United States Court of Appeals
For the First Circuit
No. 15-1337
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN CABRERA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Julie K. Connolly, with whom Julie Connolly Law, PLLC was on
brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and
Thomas F. Klumper, Assistant United States Attorney, Acting Chief,
Appellate Division, were on brief, for appellee.
June 20, 2018
LIPEZ, Circuit Judge. Appellant Edwin Cabrera-Rivera
("Cabrera") was charged in a two-count indictment with production
and possession of child pornography. In a deal with the
government, he agreed to plead guilty to the possession count --
an offense with no mandatory minimum sentence -- and the government
agreed to dismiss the production count -- an offense with a
mandatory fifteen-year term of imprisonment. As part of the deal,
the parties agreed to recommend a term of 108 months of
imprisonment. Cabrera also agreed to waive his right to appeal
any sentence consistent with the parties' recommendation. The
district court adopted the joint recommendation and sentenced
Cabrera to the 108-month term. The court also sentenced Cabrera
to a 144-month term of supervised release with multiple conditions.
Cabrera now challenges the length of his terms of
imprisonment and supervised release and several of the supervised
release conditions, contending that his appeal waiver was not made
knowingly and voluntarily, or, in the alternative, that enforcing
the waiver would result in a miscarriage of justice. After
considering these arguments, we dismiss Cabrera's appeal of his
terms of imprisonment and supervised release, as well as his
objections to most of the supervised release conditions. The one
exception is for a condition that, by its terms, prevents Cabrera
from having any contact with his minor children without approval
of a probation officer. Thus stated, the condition implicates
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Cabrera's fundamental constitutional interest in his relationship
with his children, and it was imposed without any explanation of
its necessity. We vacate that condition and direct the district
court to reconsider it on remand.
I.
Because Cabrera's conviction and sentence followed the
entry of a guilty plea, we draw the facts from the change-of-plea
colloquy and the uncontested portions of the amended Presentence
Investigation Report ("PSR"). See United States v. Vélez-Luciano,
814 F.3d 553, 556 (1st Cir. 2016). In 2012, Cabrera, then twenty-
five years old, worked for an electrical contractor in
Barranquitas, Puerto Rico. Jane Doe ("Doe"), a sixteen-year-old
female, lived not far from Cabrera's place of work. At some point
during that year, Cabrera and Doe began spending time together.
Although the parties strenuously disagree about the nature of
Cabrera and Doe's relationship -- a matter we discuss in more
detail below -- they do not dispute that Cabrera encouraged Doe to
take sexually explicit photos of herself with a cellphone and send
them to him.
In January 2013, Department of Homeland Security agents
received information that Cabrera had engaged in sexually explicit
communications with Doe. The agents subsequently interviewed Doe
and learned that Cabrera had asked Doe to send him approximately
fifty-eight sexually explicit photos of herself. The agents
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interviewed Cabrera, who admitted that he had requested the photos.
The government then lawfully searched two cellphones owned by
Cabrera and found sexually explicit photos of Doe.
Cabrera subsequently was indicted on one count of
producing child pornography, in violation of 18 U.S.C. § 2251(a),
and one count of possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B). Cabrera and the government agreed that he
would plead guilty to the possession count in exchange for
dismissal of the production count. The plea agreement included a
joint recommendation that Cabrera receive a 108-month term of
imprisonment, but it included no recommendations regarding the
duration or conditions of Cabrera's supervised release term. Under
a section titled "Maximum Penalties," the agreement stated that
Cabrera faced a prison term of no more than ten years and also
noted -- incorrectly, it turned out -- that Cabrera was subject to
a supervised release term of no more than three years. The plea
agreement also included a "Waiver of Appeal" provision, in which
Cabrera gave up his right to appeal his conviction and sentence if
the sentence imposed was consistent with the parties'
recommendation.
At a change-of-plea hearing before a magistrate judge,
the government reviewed the terms of the plea agreement, all of
which Cabrera said he understood. During the colloquy, however,
the court questioned the provision stating that Cabrera's term of
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supervised release would be "not more than three (3) years." After
research by the prosecutor and defense counsel -- who looked up
the relevant statutes on their cellphones -- all agreed that,
pursuant to 18 U.S.C. § 3583(k), Cabrera faced a term of supervised
release of "not less than 5 [years], or life."1 The magistrate
judge gave Cabrera and his counsel a moment to confer about the
change, and the court then told Cabrera:
Okay, Mr. Cabrera, that’s what the law says. There
is nothing your lawyer can do about it. I just need to
make sure that you understand a possible maximum
sentence and part of the maximum sentence could be a
term of supervised release of up to life. Do you
understand that?
Cabrera replied, "Yes."
After advising Cabrera that the sentencing judge would
have considerable discretion in determining his sentence, the
magistrate judge went on to explain the waiver of appeal provision:
"your plea agreement contains a waiver of appeal in which you give
up your right to appeal both the judgment and the sentence if the
court accepts your plea agreement and sentences you according to
its terms, conditions and recommendations. Do you know that?"
Again, Cabrera responded, "Yes."
Upon completing the change-of-plea colloquy, the
magistrate judge found that Cabrera was competent to plead guilty,
1 During the change-of-plea hearing, this language, without
our emphasis added, was handwritten as a correction on the plea
agreement, and the change appears to be initialed by Cabrera.
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he was aware of the nature of the charged conduct and the impact
of pleading guilty, and his plea was knowing and voluntary. Hence,
the magistrate judge recommended that the district court accept
Cabrera's plea.
In its initial PSR, the Probation Office recommended a
pair of two-point enhancements not contemplated by the plea
agreement -- one for conduct involving the commission of a sexual
act or sexual contact, pursuant to U.S.S.G. § 2G2.1(b)(2)(A), and
one for the use of a computer, pursuant to U.S.S.G.
§ 2G2.1(b)(6)(B). Cabrera objected to the enhancement for sexual
contact, and an amended PSR was issued that omitted it. The
amended PSR determined Cabrera's guideline sentencing range
("GSR") to be 108-120 months, based on a total offense level of 31
and a Criminal History Category ("CHC") of I. The amended PSR
also recommended fifteen special conditions of supervised release.
Cabrera did not object to any of them.
At sentencing in February 2015, defense counsel agreed
with the guidelines calculation set out in the amended PSR and
informed the court that she had discussed the report with Cabrera.
After hearing from Cabrera, Doe, and Doe's mother, the court
explained the factors specified by 18 U.S.C. § 3553(a) that it had
considered,2 and it concluded as follows:
2
The court stated that it had considered the following
factors: (1) Cabrera's age and tenth-grade education; (2) that he
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I hope not to be committing a mistake here. But at
this time I will go with the recommendation of the
government within the plea agreement. I find that still
9 years is a significant period of time and I hope that
you use the same to continue reflecting on what you did.
For you to realize that it doesn't matter whether the
woman is the age of consent but you are not to engage in
the type of actions that you engage. You are not to
take advantage of persons with learning disabilities,
because that is still another enhancement.
Regarding Cabrera's supervised release term, the court stated:
[T]he period of supervised release will be a significant
one. In essence it will get to a point where if you do
it right, if you restructure your life, if you don't
give the Probation Officer any reason to believe that
you are engaging in any similar action or in any other
type of illegal action they will place you in minimal
supervision. But if you set a different course in life,
then they will be able to act.
Accordingly, the court sentenced Cabrera to a 108-month term of
imprisonment and a 144-month term of supervised release. Then,
without further explanation, the court imposed virtually all of
the supervised release conditions included in the amended PSR,
along with a few others. The court also reminded Cabrera that,
because he had "stipulated" to the sentence imposed, the waiver of
was in a long-term relationship and has two young children; (3)
his status as a first-time offender; (4) his use of alcohol; (5)
his stable employment and good conduct while at work; (6) letters
of support from relatives, in-laws, and neighbors; (7) that he
knew the victim was a minor; (8) that he had been in contact with
the victim since 2012 and knew she was receiving psychological
therapy; (9) that he taught the victim how to send the sexually
explicit images; (10) that he admitted showing the images to his
co-workers and that a co-worker had told him the images could lead
to trouble; and (11) that he severely injured the victim's brother
during a fight with her relatives.
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appeal provision in the plea agreement "has been triggered."
Cabrera timely appealed.
II.
Cabrera seeks review of his sentence on two grounds.
First, he argues that his appeal waiver should not be enforced
because it was not made knowingly and voluntarily. Second, he
argues that, even if the appeal waiver is valid, we should
disregard it and vacate his sentence and six conditions of
supervised release to prevent a miscarriage of justice.
To evaluate the enforceability of a defendant's waiver
of appeal, we consider three questions: (1) was the waiver's scope
clearly delineated? (2) did the district court specifically
inquire about the waiver of appellate rights? and (3) would denial
of those rights constitute a miscarriage of justice? See United
States v. Del Valle-Cruz, 785 F.3d 48, 54 (1st Cir. 2015) (citing
United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001)). The
first two prongs of what we have dubbed "the Teeter test" are
designed to ensure that "the defendant freely and intelligently
agreed to waive [his] right to appeal." Id. (quoting Teeter, 257
F.3d at 24) (alteration in original). "In examining whether the
defendant knowingly and voluntarily waived his appellate rights,
the text of the written plea agreement and the change-of-plea
colloquy are of critical importance." Sotirion v. United States,
617 F.3d 27, 33 (1st Cir. 2010). But, even if the waiver is
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knowing and voluntary, we retain discretion to disregard that
provision if enforcing it would result in a "miscarriage of
justice." Teeter, 257 F.3d at 25.
A. Knowing and Voluntary
The Waiver of Appeal provision in Cabrera's plea
agreement states that "[t]he Defendant knowingly and voluntarily
waives the right to appeal the judgment and sentence in this case,
provided that the defendant is sentenced in accordance with the
terms and conditions set forth in the Sentence Recommendation
provisions of this Plea Agreement." The "Sentence Recommendation"
provision states, in relevant part: "The parties agree to recommend
a term of imprisonment of one hundred and eight (108) months,
should the defendant be a CHC of I, II or III."
Cabrera was sentenced to the specified 108-month term,
and both the magistrate judge and district court reviewed the
waiver with him. Hence, the government argues, this clearly stated
appellate waiver was plainly triggered. Cabrera, however, asserts
that he understood the agreement differently. In his view, "108
months would be the upper limit of any possible total sentence he
might receive, not the time he had actually agreed to serve in
prison." (Emphasis added.) That is, Cabrera maintains that the
combined period of incarceration and supervised release comprise
his "sentence," and the waiver of appeal is thus inoperative
because his total sentence -- which included 144 months of
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supervised release -- exceeded the agreed-upon 108 months. Cabrera
premises this argument on well-established First Circuit precedent
holding that the word "sentence" in a plea agreement "encompasses
every component of the sentence," including imprisonment,
supervised release, and any attendant conditions. United States
v. Santiago, 769 F.3d 1, 7 (1st Cir. 2014).
There are two related problems with this argument.
First, the Sentence Recommendation provision explicitly provided
for "a term of imprisonment of one hundred and eight (108) months,"
not a total "sentence" of that length. (Emphasis added; other
emphasis deleted.) Second, our case law establishes that a
defendant's waiver of the right to appeal his sentence covers the
period of supervised release and any attendant conditions
regardless of whether those post-incarceration penalties are
expressly referenced in the plea agreement. See id.; see also,
e.g., Vélez-Luciano, 814 F.3d at 557-58; United States v. Rojas,
780 F.3d 68, 69 (1st Cir. 2015).
That is not to say, however, that Cabrera's argument is
unreasonable. If, under our precedent, a "sentence" consists of
both incarceration and supervised release, one may logically argue
that a defendant who receives a term of supervised release that is
not included in a "Sentence Recommendation" has not been "sentenced
in accordance with the terms and conditions set forth in the
Sentence Recommendation provisions of [his] plea agreement." But
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even if that argument could fairly be raised under our caselaw
where a term of supervised release is entirely discretionary,3 it
has no traction here. As the magistrate judge clarified at
Cabrera's change-of-plea hearing, Cabrera was subject to a
mandatory minimum term of supervised release of five years. The
plea agreement, as amended, specified this statutory term in the
provision labeled "Maximum Penalties." Hence, in moving forward
with the plea agreement, Cabrera necessarily agreed to both 108
months' imprisonment and a minimum of five years of supervised
3 Where the decision to impose supervised release is left to
the district court's discretion, and the parties recommend only a
term of imprisonment, a defendant could plausibly contend that,
under ordinary contract principles, a sentence that includes a
term of supervised release is not "in accordance with" a "Sentence
Recommendation" proposing only a term of imprisonment. However,
where a statute sets a mandatory minimum term of supervised
release, that statutory minimum is unavoidably incorporated within
a plea agreement whether or not expressly stated in the Sentence
Recommendation.
Our precedent does not recognize this discretionary vs.
mandatory difference, and the broad language in our cases poses a
possible barrier to an appellant seeking to rely on such a
distinction. However, as Cabrera points out, the plea agreements
in a number of our principal cases on appellate sentencing waivers
specified that the defendant faced a mandatory minimum five-year
term of supervised release. Hence, we would have had no occasion
in those cases to confront any possible differences between
discretionary and mandatory terms of supervised release. See
Vélez-Luciano, 814 F.3d at 559 (noting five-year mandatory minimum
term of supervised release); Rojas, No. 3:13-cr-00149-JAG-MEL,
Docket No. 34, at 2 (filed Aug. 6, 2013) (plea agreement specifying
"not less than five (5) years"); Santiago, No. 3:12-cr-00260-DRD,
Docket No. 31, at 2 (filed Aug. 31, 2012) (same: "not less than 5
years"); Del Valle-Cruz, No. 3:12-cr-00262-JAF, Docket No. 34, at
2 (filed Aug. 6, 2012) (same: "not less than 5 years").
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release. See, e.g., Vélez-Luciano, 814 F.3d at 559 (observing
that "the plea agreement -- which [the defendant] signed and
initialed -- noted that supervised release of at least five years
was part of the maximum sentence").4
Cabrera resists this reasoning by challenging the
adequacy of the plea colloquy concerning his exposure to a mandated
term of supervised release. He contends that "the record is
unclear about whether [he] fully understood the consequences of
[his] guilty plea," noting that even his attorney was confused.
To be sure, as described above, there was initial uncertainty about
whether the applicable term of supervised release was capped at
three years or would be at least five years. Once the court and
counsel determined that the three-year maximum stated in the plea
agreement was wrong, the only explanation of the error was given
to Cabrera by his attorney off the record. The magistrate judge
4 The dissent states that we have incorrectly suggested that
"a waiver of appeal may not extend to a term of supervised release
where that term is left to the court's discretion by the plea
agreement." Dissent, at n.2. Yet, the term (or duration) of
supervised release is a statutory element of a sentence for which
the parties may, and sometimes do, negotiate. Accordingly,
contract principles reasonably could be applied to such negotiated
terms. By contrast, the conditions of supervised release are
neither governed by statute nor included in the Sentence
Recommendation provision of plea agreements. We have no need to
consider here the impact on challenges to conditions of release if
a waiver of appeal is determined not to bar appeal of the
supervised release term.
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then told Cabrera that "[t]here is nothing your lawyer can do about
it."
If this were the entire colloquy, we would be concerned
about what Cabrera's attorney told him and whether Cabrera
understood that he was giving up his right to appeal a "sentence"
that would include at least five years of supervised release in
addition to the 108-month term of imprisonment.5 However, the
magistrate judge went on to expressly advise Cabrera that his
maximum sentence could include "a term of supervised release of up
to life." Asked if he understood that possibility, Cabrera replied
"Yes." Subsequently, the magistrate judge explained the waiver of
appeal provision, again eliciting a "Yes" response after asking
Cabrera if he knew that his "plea agreement contains a waiver of
appeal in which you give up your right to appeal both the judgment
and the sentence if the court accepts your plea agreement and
sentences you according to its terms, conditions and
recommendations."
5
Although certain of Cabrera's contentions in challenging
the knowing and voluntary nature of his waiver of appeal appear to
implicate his acceptance of the plea agreement itself, Cabrera
emphatically disclaims any intention to challenge the agreement as
a whole. Absent the plea deal, Cabrera could have faced a fifteen-
year mandatory minimum sentence on the count charging him with
producing child pornography. See 18 U.S.C. § 2251(e). He asserts
that his arguments are focused solely on the scope of the appellate
waiver and whether he knowingly waived his right to appeal a
"sentence" that exceeded the recommended 108 months' imprisonment.
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Under our precedent on the scope of sentencing appeal
waivers, this colloquy was sufficient to satisfy Teeter's inquiry
requirement. The magistrate judge's explanation of the appeal
waiver's consequences was "specific enough to confirm the
defendant's understanding of the waiver and [his] acquiescence in
the relinquishment of rights that it betokens." Teeter, 257 F.3d
at 24 n.7; see also Sotirion, 617 F.3d at 35 (upholding appellate
waiver as knowing and voluntary where, inter alia, the court "did
not fail to address the waiver provision entirely, nor did he
contradict the terms of the written waiver"). Moreover, if any
uncertainty remained, it was dispelled by the PSR, which reported
both the recommended 108-month term of imprisonment, and the five-
year statutory minimum term of supervised release. Indeed, Cabrera
specifically advocated for a 108-month term of imprisonment in his
objections to the PSR, and he recognized in the same document that
he would be subject to a minimum five-year term of supervised
release following the period of incarceration and that he would
face restrictions on contact with his children.
Accordingly, Cabrera may challenge his sentence,
including the term and conditions of supervised release, only if
he can show that his case falls within the rare exception carved
out by the final prong of the Teeter test: that enforcement of the
waiver would work a miscarriage of justice.
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B. Miscarriage of Justice
In Teeter, we cautioned that, because appellate waivers
"are made before any manifestation of sentencing error emerges,
appellate courts must remain free to grant relief from them in
egregious cases." 257 F.3d at 25. Appellate waivers are "meant
to bring finality to proceedings conducted in the ordinary course,"
but they are not intended to leave defendants "totally exposed to
future vagaries (however harsh, unfair, or unforeseeable)." Id.
Therefore, we held that "if denying a right of appeal would work
a miscarriage of justice, the appellate court, in its sound
discretion, may refuse to honor the waiver." Id.
Still, the miscarriage-of-justice exception is to be
applied "sparingly and without undue generosity." Sotirion, 617
F.3d at 36 (quoting Teeter, 257 F.3d at 26); see also Del Valle-
Cruz, 785 F.3d at 56 (observing that the exception is "often sought
but seldom meted out" (quoting Santiago, 769 F.3d at 10)); United
States v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (noting
that the miscarriage-of-justice standard "requires a strong
showing of innocence, unfairness, or the like"); Teeter, 257 F.3d
at 25 n.10 (stating that "a waiver should [not] be construed to
bar an appeal if the trial court imposes a sentence exceeding the
maximum penalty permitted by law or one that violates a material
term of the plea agreement" (citations omitted)). Thus, "[t]o
successfully invoke the miscarriage of justice exception, a
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'garden-variety error will not suffice,' rather there must be, 'at
a bare minimum, an increment of error more glaring than routine
reversible error.'" Santiago, 769 F.3d at 8 (quoting United
States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013)). In making
that assessment, "we consider, among other things, the clarity of
the alleged error, its character and gravity, its impact on the
defendant, any possible prejudice to the government, and the extent
to which the defendant acquiesced in the result." Gil-Quezada,
445 F.3d at 37; see also United States v. Marte-de la Cruz, 876
F.3d 370, 374 (1st Cir. 2017) (same).
1. Terms of Imprisonment and Supervised Release
Cabrera makes a threshold argument that he should not be
sentenced as a "typical sexual offender" because his relationship
with Doe was "consensual and voluntary." Under Puerto Rico law,
a consensual sexual relationship with Doe would have been lawful.
Moreover, Cabrera emphasizes that there is no evidence of his
"predatory exploitation" of Doe. Indeed, although the government
maintains that Cabrera's "conduct was serious and involved the
sexual exploitation of a minor," including physical sexual conduct
(which Cabrera denies), it concedes that Doe "willingly provided
[Cabrera] with the . . . images." In short, Cabrera argues that
his within-guidelines sentence is unduly harsh given his specific
conduct -- what he calls "consensual sexting" -- and thus enforcing
the waiver of appeal would effect a miscarriage of justice.
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We disagree. A claim that an otherwise lawful, within-
guidelines sentence is excessive asserts just the sort of "garden-
variety" error that does not surmount the miscarriage-of-justice
hurdle. See, e.g., Santiago, 769 F.3d at 8. Moreover, Cabrera
concedes, as he must, that the terms of the plea agreement required
the parties to jointly recommend a 108-month term of imprisonment
-- a recommendation that Cabrera in fact made, both in his
sentencing memorandum and at sentencing, and which the district
court explicitly adopted. Cabrera can hardly claim that barring
a challenge to his term of imprisonment amounts to a miscarriage
of justice when he received the precise term for which he
advocated.
Cabrera's objection to his term of supervised release
likewise targets the sort of garden-variety error that need not be
reviewed on appeal to avoid a miscarriage of justice. He asserts,
with virtually no elaboration, that the district court gave an
inadequate justification for picking the specific term that it
did, but he does not explain why a twelve-year term is improper.
Although the district court's remarks were brief, the court did
reveal why it chose "a significant" period of time:
[I]f you do it right, if you restructure your life, if
you don’t give the Probation Officer any reason to
believe that you are engaging in any similar action or
in any other type of illegal action they will place you
in minimal supervision. But if you set a different
course in life, then they will be able to act.
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Moreover, lengthy terms of supervised release for sexual-
misconduct crimes are not uncommon. See, e.g., Vélez-Luciano, 814
F.3d at 558 (fifteen years); Del Valle-Cruz, 785 F.3d at 53 (seven
years); Rojas, 780 F.3d at 68 (ten years); Santiago, 769 F.3d at
6 (ten years); United States v. Morales-Cruz, 712 F.3d 71, 72 (1st
Cir. 2013) (ten years); United States v. Perazza-Mercado, 553 F.3d
65, 66 (1st Cir. 2009) (fifteen years). Hence, enforcing the
appellate waiver for Cabrera's contentions that the court
inadequately explained the 144-month term, and should have
selected a shorter term, does not result in a miscarriage of
justice.
2. Supervised Release Conditions
We thus are left with only Cabrera's challenge to the
following six of the twenty-three imposed conditions of supervised
release6:
[1] The defendant shall not associate with codefendants,
individuals with whom . . . defendant has previously[]
traded illicit[] material, a family member or friend
under Criminal Justice supervision for a sex crime or
6 The district court did not number the conditions of
supervised release, and we have added numbers here only for ease
of reference. We note that, in some instances, the court divided
into several separate conditions a single, multi-part
recommendation contained in the PSR. Hence, the fifteen numbered
conditions listed in the PSR roughly correlate with twenty of the
conditions articulated by the court at the sentencing hearing.
The additional three conditions prohibited Cabrera from committing
another crime or unlawfully possessing controlled substances
(requirements noted in the PSR separately from the recommended
conditions), and required him to "participate in an approved in-
patient or out-patient mental health treatment program."
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identified past victim unless in a therapeutic setting
and with the prior approval of the Probation Officer.
[2] The defendant shall have no personal contact with
the victim and or minors under the age of 18 through
mail, letters, telephone communication, audio or visual
computer or electronic devices, visit social networking
sights [sic] or third parties unless approved in advance
by the Probation Officer. The only exception in this
condition relies on the incidental contact in normal
life with minors and those that relate to his relatives.
[3] The defendant shall not reside, be in the company,
date or socialize by himself with a child or children
below the age of 18 unless previously approved by the
Probation Officer and after a third party risk has been
duly assigned.
[4] The defendant shall not engage in a specified
occupation, business or profession bearing a reasonable
relationship to the conduct constituting the offense.
Specifically the defendant shall not work with children
under the age of 18 or hold a job that gives him
authority over potential victims, gives him access to
vulnerable populations or places him in settings in
school or playgrounds. Any employment must be approved
in advance by the Probation Officer who will make an
assessment of the job placement and set employment
restrictions if warranted based on the sex offender
management procedure manual.
[5] The defendant shall not participate in any volunteer
activity or be involved in any children or youth
organization or any group that would bring him in close
contact with a child or children under the age of 18
unless prior approval of the Probation Officer.
[6] The defendant shall stay at his approved residence
every night and not sleep or stay overnight anywhere
else without prior approval from the probation office.
The government concedes that the court did not explain
its reasons for imposing these six conditions. Indeed, based on
our review of the sentencing transcript, the court provided no
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specific explanation for any of the imposed conditions of
supervised release, and instead merely read aloud the list of
conditions largely as proposed in the PSR. Nevertheless, the
government contends that the rationale for the conditions is
apparent from the record. Moreover, the government presses its
argument that Cabrera's appeal waiver should operate to bar his
challenge to all of these condition. Hence, we look to the record
to determine whether the court's reasoning can be inferred as to
each condition, keeping in mind that Cabrera's appeal waiver bars
appellate review of all but the most egregiously unjustified
conditions. See, e.g., Del Valle–Cruz, 785 F.3d at 55-56.
As to the first condition -- which restricts Cabrera's
contact with "codefendants, individuals with whom . . . [Cabrera]
has previously[] traded illicit[] material," persons "under
Criminal Justice supervision for a sex crime," or Doe -- Cabrera
makes only a perfunctory attempt to explain why upholding it would
result in a miscarriage of justice, claiming that this condition
should not apply to him because he never engaged in "illicit
trading" of child pornography, even if he did show the illicit
pictures to his coworkers. Arguing that a boilerplate condition
does not apply precisely to his conduct does not explain why
enforcing the condition would amount to a miscarriage of justice,
especially when unlawfully displaying images to others is conduct
that Cabrera acknowledges doing.
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As to the second, fourth, and fifth conditions --
restricting Cabrera's communication, employment, and volunteer
activities with minors, respectively -- we find no error sufficient
to support a miscarriage-of-justice finding. As we explained in
United States v. Pabon, associational restrictions "operate to
protect the public, especially children, from the defendant, as
well as to promote the defendant's rehabilitation." 819 F.3d 26,
31 (1st Cir. 2016) (citation omitted). And, although the record
supporting these conditions is limited, Cabrera nevertheless pled
guilty to conduct involving the sexual exploitation of a minor,
justifying at least some degree of associational restriction.
Moreover, none of these conditions imposes "an outright ban on
association with minors, but only curtail association, such as by
requiring pre-approval by the probation officer or another
authority." Id. at 31-32. With the opportunity for relief from
the restrictions, and the additional exception made in condition
two for Cabrera's communications with family members, these
conditions are sufficiently circumscribed such that enforcing the
appellate waiver would not constitute a miscarriage of justice.
See id. at 32 ("Where the restriction is subject to supervision by
the probation officer, a safeguard is that the defendant can
petition the district court to modify the condition in the event
that approval has been unreasonably withheld."); see also United
States v. Fey, 834 F.3d 1, 6 (1st Cir. 2016) (upholding a
- 21 -
condition, imposed without "express explanation," requiring the
defendant to "seek approval from probation before accepting a job
or volunteer activity that would bring him into direct contact
with minors"); Del Valle-Cruz, 785 F.3d at 57 ("Although we are
troubled by the imposition of conditions that would prevent [the
defendant] from engaging in activities such as volunteering at his
son's school, . . . we cannot say with assurance that their
imposition would result in a miscarriage of justice.").
As to the sixth condition -- which requires Cabrera to
"stay at his approved residence every night" unless he has "prior
approval from the probation office" -- we similarly reject the
miscarriage-of-justice contention. Although the court erred by
providing no reasoning for its decision, "we cannot say it was 'an
increment of error more glaring than routine reversible error.'"
Del Valle-Cruz, 785 F.3d at 56 (quoting Santiago, 769 F.3d at 8).
And, as with the associational restriction discussed above,
Cabrera may request exceptions to this condition from his probation
officer. See United States v. DaSilva, 844 F.3d 8, 14 (1st Cir.
2016) ("[G]iving the probation officer some authority to make
exceptions as warranted is generally seen as a benefit of such
orders in that it allows for flexibility and permits personal
circumstances to be dealt with as they arise.").
Cabrera's sole remaining challenge is to the third
condition of supervised release. To the extent that this condition
- 22 -
limits his ability to "reside, be in the company, date or socialize
by himself with" minors generally, we find no miscarriage of
justice for the same reasons we have upheld the appeal waiver with
respect to the other associational conditions. Cabrera argues,
however, that this condition is overbroad because, unlike
condition two, which makes an exception for communication with
family members, condition three makes no exception for Cabrera's
own children -- a son and a daughter who will still be minors when
Cabrera completes his 108-month sentence. Cabrera contends that
this condition impermissibly restricts his constitutional right to
raise his children and, particularly because the district court
gave no reasons for imposing it, barring an appellate challenge
would effect a miscarriage of justice.7
We agree that, in this one respect, Cabrera meets the
stringent criteria for relief under the miscarriage-of-justice
exception. In Del Valle-Cruz, we stated that a waiver of appeal
may be disregarded "when an error of significant or constitutional
dimension is clear, and where there is 'little prejudice to the
7 Our dissenting colleague implies that, instead of deciding
the miscarriage-of-justice question, we should remand for
clarification on whether the district court meant to include
Cabrera's own children within the scope of condition three. In
our view, there is no lack of clarity in the condition as announced
by the court. In stark contrast to condition two, condition three
contains no exception for Cabrera's children. Given that the
condition as imposed clearly restricts a fundamental liberty
interest, see infra, we can see no justification for avoiding the
miscarriage-of-justice inquiry.
- 23 -
government should we take up the merits of [the defendant's]
appeal.'" 785 F.3d at 56 (quoting Santiago, 769 F.3d at 10)
(alteration in original). In particular, we concluded that we
could look beyond the defendant's appellate waiver because the
district court had provided no justification for two conditions
that burdened the defendant's "fundamental constitutional liberty
interest" in his relationship with his child. Id. at 57; see also
Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (recognizing that
"the relationship between parent and child is constitutionally
protected"); Vélez-Luciano, 814 F.3d at 563 & n.12 (noting the
"substantial constitutional questions" concerning restrictions on
the defendant's "relationship with his minor children"); Del
Valle-Cruz, 785 F.3d at 58 (stating that "[t]he district court is
required to provide a reasoned and case-specific explanation for
the conditions it imposes" (internal quotation marks omitted));
Perazza-Mercado, 553 F.3d at 75 (noting that "courts of appeals
have consistently required district courts to set forth factual
findings to justify special probation conditions" (quoting United
States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).
So too here. As in Del Valle-Cruz, the error is
manifest: the district court imposed condition three, restricting
Cabrera's relationship with his children, without any explanation,
despite the clear precedent holding that "a district court is
required to provide a reasoned and case-specific explanation for
- 24 -
the sentence it imposes." United States v. Gilman, 478 F.3d 440,
446 (1st Cir. 2007); cf. United States v. Mercado, 777 F.3d 532,
539 (1st Cir. 2015) (rejecting challenge to conditions restricting
defendant's interactions with minors where the district court
detailed its reasons, including "to mitigate the risk of this
particular defendant reoffending," and also linked "the
rehabilitative and deterrent features of the . . . conditions to
the defendant's lengthy criminal history and his persistent
failure to comply with the terms of his pretrial release" (emphasis
added)).8 In addition, we discern no burden on the government from
merits review of Cabrera's challenge to the condition.
Although in some circumstances there would be reason to
distinguish between a defendant's son and daughter in evaluating
the asserted injustice of enforcing an appellate waiver for the
associational restriction imposed by condition three, see, e.g.,
Pabon, 819 F.3d at 33 n.6; Vélez-Luciano, 814 F.3d at 563-64, the
criminal activity at issue here -- a consensual exchange of
8In response to an inquiry from the panel, the parties
obtained information from the United States Probation Office for
the District of Puerto Rico on the use of this condition in that
jurisdiction. Probation Officer Charlette Agostini reported that
"[t]his special condition is imposed in cases involving sex
offenses against minors." She stated that "[t]he courts routinely
review each case individually and determine which conditions
reasonably apply given the particularity of each case." An on-
the-record explanation of the court's reasoning is necessary,
however, to confirm that such an assessment took place and to
"enable[] appellate review." Perazza-Mercado, 553 F.3d at 75.
- 25 -
sexually explicit images with a non-family member who is of age to
consent under Puerto Rico law -- does not indicate a risk of harm
to either of Cabrera's minor children. Nor does Cabrera's personal
history otherwise present such a risk; his amended PSR reports
stable family relationships and no history of drug use or alcohol-
related problems. Absent countervailing considerations -- and the
record before us reveals none -- the court's failure to give any
rationale for depriving Cabrera of this constitutional liberty
interest leaves "no doubt that enforcement of the waiver would be
a miscarriage of justice." Del Valle-Cruz, 785 F.3d at 57; see
also id. (noting that a condition imposed without explanation "does
not automatically result in a miscarriage of justice," but the
standard may be met "where, as here, the error is of this
constitutional dimension").
The dissent contends that our decision protects the
defendant's rights by "ignoring the equal rights of [Cabrera's]
wife and children." To the contrary, we agree that the wellbeing
of Cabrera's family members is a relevant consideration for the
district court in evaluating whether to limit Cabrera's
constitutional right to associate with his children. We hold only
that a miscarriage of justice would result if we denied Cabrera an
opportunity to challenge that significant, yet unexplained,
limitation -- and that, as discussed infra, the condition cannot
be upheld absent explanation.
- 26 -
In arguing that the record reveals the district court's
rationale for condition three, our dissenting colleague points to
the court's "concern[] about the risk of illegal actions by the
defendant while on supervised release" and the court's warnings to
Cabrera not to repeat "the type of actions in which he engaged" or
to take retaliatory action against Doe's family. The court did
not, however, articulate concerns or warnings about Cabrera's
interactions with his children. Hence, the concerns it expressed
do not explain the constitutional limitation imposed by the
condition.
Nor is the court's rationale inferable from the record.
The dissent's detailed recounting of the defendant's activities
with Doe -- a female of consenting age, and not a family
member -- does not demonstrate a need to interfere with Cabrera's
constitutionally protected relationship with his own offspring.
The court did not reject out-of-hand the following depiction of
Cabrera's conduct, which was offered by defense counsel:
[W]e are not here to pass judgment on moral
values. Nevertheless he was in a
relationship, he began a relationship with
this young woman. He was hiding that
relationship from his wife. And he incurred
in the acts that the Court has before her.
But this is not one of these people who prays
on young women for the purpose of committing
sexual offenses. This is just one of those
cases of misjudgment of what the law is in
relation to relationships with older young
people and younger adults.
- 27 -
The court itself expressly recognized the positive aspects of
Cabrera's background, noting that he "has had a stable relationship
for the past six years," is a first-time offender, maintained
stable employment, and had letters from relatives and neighbors
attesting to his positive character. Our point, simply put, is
that the district court's assessment of the circumstances, not
ours, determines the validity of condition three. And given the
facts as depicted by the court, the need for such a
constitutionally significant limitation is not apparent.
Recognizing the relevance of our decision in Del Valle-
Cruz to this case, the dissent attempts to distinguish the facts
with an assertion that Cabrera was more of a danger to his son and
daughter than the defendant in Del Valle-Cruz was to his children.
As our discussion below reveals, the record before us does not
support that conclusion. Our colleague further suggests that
reliance on Del Valle-Cruz is inapt where a defendant is sentenced
for an actual sex offense rather than for failing to register as
a sex offender. Although that distinction is certainly relevant
when we consider a challenge to a condition restricting parental
rights, we have never taken such a categorical approach. Rather,
as reflected in the discussion of our caselaw in the next section,
our inquiry relies on case-by-case scrutiny of individual
circumstances.
- 28 -
Accordingly, we exercise our discretion to bypass the
appeal waiver with respect to condition three and proceed to the
merits of Cabrera's challenge.
C. Cabrera's Contact with His Children.
Cabrera's failure to object to condition three at
sentencing means our review is only for plain error. See Vélez-
Luciano, 814 F.3d at 565. The government argues in a footnote,
however, that we should not afford Cabrera even plain error review,
contending that he has waived any arguments regarding his
conditions of supervised release by failing to frame his arguments
under that standard's familiar rubric. Specifically, the
government points to our recent opinion in Pabon, where we held
that a defendant's challenges to his conditions of supervised
release were waived "because he ha[d] not even attempted to meet
his four-part burden for forfeited claims" under plain error
review. Pabon, 819 F.3d at 33. Pabon, however, did not address
such claims in the context of an appellate waiver. See id. at 30
n.3 (noting that the government "expressly declined" to rely on
appeal waiver because it was "easier to resolve the appeal on the
merits"). More importantly, as we have recently indicated, our
circuit precedent is unclear as to "what distinction, if any,
- 29 -
exists between the miscarriage-of-justice and the plain-error
standards." Vélez-Luciano, 814 F.3d at 565 n.15 (emphasis added).9
Given this lack of clarity, we decline to find that Cabrera has
waived his challenge and review for plain error.10
9 We acknowledge the artificiality of deciding that a
challenge to a supervised release condition is sufficiently
persuasive to meet the miscarriage-of-justice standard, and then
separately analyzing the merits of the challenge, when the
arguments made for a miscarriage of justice are indistinguishable
from the arguments made on the merits. Indeed, it is difficult to
imagine any argument that could vault the exceptionally high hurdle
imposed by the miscarriage-of-justice standard only to stumble on
abuse-of-discretion or plain-error review. See Vélez-Luciano, 814
F.3d at 565 n.15 (finding that condition of supervised release
amounted to both a miscarriage of justice and plain error).
Regardless, our recent cases in this area follow this two-step
approach. See Vélez-Luciano, 814 F.3d at 565 n.15; Del Valle-
Cruz, 785 F.3d at 57 (deciding whether appeal waiver would work a
miscarriage of justice before "proceed[ing] to consider the merits
of the appeal" under abuse-of-discretion standard). Hence, we
will do the same, leaving for another day the questions of whether
a separate inquiry on the merits is necessary after finding a
miscarriage of justice, and whether plain-error and miscarriage-
of-justice review are functional equivalents.
10 Notwithstanding our court's recognition of uncertainty
about whether the plain error and miscarriage-of-justice standards
fully overlap, and the importance of the right at stake here, the
dissent takes the unreasonable position that Cabrera is not
entitled to plain error review. In justifying that position, the
dissent dismisses as irrelevant an important difference between
this case and Pabon. In Pabon, we did not address the miscarriage-
of-justice standard, and the opinion does not describe the
arguments, if any, that the defendant offered on that subject. By
contrast, in presenting his miscarriage-of-justice argument,
Cabrera has, in effect, argued each element of the plain error
test, and we have addressed them. See United States v. Garay-
Sierra, 885 F.3d 7, 12 (1st Cir. 2018) (describing the four
elements of plain error as "error, plainness, prejudice to [him],
and the threat of a miscarriage of justice" (quoting United States
v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (alteration
in original)).
- 30 -
None of our prior cases addressing conditions of
supervised release that restrict parental rights is a perfect match
for Cabrera's circumstances. As we shall describe, the defendants'
criminal activities differ considerably from case to case, and the
challenged conditions most often were imposed when the defendant
had failed to register as a sex offender rather than for the sexual
misconduct itself. The lapse in time between the sexual misconduct
and the imposition of the challenged conditions thus also varies.
Nonetheless, taken as a whole, our precedent provides relevant
guidance for the plain error inquiry here.
We begin by elaborating on our analysis in Del Valle-
Cruz. As recounted above, we disregarded the defendant's waiver
of appeal because the unexplained imposition of conditions
"prohibiting [the defendant] from having personal contact with,
and living with, any minor child" constituted a miscarriage of
justice when applied to the defendant's own children. 785 F.3d at
52, 57-58. We then decided on the merits that the district court
had abused its discretion in imposing the conditions without
explanation. Id. at 57-64. In reaching that conclusion, we relied
heavily on the lack of a reasonable relationship between the
defendant's crime -- violation of the federal Sex Offender
Registration and Notification Act ("SORNA") -- and the ban on
- 31 -
interaction with his minor children. See id. at 59–62.11 We also
noted the absence of any record evidence that the presence of a
child in the home would create a risk of recidivism; the condition
was imposed eighteen years after the underlying sexual offense;
the defendant had committed no sexual or minor-based crimes during
those eighteen years; he had lived with his older children for six
years without incident; "his school and employment demonstrate[d]
increasing stability in recent years"; and "[t]he district court
provided no clue as to its reasoning." Id. We also held that the
authorization of exceptions for contact with the defendant's own
children, at the discretion of a probation officer, was
insufficient to overcome the underlying error. See id. at 63 ("We
. . . decline the government's invitation to punt by placing a
probation officer between parent and child.").12
11 SORNA defines "sex offender" as "an individual who was
convicted of a sex offense," and provides, inter alia, that "[a]
sex offender shall register, and keep the registration current, in
each jurisdiction where the offender resides, where the offender
is an employee, and where the offender is a student." 34 U.S.C.
§§ 20911(1), 20913(a).
12The dissent fails to adhere to this precedent in concluding
that the district court, without explanation, can place a probation
officer between Cabrera and his children. Under Del Valle-Cruz,
such an intrusion into the parental relationship, absent
explanation from the district court, is unsupportable. The case
highlighted by the dissent, United States v. Mercado, 777 F.3d 532
(1st Cir. 2015), is not to the contrary. As we explained in
rejecting the defendant's challenge to various conditions,
including restricted contact with his children, the district court
there "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
- 32 -
Subsequently, in Vélez-Luciano, we faced a challenge to
release conditions restricting contact with minors by a defendant
who, like Cabrera, had pled guilty to possession of child
pornography and waived his right to appeal. See 815 F.3d at 557.
There, the record indicated the defendant had sexually abused two
unrelated female minors. See id. at 556-57. We concluded that
the miscarriage-of-justice standard would bar a challenge to the
condition insofar as it applied to the defendant's interactions
with his daughter, see id. at 563, noting, inter alia, that the
defendant had lived for a period of time "in the same house as one
of his minor victims," id. at 564; cf. Santiago, 769 F.3d at 6 &
n.3, 9 (rejecting miscarriage-of-justice claim for a condition
barring contact with minor children, including defendant's own,
where defendant had molested the daughter of his former girlfriend
while living with the girlfriend and her daughter). However, we
also noted in dictum in Vélez-Luciano that applying the condition
to the defendant's minor son raises "substantial constitutional
comply with the terms of his pretrial release." Id. at 539. In
this case, however, the court erroneously gave no explanation for
condition three. Moreover, the panel in Mercado noted that the
defendant had neither lived with, nor supported, his two minor
children for some years. Id. at 539 n.3. By contrast, the record
indicates that Cabrera's nuclear family was intact. Indeed,
according to defense counsel, Cabrera's wife brought their second
child -- born after his arrest -- to the prison to see him.
- 33 -
questions" because the record lacked any evidence that the
defendant was a risk to male minors. 814 F.3d at 564.13
More recently, in Pabon, we rejected a defendant's
challenge "that the district court failed to make sufficient
findings justifying the restrictions on association with his minor
daughter." 819 F.3d at 34. The defendant, who had previously
been convicted of sexually abusing the fourteen-year-old daughter
of his then-girlfriend, had been sentenced in the case on appeal
for failing to register as a sex offender as required by SORNA.
Id. at 29. Although we acknowledged that Del Valle-Cruz had "held
that an infringement of a parent's right to associate with his
child requires 'a greater justification,'" we concluded that,
given the facts of the case, neither the restriction itself nor
the district court's failure to more fully explain the condition,
was "clear or obvious error." Id. at 34 (quoting Del Valle–Cruz,
785 F.3d at 62). Among other points, we noted that, "unlike Del
Valle-Cruz, [Pabon] has a copious criminal history and received a
13 In Vélez-Luciano, the defendant did not raise the
constitutional implications of restricting contact with his
children until oral argument, and we therefore deemed the argument
waived. 814 F.3d at 563. We nonetheless discussed the issue at
some length, and "highlight[ed]" the constitutional issue
triggered by application of the condition to the defendant's son,
"so that the Probation Officer does not operate on a blank legal
canvas should [the defendant] request, after his release from
prison . . . , the Probation Officer to exercise the authority,
delegated by the District Judge, to make exceptions from this
condition." Id. at 564.
- 34 -
clear explanation for the conditions imposed." Id. at 32.14
However, we also acknowledged our observation in Vélez-Luciano, in
dictum, that "substantial constitutional questions" are presented
when a defendant convicted for sexual misconduct involving minor
girls is restricted from associating with his son. Id. at 34 n.6.
In Fey, another SORNA failure-to-register case, we found
plain error where the district court imposed, without explanation,
a supervised release condition similar to the one Cabrera
challenges here. 834 F.3d at 3. Specifically, we noted that the
challenged condition, "in addition to having a weak temporal
connection with Fey's sex offense," was overbroad, "prohibit[ing]
Fey from having unapproved 'direct or indirect contact' with all
children: male children, female children, and children of all ages,
14Pabon had preserved some of his challenges to the
associational conditions, and we reviewed those for abuse-of-
discretion. See 819 F.3d at 30. Other challenges, including to
restrictions on contact with his daughter, were unpreserved and
subject only to plain-error review. See id. at 33. We held, with
respect to both categories, that the court's explanation for
imposing the conditions was adequate. We described the court's
rationales, in pertinent part, as follows:
The court found that the conditions were
necessary in order to keep the public safe,
and especially to protect minors from Pabon's
violent inclinations. It explained that Pabon
had "demons" he needed to deal with, a history
of beating up women that needed to be
addressed, and an inability to control his
anger that made him a potential danger to
children.
819 F.3d at 33.
- 35 -
whether or not they are members of Fey's family." Id. Because
the "record reveal[ed] no instances in which Fey committed a sex
offense of any kind against boys, against pre-pubescent children,
or against members of his family," we vacated the condition and
remanded for resentencing "limited to a reexamination of that
condition." Id. at 5, 8.
We can readily draw from this precedent the conclusion
that condition three's unexplained prohibition on Cabrera's
contact with his son clears the plain error hurdle. As reflected
in our discussion above, we repeatedly have expressed concern about
conditions that limit contact with male children when the
defendant's offense involved no inappropriate conduct with males.
Although the cited decisions all were issued after Cabrera's
sentencing in February 2015, both the parental liberty interest at
stake and the requirement to justify conditions of supervised
release were well established by that time. See Quilloin, 434
U.S. at 255 (noting, in 1978, the importance of the relationship
between parent and child); Perazza-Mercado, 553 F.3d at 75 (noting,
in 2009, that we had "consistently required district courts to set
forth factual findings" to justify special conditions (quoting
Warren, 186 F.3d at 366)). We thus have no difficulty concluding
that the summary prohibition on Cabrera's contact with his son,
imposed "without apparent grounding in the record," is a plain,
prejudicial error of such consequence that this aspect of Cabrera's
- 36 -
sentencing "impair[s] the 'fairness, integrity, or public
reputation of the judicial proceedings.'" Fey, 834 F.3d at 5
(quoting Perazza–Mercado, 553 F.3d at 79).
The impropriety of the summary prohibition on contact
between Cabrera and his daughter, subject to Probation Office
approval, is arguably less obvious. Cabrera's criminal activity
did involve a young female. In addition, the sentencing condition
he challenges was imposed for the sexual misconduct crime itself
and not -- as in most of the cases above -- for a SORNA crime that
occurred years after the sexual misconduct. On the facts before
us, however, the unexplained bar against Cabrera's contact with
his daughter is also troubling. Unlike the defendant's unlawful
activity in Pabon, where we rejected a claim of plain error,
Cabrera's crime did not involve a girl below the applicable age of
consent and did not take place at a domestic partner's home. See
819 F.3d at 32. To the contrary -- and without minimizing or
condoning Cabrera's criminal conduct in any way -- any physical
relationship he had with Doe would not itself have been unlawful.
Moreover, unlike the defendant in Pabon -- who had "violent
inclinations," 819 F.3d at 33 -- Cabrera's PSR depicts him as a
stable and supportive father and domestic partner.15 Hence, as in
15The dissent suggests that we have provided a false contrast
with respect to violence, pointing to the fight between Cabrera
and Doe's brother that left the brother severely injured. The
facts surrounding that encounter are disputed, with Cabrera
- 37 -
Fey, where we vacated the associational condition, there is no
basis in the record for concluding that Cabrera "is a danger to
[his] children," irrespective of gender. 834 F.3d at 5.16
As we explained in both Del Valle-Cruz and Fey, because
impairment of "a defendant's relationship with his child
involve[s] a very significant deprivation of liberty, [it]
require[s] a greater justification." Del Valle-Cruz, 785 F.3d at
62 (emphasis added). Where, as here, no justification at all is
given, and the record reveals none, condition three must be vacated
insofar as it applies to both of his children. To be clear, we
are not foreclosing the district court from restricting Cabrera's
interactions with his daughter or son under 18 U.S.C. § 3583(d),
which gives courts the discretion to order conditions of supervised
release that meet the statute's specified requirements.17 However,
maintaining that he acted in self-defense. At the sentencing
hearing, defense counsel reported that Cabrera also was wounded
and received treatment at a hospital. Although the district court
found the severity of the brother's injuries "troublesome," it
also noted "that probably there could be an argument of self
defense." Whatever the full story, this isolated incident is a
far cry from Pabon's "history of beating up women" and "inability
to control his anger." 819 F.3d at 33.
16The dissent suggests that condition three is an appropriate
protection for Cabrera's daughter because she will turn
sixteen -- Doe's age when Cabrera engaged in sexually explicit
communications with her -- during Cabrera's supervised release
term. However, given the obvious differences in the two
relationships, it is not apparent how Cabrera's interactions with
Doe support limiting his parental rights.
17Section 3583(d) states, in pertinent part, that the court
may order any "condition it considers to be appropriate" to the
- 38 -
any such restrictions imposed on remand must be explained and
supported by the record.18
III.
For the reasons given above, we dismiss Cabrera's appeal
of his terms of imprisonment and supervised release, and of the
first, second, fourth, fifth, and sixth conditions of supervised
release. We vacate the third condition of supervised release, and
remand to the district court for reconsideration of that condition.
So ordered.
extent that the condition, inter alia, "involves no greater
deprivation of liberty than is reasonably necessary for the
purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and
(a)(2)(D)." Those subsections of § 3553(a)(2) refer to
the need for the sentence imposed . . .
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) 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).
18Although we do not minimize the burdens on trial judges in
this circuit, who often have exceptionally heavy criminal dockets,
we note a continuing pattern of constitutionally significant
associational conditions imposed with little or no explanation.
We urge district courts to alter that practice by giving "reasoned
and case-specific explanation[s]" for the conditions they impose.
Perazza–Mercado, 553 F.3d at 78 (quoting Gilman, 478 F.3d at 446).
Such explanations are not only required by statute, see 18 U.S.C.
§ 3553(c), but they also enhance appellate review. See, e.g., Del
Valle-Cruz, 785 F.3d at 58.
- 39 -
-Concurring and Dissenting Opinions Follow-
- 40 -
TORRUELLA, Circuit Judge, concurring. I join the
court's opinion but write separately to express my concern with
the path that this Court's precedents have taken with regard to
enforcing appellate waivers when the district court imposes a
sentence with a term of supervised release exceeding that which
was expressly contemplated in the "Sentencing Recommendation"
provision of a plea agreement. Where the parties specifically
included some terms of a "sentence" -- which this Court has held
includes any period of incarceration and any subsequent term of
supervised release, Santiago, 769 F.3d at 7 -- but omitted others,19
it must be presumed that they acted intentionally and purposefully
in that inclusion and exclusion. Cf. Dean v. United States, 556
U.S. 568, 573 (2009) (stating that Congress's inclusion of
particular language in a statute but omission of that language in
another section of the same Act is presumed intentional (citing
Russello v. United States, 464 U.S. 16, 23 (1983))). The district
court's imposition of additional restraints on a defendant's
liberty beyond those delineated in a plea agreement renders the
resultant sentence not "in accordance with the terms and conditions
19
As the court's opinion has aptly and correctly noted, when
facing a mandatory minimum term of supervised release, the parties
cannot contractually void that statutory minimum by failing to
reference it in the sentencing recommendation of a plea agreement.
In such cases, a term of supervised release is necessarily
incorporated into the plea agreement and is precluded from appeal
by an enforceable appellate waiver. See Rojas, 780 F.3d at 69.
- 41 -
set forth in the Sentence Recommendation provisions of [that] plea
agreement." Thus, upholding appellate waivers in such
circumstances violates the essential contract law principles
governing our interpretation of plea agreements. See United States
v. Bermúdez, 407 F.3d 536, 540 (1st Cir. 2005) (citing United
States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995)).
More simply put, when a defendant is sentenced to a term
of supervised release beyond that for which he has bargained, the
waiver of appeal provision of the plea agreement should not be
triggered. Moving forward, I encourage parties to a plea agreement
to clearly delineate the terms of the "sentence" that they seek
the district court to impose. Should the parties wish to leave
the duration of a term of supervised release to the discretion of
the district court, it would not be overly burdensome for them to
state as much in their proposed sentencing recommendation.
- 42 -
LYNCH, Circuit Judge, dissenting. With great respect
for my colleagues in the majority, I fear this opinion will make
it more difficult for courts to impose conditions of supervised
release meant to protect the families, and particularly the minor
daughters, of convicted sex offenders (who here had preyed on a
minor female) and to monitor such offenders better. The district
court was clearly worried that Cabrera would engage in illegal
activities with minors while out on supervised release, and with
good reason given the facts of this case. And while the majority
says it wishes to protect the defendant's rights, it does so by
ignoring the equal rights of his wife and children.
I agree that the length of the sentence must be affirmed
but strongly disagree that the imposition of condition three is a
"miscarriage of justice" under United States v. Teeter, 257 F.3d
14 (1st Cir. 2001), and so is not covered by the waiver of appeal.
The majority, in my view, departs from binding circuit
law in every step of its miscarriage analysis. The majority then
relies on waived and meritless arguments to find that the
imposition of condition three was plain error.20
20 There is a question whether the district court in fact
intended condition three to apply to contact with Cabrera's
children. We often remand for clarification and do not need to
find a miscarriage of justice to reach that result. See, e.g.,
United States v. Cunningham, 201 F.3d 20, 26 (1st Cir. 2000). The
majority did not take the option of remanding for clarification as
to condition three without deciding the miscarriage of justice
- 43 -
A. Miscarriage of Justice
In my view, the majority opinion is barred by circuit
precedent from concluding that a miscarriage of justice is caused
by condition three.21 A finding of miscarriage of justice "is
meant only for 'egregious cases' and is to be applied 'sparingly
and without undue generosity.'" United States v. Santiago, 769
F.3d 1, 8 (1st Cir. 2014) (quoting Sotirion v. United States, 617
F.3d 27, 36 (1st Cir. 2010)). There is no egregious error in
condition three. The majority says that the miscarriage of justice
issue. For the purposes of this dissent, I will read condition
three as the majority does.
21 I agree with the majority that the waiver covers the
term and conditions of supervised release, but I do not join its
suggestion that a waiver of appeal may not extend to a term of
supervised release where that term is left to the court's
discretion by the plea agreement. That argument is foreclosed by
our case law. United States v. Vélez-Luciano, 814 F.3d 553, 558
(1st Cir. 2016) ("We have repeatedly 'ha[d] no trouble concluding
that the word "sentence" in [a plea agreement's] waiver
encompasse[d] every component of the sentence, including the term
of supervised release and its attendant conditions, thus bringing
the instant action within the waiver's reach.'" (alterations in
original) (quoting United States v. Santiago, 796 F.3d 1, 7 (1st
Cir. 2014))); United States v. Rojas, 780 F.3d 68, 69 (1st Cir.
2015). Our law is also clear that a waiver of appeal extends to
conditions of supervised release even where a plea agreement does
not specify a term of supervised release. See United States v.
Rivera-López, 736 F.3d 633, 634, 636 (1st Cir. 2013) (applying a
waiver to a condition of supervised release where there was no
mandatory term of supervised release and supervised release was
not part of the sentence recommendation); see also Santiago, 769
F.3d at 7. Cabrera has waived the right to appeal "the judgment
and sentence," which, given the comprehensiveness of that phrase,
is meant to include every component of the sentence imposed by the
district court. See United States v. Brown, 235 F.3d 2, 4 (1st
Cir. 2000).
- 44 -
standard is met because of the combination of the defendant's
significant liberty interest and the lack of a specific
justification for the condition from the district court. I
disagree on both points.
As to the first, the majority focuses on Cabrera's
parental rights to the detriment of the rights of his daughter
(and son), and of his common law wife, who may want to use Probation
to express their views as to any further contact between the
defendant and his children when he is released after nine years.
The majority and United States v. Del Valle-Cruz, 785 F.3d 48 (1st
Cir. 2015), cite Quillon v. Walcott, 434 U.S. 246 (1978), for the
proposition that "the relationship between parent and child is
constitutionally protected." Id. at 255. That right does not
accrue only to fathers; mothers and children have rights in that
relationship as well. Id. Because of the rights of the other
family members and the grave risk that Cabrera presents, the
involvement of a probation officer, who can ask these other family
members their views as to whether such contact is warranted at the
time, can hardly be a miscarriage of justice. The majority
concedes that the well-being of Cabrera's wife and children is a
relevant consideration when evaluating condition three, but gives
that factor insufficient weight. Given the details and severity
of Cabrera's conduct as found by the district court, the necessity
- 45 -
of condition three for the well-being of Cabrera's children is
clear.
We do not need to even infer the district court's reasons
for imposing condition three, as it made those concerns explicit.
The court was concerned about the risk of illegal actions by the
defendant while on supervised release and explicitly raised the
subject. The court warned Cabrera that he must realize that he
could not "engage in the type of actions in which he engaged" and
could not take advantage of people with learning disabilities.
And in response to an alleged threat from him against
the victim and her family, the district court said the following:
I will not be considering the issue of the
threat [for the purposes of sentencing],
though I warn this defendant that if anything
happens to the family of this minor or to the
minor during the time of, let's say your
supervised release or any point afterwards,
from the police perspective you will be the
first suspect.
(emphasis added).
The district court later said:
And the period of supervised release will be
a significant one. In essence it will get to
a point where if you do it right, if you
restructure your life, if you don't give the
Probation Officer any reason to believe that
you are engaging in any similar action or in
any other type of illegal action they will
place you in minimal supervision. But if you
- 46 -
set a different course in life, then they will
be able to act.22
(emphasis added). So the district court wanted Probation involved
to monitor the defendant on supervised release and said so.
Even if the district court had not been explicit, the
reason for condition three is easy to infer. United States v.
Vélez-Luciano, 814 F.3d 553, 559 (1st Cir. 2016) (citation
omitted). Condition three is justified by the severity,
deceitfulness, and sophistication of Cabrera's offense, as found
by the district court.23 Cabrera took advantage of the victim Jane
22 The majority claims that "[t]he court did not reject
out-of-hand" the more favorable inferences urged by defense
counsel. But the district court never credited defense counsel's
depiction of Cabrera's conduct. The district court never adopted
defense counsel's argument that "this is not one of those people
who pr[e]ys on young women for the purpose of committing sexual
offenses." The district court also never agreed with defense
counsel that "[t]his is just one of those cases of misjudgment of
what the law is . . . ." Rather, the district court found that,
even if Cabrera had somehow been unaware that his behavior was
illegal, he was put on notice when one of his coworkers warned
him. The district court's findings that Cabrera is a first-time
offender, that he had been in a long-term relationship with the
mother of his children, and that relatives and neighbors had
submitted letters on his behalf do not undermine the rationale for
condition three.
23 I quote from the district court's statement at
sentencing:
The Court also takes into consideration the
circumstances surrounding the offense and it
seems that in terms of the commission of the
offense there is no doubt one, that the
defendant knew that the victim was a minor.
Two, based on the admissions made by the
defendant at the time of the interview, he had
been in continuous communications with the
- 47 -
Doe's vulnerabilities in order to use her for his sexual purposes.
He knew she was receiving psychological treatment, and she was
enrolled in a special education program due to learning
disabilities. Cabrera first met the victim when she was twelve.
He obviously knew that the victim was just sixteen when his
grooming efforts succeeded.
Cabrera taught the victim how to download the
application she used to send him images of herself and how to use
a mobile phone camera self-timer so that she could "take pictures
touching herself or in certain positions." Cabrera called the
victim "everyday requesting pictures," and convinced her to send
him "58-59 images depicting explicit sexual conduct as requested
by him." He showed these images to his coworkers, and continued
minor since around the summer of 2012 and
actually he also knew that she was receiving
psychological therapy, though he didn't know
the reason. And actually he admitted that he
was the one that explained and instructed the
minor how to download the "text now"
application and how to communicate via text
and how to up-load the images she was taking
at his request. In addition to that it seems
that, and based on the statement that is
appear [sic] here, that Mr. Cabrera at
different times showed the images to the
coworkers. That is stated specifically at
paragraph 17, and got my attention that even
if he didn't know it was illegal at that point
in time, the person that looked at it based on
his statements, actually told him that he was
getting into problems. This after he was
showing those pictures at the workplace.
- 48 -
this behavior even after one of his coworkers warned him that he
could get into trouble.
Throughout his misconduct, Cabrera "transferred images
via Bluetooth to his prepaid cell phone," which he had at his
sister's house so that he could keep the images and reduce the
risk of detection. He regularly deleted the texting application
he used to communicate with the victim to make sure that the images
were removed from his primary cell phone, and so were hidden from
his wife.
In light of these facts, the Presentence Investigation
Report ("PSR") recommended, and the district court adopted, a host
of conditions limiting Cabrera's contact with minors subject to
Probation's approval. Cabrera is forbidden from "participat[ing]
in any volunteer activity . . . that would bring him in close
contact with a child unless" he gets prior approval from Probation;
"work[ing] with children under the age of 18 or hold[ing] a job
that gives him authority over potential victims" and obtaining
employment without Probation's approval; and "hav[ing] . . .
personal contact with . . . minors under the age of 18 . . . unless
approved in advance by the Probation Officer" with an exception
for incidental contact and contact with his relatives. The
majority agrees that these conditions are not miscarriages of
justice, but wants to create a special rule allowing Cabrera to
reside with his children without Probation's involvement. Such a
- 49 -
rule is unjustified given the evidence in the record, the findings
of the district court, and the reasons I have stated.
Cabrera's daughter will turn sixteen -- Doe's age at the
time of Cabrera's offense -- during Cabrera's term of supervised
release. Cabrera's predatory behavior toward the victim in this
case and his ability to hide his behavior from his wife make
condition three a sensible means of protecting Cabrera's children,
especially his daughter. That protection is not a miscarriage of
justice. See Vélez-Luciano, 814 F.3d at 563.
In response to all of this, the majority turns to Del
Valle-Cruz to argue that more of an explanation was required before
condition three was imposed. But the defendant in that case was
less of a danger to his children than Cabrera is. Del Valle-Cruz
had committed sexual misconduct eighteen years before his failure-
to-register conviction -- which is not a sex offense -- and "ha[d]
taken affirmative steps to turn his life around" apart from that.
Del Valle-Cruz, 785 F.3d at 60-61. There is no eighteen-year
period of good behavior here. Cabrera is being sentenced for a
serious sex offense, the disturbing details of which warrant
condition three.
Del Valle-Cruz is also unhelpful to the majority because
it is a SORNA failure-to-register case. In order to determine
whether the associational restrictions were justified in SORNA
failure-to-register cases, this court searches for recent sexual
- 50 -
misconduct and violent behavior because "[s]uch restrictions
operate to protect the public, especially children, from the
defendant," United States v. Pabon, 819 F.3d 26, 31 (1st Cir.
2016), and past sex offenses demonstrate the need for such
protection. Because failure to register as a sex offender is not
itself a sex offense, courts look for sexual misconduct in the
recent past in order to determine whether the defendant presents
a danger to his children. See id.; Del Valle-Cruz, 785 F.3d at
60. Such an inquiry is unnecessary where, as here, the nature and
details of a defendant's offense demonstrate the need for an
associational restriction.24 See Pabon, 819 F.3d at 31.
Condition three does not even bar Cabrera from residing
or being alone with his children. It merely requires that Cabrera
get approval from Probation beforehand. Probation would make that
determination based on several factors, including "the defendant's
placement in the sex offender risk assessment tools" and "the
recommendation of the psychosexual treatment provider." Access to
biological parents may be granted "once a third party risk
assessment has been conducted with the custodial parent or legal
24 The majority argues that I am applying a "categorical
approach" to determine that condition three was justified. That
is inaccurate. I am not arguing that any sex offense is sufficient
to justify any condition of supervised release limiting contact
with a defendant's minor children. Rather, my point is that the
severity and details of Cabrera's offense justify the imposition
of condition three such that the imposition can hardly be a
miscarriage of justice or plain error.
- 51 -
guardian." We upheld this type of condition in United States v.
Mercado, 777 F.3d 532 (1st Cir. 2015), reasoning that the
conditions were "sufficiently circumscribed" because the defendant
was still permitted to contact his minor children with pre-approval
from his probation officer. Id. at 539. As in Mercado, Cabrera
would have legal recourse if Probation kept him from his children
without good reason.25 Id.
B. The Correct Standard of Appellate Review Precludes the
Majority's Analysis
Cabrera waived plain error review by not making any
effort in his principal brief to explain why condition three failed
under even that standard. See Pabon, 819 F.3d at 33. In Pabon,
the court found that a plain error challenge failed because
"[a]lthough [the defendant] argues that the district court has
erred in numerous ways, he does not anywhere cite the four-factor
test or attempt to establish its latter three factors." Id. at
34.
25 The majority asserts that we are departing from Del
Valle-Cruz by taking note of the fact that condition three does
not prohibit Cabrera outright from contacting his children. But
Mercado, decided in February 2015, tells us that it is
"important[]" whether a condition serves as an outright ban or
merely "require[s] that his association with his children be pre-
approved by the probation officer . . . ." 777 F.3d at 539. Del
Valle-Cruz, decided in April 2015, did not overrule Mercado on
this point, nor could it. It instead distinguished the case on
the facts. See Del Valle-Cruz, 785 F.3d at 61.
- 52 -
Cabrera has similar failings. His principal brief did
not cite plain error cases, it did not couch its argument in the
plain error terminology, and it did not even reference the plain
error standard. Cabrera's brief does not mention Pabon -- the key
case for determining whether Cabrera's sentence was plainly
erroneous under this circuit's case law. Cabrera "le[ft] the court
to do counsel's work, create the ossature for the argument, and
put flesh on its bones." United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990). He waived his plain error argument by doing so.
The majority attempts to avoid the waiver by arguing
that the difference between the miscarriage of justice standard
and the plain error standard is blurry, and so it does not make
sense find that the plain error argument has been waived where a
party has made a miscarriage of justice argument. The fact that
information relevant to the four prongs of the plain error standard
was present in the principal brief does not preserve an unmade
plain error argument.
The court's holding here adds to whatever confusion
already existed by making a broad pronouncement about the
similarity between two standards. This conclusion is particularly
inappropriate because there was no briefing on the similarities
and differences between the two standards.26
26 The majority also argues that Pabon "did not address
such claims in the context of an appellate waiver." That is true,
- 53 -
The majority's analysis of the merits of the plain error
challenge is also, in my view, incorrect. The second, third, and
fourth prongs of plain error review are clearly absent for the
reasons already explained and under our precedent. When faced
with a similar condition, this court found that "at least two
courts of appeals have held that a prior sex offense against a
minor is sufficient to justify similar associational conditions,
even where the record did not include particularized findings."
Pabon, 819 F.3d at 34. From this, the court in Pabon reasoned
that "[w]here, as here, there is no controlling authority or
clearly established legal norm, and other circuits have differing
views, we think that the issue is, at best, one of reasonable
dispute. Thus there is no clear or obvious error." Id. There is
still no controlling authority on this issue, so there is no plain
error.
The majority attempts to distinguish Pabon, but is
unsuccessful. The majority argues that "Cabrera's crime did not
involve a girl below the applicable age of consent and did not
take place at a domestic partner's home," and "any physical
relationship he had with Doe would not itself have been unlawful."
but irrelevant. Once the majority reaches plain error review, the
appellate waiver is already out of the picture, and we need to
address the arguments for why the district court plainly erred.
Here, Cabrera has not made a plain error argument and that should
have ended this appeal.
- 54 -
As I explained above, there is ample evidence in the record showing
that Cabrera presents a danger to his children.27 The case for the
restriction is even stronger here because, unlike Pabon, Cabrera
is being sentenced for a sex offense.
27 The majority also states that Cabrera's situation is
different because "unlike the defendant in Pabon -- who had
'violent inclinations' -- Cabrera's PSR depicts him as a stable
and supportive father and domestic partner." (citation omitted).
Cabrera may have been a supportive father to his two-year-old son,
but he was arrested before the birth of his daughter so there can
be no history as to the daughter. Similarly, the record does not
say that Cabrera is without "violent inclinations." The PSR and
testimony at sentencing indicate that, when confronted by Doe's
brother about his behavior, Cabrera beat him with a blunt object.
The victim's parents stated that the injuries to Doe's brother
required hospitalization and two head surgeries. The district
court did not determine who started the fight and said that, "even
in a fight there are times in which a person has to put a stop to
the amount of damage that he is able to cause. I find that
troublesome." Contrary to the majority's view, the PSR and
district court's findings about Cabrera's deceitful behavior
toward the mother of his children does not square with him being
a "supportive . . . domestic partner." Pressuring a sixteen-year-
old with a learning disability and emotional issues to send him
naked pictures is not a "stable" thing to do.
- 55 -
United States v. Cabrera-Rivera
Court: Court of Appeals for the First Circuit
Date filed: 2018-06-20
Citations: 893 F.3d 14
Copy CitationsCombined Opinion