougan, 684 F.3d at 1037,
until the majority in this case. The reasoning of the majority --
that continuing failures to register permit "a rational inference
that Morales-Cruz presented a recidivism risk and warranted
deterrent punishment" -- is unwarranted and inappropriate
speculation lacking support in the record. It confuses a possible
rational inference of recidivism and deterrence concerns as to
criminal conduct generally with the entirely unfounded speculation
that Morales-Cruz presented recidivism risks and needed deterrence
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from committing further sexual offenses. In fact, there is no
record support for Morales-Cruz's recidivism of sexual offenses.1
Further, the majority's reasoning is ripe for double-counting,
rationalizing a district court's discretion to impose a special
condition outside the Sentencing Guidelines to increase a sentence
due to a harm that has already been fully accounted for and based
on temporally distant sex-offense and failure-to-register
convictions that the defendant has already served sentences for.
Nor does the record show that the special condition was
reasonably necessary to achieve the goals of supervisory release.
Those goals, as summarily listed by the district court at its
sentencing hearing, include: (1) the need to protect the community;
(2) promoting defendant's "insight of his wrongdoings"; and (3)
deterrence.
First, while Morales-Cruz's criminal record may justify
his sentence and all of the other special conditions imposed by the
district court, it is unclear why a sex offender treatment program
would fulfill the need to protect the community in this particular
1
The danger of recidivism should not be construed based on
general statistics of recidivism by sexual offenders, but rather by
an assessment of the conduct of a particular sexual offender,
particularly when a district court imposes a non-guideline
sentence. See, e.g., United States v. Miller, 601 F.3d 734, 739
(7th Cir. 2010) ("An above-guidelines sentence is more likely to be
reasonable if it is based on factors [that are] sufficiently
particularized to the individual circumstances of the case rather
than factors common to offenders with like crimes.") (internal
quotation marks and citations omitted).
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case. The district court has given no indication of how
defendant's temporally remote sex-offense conviction followed by a
consistent failure to commit a sexual offense would present a
danger to the community of defendant committing another sexual
offense, thus warranting the imposition of a sex offender treatment
program. Rather, as stated supra, a contrary inference from the
record is more likely: there appears to be no relationship between
defendant's failure to register and the commission of sexual
offenses. Further, in demonstrating defendant's danger to the
community, the district court listed traits associated with
Morales-Cruz's criminal conduct generally, but those traits only
traced a pattern of criminal conduct, not a pattern of committing
offenses with a sexual component (e.g., "The Court must protect the
community from individuals like Mr. Morales who openly disrespect
the law by engaging in continuous criminal conduct and fail to
abide by their supervision convictions . . . .").2
Second, the goal of promoting defendant's "insight of his
wrongdoings" may be construed as a rehabilitative goal. However,
while the imposition of a sex-offender treatment program may
rehabilitate a person with a proven proclivity of committing sexual
2
We also note that the district court did not order Morales-
Cruz professionally evaluated "for the purpose of obtaining a
reliable expert opinion whether participation in a treatment
program for sexual offenders actually comported with the needs of
society or of" Morales-Cruz himself. See Rogers, 468 F. App'x at
363.
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offenses, Morales-Cruz has demonstrated no such proclivity. He may
have demonstrated a proven proclivity towards criminal conduct, but
not towards sexual offenses. Therefore, it is unclear how sex
offender treatment would rehabilitate him as to sexual crimes if he
has not committed such crimes in the past 18 years, and it is even
less clear how the treatment program could "rehabilitate" him from
committing the non-sexual offense-based failure-to-register or
other crimes he has committed in the past 18 years. Unless a sex
offender treatment program could be shown to be reasonably related
to rehabilitation from non-sexual crimes more generally, including
failure-to-register crimes, I cannot find a reasonable connection
here.
Finally, the above arguments support a finding that there
is no reasonable relationship between defendant's criminal history
and record, the imposition of a sex offender treatment program, and
the goal of deterrence. See United States v. T.M., 330 F.3d 123,
1240 (9th Cir. 2003) ("The fact that [the defendant] has lived the
last twenty years without committing a sex offense suggests that he
no longer needs to be deterred or shielded from the public.");
Scott, 270 F.3d at 636 ("Because the condition was based on conduct
that occurred more than a decade before the current offense, the
condition would not serve the goals of deterrence or public
safety"); Kent, 209 F.3d at 1077 ("[T]he use of the condition as a
deterrent makes little sense in light of the fact that the behavior
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to be deterred had ceased independently."). The majority opinion
appears to infer a specific subjective state of mind on the part of
Morales-Cruz that would warrant the imposition of the special
condition. Specifically, it appears to infer from the record a
state of mind from his continued failure to register that "he was
likely to or wanted to commit additional offenses freed from the
constraints of registration." I find it difficult to join in that
conclusion when defendant has provided us an 18-year record of the
opposite state of mind. The district court has imposed a sentence
and a series of quite burdensome special conditions tailored to
defendant's record that defendant does not challenge; in my view,
it is unreasonable to impose additional conditions of the type
challenged on appeal which rely on pure speculation and assumptions
regarding defendant's propensity towards specifically sexual
offense-based crimes.
Because the special condition imposed constitutes a
"greater deprivation of liberty that is reasonably necessary" to
achieve the purposes of supervisory release, U.S.S.G. § 5D1.3
(b)(2), I respectfully dissent.
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