United States v. Pabon, Jr. , 819 F.3d 26 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1850
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS E. PABON, JR.,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Lisa Aidlin for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
April 8, 2016
HOWARD, Chief Judge. Luis Pabon appeals his sentence
for failing to register as a sex offender in violation of the Sex
Offender Registration and Notification Act (SORNA), 18 U.S.C.
§ 2250(a). The district court sentenced Pabon, inter alia, to
five years of supervised release with special conditions. The
conditions require Pabon to participate in a sex offender treatment
program and submit to polygraph testing. They also restrict his
association with minors. Pabon alleges that these conditions are
unreasonable and violate 18 U.S.C. § 3583(d). On appeal, Pabon
also raises several other constitutional and statutory challenges
for the first time.
In light of Pabon's substantial criminal history and the
district court's ample explanation for the conditions imposed, we
hold that the court did not exceed its sentencing discretion under
18 U.S.C. § 3583(d). Further, a number of Pabon's claims were not
preserved and, moreover, have been waived on appeal because he has
made no attempt to satisfy the four-part plain error burden. See,
e.g., United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005)
(en banc). In any event, even if those claims are only forfeited,
the district court's sentence, properly construed, does not amount
to plain error. Thus we affirm the sentence as construed.
I. Background
In 2011, Pabon pled guilty to violating the registration
requirements of SORNA. Pabon was required to register because he
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had been convicted in 2008 of second-degree child molestation for
sexually molesting the fourteen-year-old daughter of his then-
girlfriend. The district court sentenced Pabon to thirty months
in prison and five years of supervised release1 with special
conditions, including:2
(1) Sex offender treatment condition:
"participate in a sex offender specific
treatment program as directed by the probation
officer";
(2) Polygraph test condition: "participate in
testing in the form of polygraphs or any other
methodology approved by the Court in order to
measure compliance with the conditions of
treatment and supervised release";
(3) Contact condition: "have no contact with
any child under the age of 18 without the
presence of an adult who is aware of the
defendant's criminal history and is approved,
in advance, by the probation officer";
4) Residence condition: "live at a residence
approved by the probation office, and not
reside with anyone under the age of 18, unless
approved, in advance, by the probation
office";
(5) Loitering condition: "not loiter in areas
where children congregate," including but not
limited to "schools, daycare centers,
playgrounds, arcades, amusement parks,
recreation parks and youth sporting events";
and
1 Originally, the district court had imposed ten years of
supervised release. Pabon appealed that sentence, and in light of
a recent Seventh Circuit case, United States v. Goodwin, 717 F.3d
511 (7th Cir. 2013), the United States agreed that the ten-year
term was error. We remanded. See United States v. Pabon, No. 11-
2005 (1st Cir. Oct. 1, 2013) (unpublished order). At resentencing,
the district court reduced the supervised release term to five
years.
2 The district court also required Pabon to participate in a
mental health treatment program and to comply with sex offender
registration laws. Pabon does not appeal these conditions.
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(6) Employment condition: "not be employed in
any occupation, business, or profession or
participate in any volunteer activity where
there is access to children under the age of
18, unless authorized, in advance, by the
probation officer."
Pabon's counsel objected to these conditions as unreasonable in
violation of 18 U.S.C. § 3583(d). Notwithstanding, the district
court imposed the conditions, finding that they were reasonably
necessary to achieve deterrence, incapacitation, and
rehabilitation in light of Pabon's profuse criminal history. That
history includes the underlying sex offense conviction, four
assault convictions (two within the past ten years), and another
SORNA violation just months after the sex offense conviction.
Pabon timely appealed.3 On appeal, he continues to
challenge the conditions as unreasonable, in violation of 18 U.S.C.
§ 3583(d). He asserts that they restrict his liberty more than
reasonably necessary to accomplish the goals of sentencing, that
the district court failed to provide an adequate explanation for
them, and that they are unsupported by the record. In addition,
he raises several new arguments. He asserts that the conditions
impermissibly delegate authority to a probation officer in
3 We note that although Pabon agreed to an appeal waiver, the
government has expressly declined to rely on the waiver. See Gov't
Br. 8 ("It is easier to resolve the appeal on the merits, however,
so the Court should bypass [the waiver] argument."). We have the
discretion to proceed to the merits. United States v. Carrasco-
De-Jesús, 589 F.3d 22, 26 n.1 (1st Cir. 2009).
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violation of Article III of the Constitution, that the
associational conditions unconstitutionally infringe his right to
associate with his minor daughter, that the employment condition
violates 18 U.S.C. § 3563(b)(5) and U.S.S.G. § 5F1.5, and that the
polygraph test condition is inherently unreliable and violates the
Fifth Amendment privilege against self-incrimination.
II. Reasonableness
We hold that the conditions are reasonable under 18
U.S.C. § 3583(d). Because Pabon properly preserved these
challenges below, we review for abuse of discretion. United States
v. Mercado, 777 F.3d 532, 537 (1st Cir. 2015).
In assessing the validity of the conditions of
supervised release, we apply 18 U.S.C.
§ 3583(d) and U.S.S.G. § 5D1.3(b), which
require that special conditions cause no
greater deprivation of liberty than is
reasonably necessary to achieve the goals of
supervised release, and that the conditions be
reasonably related both to these goals and to
the nature and circumstances of the offense
and the history and characteristics of the
defendant.
United States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015)
(internal formatting and citation omitted). These goals include
"the need to deter the defendant from further criminal conduct;
the need to protect the public from further crimes by the
defendant; and the effective educational, vocational, medical, or
other correctional treatment of the defendant." United States v.
York, 357 F.3d 14, 20 (1st Cir. 2004) (citing U.S.S.G.
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§ 5D1.3(b)(1); 18 U.S.C. § 3583(d)(1)); see also 18 U.S.C. §
3553(a)(2)(B)-(D). "The critical test is whether the challenged
condition is sufficiently related to one or more of the permissible
goals of supervised release, and the fact that a condition of
supervised release is not directly related to the crime of
conviction does not render that condition per se invalid." United
States v. Sebastian, 612 F.3d 47, 50 (1st Cir. 2010) (quoting York,
357 F.3d at 20) (some internal formatting omitted). The condition
imposed must also be "consistent with any pertinent policy
statements from the Sentencing Commission." York, 357 F.3d at 20
(citing U.S.S.G. § 5D1.3(b)(2)).
In addition, the district court is "required to provide
a reasoned and case-specific explanation for the conditions it
imposes." Del Valle-Cruz, 785 F.3d at 58 (internal quotation marks
and citations omitted). Not only does such an explanation
facilitate appellate review, but the statute also requires it.
Id. (quoting 18 U.S.C. § 3553(c)). Nevertheless, even absent an
adequate explanation by the district court, we may infer the
court's reasoning from the record. Id. at 58-59. In all cases,
however, the sentence must find "adequate evidentiary support in
the record." Id. at 58.
Applying the above principles, we have found sex
offender treatment conditions a reasonable means of enabling
defendants to "manage their impulses and . . . reduce recidivism."
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United States v. Morales-Cruz, 712 F.3d 71, 75 (1st Cir. 2013)
(quoting McKune v. Lile, 536 U.S. 24, 33 (2002)); see also Mercado,
777 F.3d at 538 (sex offender treatment condition "is reasonably
related to rehabilitation and protecting the public"). For sex
offenders, that risk of recidivism is "frightening and high."
Sebastian, 612 F.3d at 51 (quoting Smith v. Doe, 538 U.S. 84, 105
(2003)) (internal quotation marks omitted). Moreover, subsequent
criminal conduct, whether or not of a sexual nature, indicates an
enhanced risk of recidivism. See Mercado, 777 F.3d at 539;
Morales-Cruz, 712 F.3d at 75; York, 357 F.3d at 21. Thus a sex
offender treatment condition may be reasonable even where the
present offense is not sexual in nature. See Mercado, 777 F.3d at
538.
Accordingly, we have upheld sex offender treatment
conditions -- despite the conviction not being a sex offense --
where the defendant committed a prior sex offense in recent years,
see York, 357 F.3d at 20-21, or where the intervening time between
a distant sex offense and the present conviction is marked by
substantial criminal activity, see Mercado, 777 F.3d at 537-38;
Morales-Cruz, 712 F.3d at 74-76; Sebastian, 612 F.3 at 50-51. More
generally, even when a defendant has not previously committed a
sex offense, a sex offender treatment condition may be proper if
the defendant has otherwise exhibited an enhanced risk of sexual
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misconduct. See United States v. Prochner, 417 F.3d 54, 63-64
(1st Cir. 2005).
Our analyses of restrictions on association with minors
have followed an analogous approach. Such restrictions operate to
protect the public, especially children, from the defendant, see
United States v. Santiago, 769 F.3d 1, 9 (1st Cir. 2014); United
States v. Smith, 436 F.3d 307, 312 (1st Cir. 2006), as well as to
promote the defendant's rehabilitation. See Mercado, 777 F.3d at
538; Prochner, 417 F.3d at 64. Similar to sex offender treatment
conditions, associational conditions may be proper where the
defendant has recently committed a sex offense against a minor, or
where the intervening time between a prior sex offense and the
present conviction is marked by substantial criminal activity, see
Mercado, 777 F.3d at 538-39; Santiago, 769 F.3d at 9, or where the
defendant's conduct otherwise indicates an enhanced risk to
minors, see Prochner, 417 F.3d at 64-65; Smith, 436 F.3d at 311-
12. By contrast, we have vacated associational conditions where
the defendant's prior sex offense occurred in the distant past,
the intervening time was marked by lawful social activity, and the
district court did not otherwise explain the need for such
restrictions. See Del Valle-Cruz, 785 F.3d at 59-64.
In addition, our cases upholding associational
conditions have emphasized a key limitation. Generally, such
conditions are "sufficiently circumscribed" when they do not place
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an outright ban on association with minors, but only curtail
association, such as by requiring pre-approval by the probation
officer or another authority, see Mercado, 777 F.3d at 539;
Santiago, 769 F.3d at 6; Smith, 346 F.3d at 312, or by operating
in limited contexts, see Prochner, 417 F.3d at 64-65 (upholding
condition prohibiting "unsupervised contact" with minors and
"direct supervision" of minors). 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
Mercado, 777 F.3d at 539 (citing 18 U.S.C. § 3583(e)(2); Fed. R.
Crim. P. 32.1 advisory committee's note); Prochner, 417 F.3d at 65
n.8.4
Recently, we applied the above principles in two SORNA
sentencing cases. Del Valle-Cruz, 785 F.3d 48; Mercado, 777 F.3d
532. In both cases, as here, the defendant failed to register in
violation of SORNA, and the district court imposed a sentence of
incarceration followed by supervised release with special
conditions. See Del Valle-Cruz, 785 F.3d at 53-54; Mercado, 777
F.3d at 534-35. As here, the special conditions included a sex
offender treatment program with polygraph testing, and no
4
In noting this limitation, we do not decide that an absolute
ban on association would be error under similar circumstances. It
suffices that we do not face a scenario here involving such a ban.
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contacting, residing, working, or volunteering with minors without
advance approval by the probation officer. The Mercado panel
affirmed the sentence, finding the conditions adequately supported
by the district court's findings and the defendant's criminal
history, including a prior sex offense conviction that occurred
some ten years prior and substantial criminal activity in the
intervening time. See 777 F.3d at 537-39.
By contrast, Del Valle-Cruz vacated the contact and
residence restrictions. 785 F.3d at 52. In doing so, we
emphasized two key distinctions from Mercado and other cases.
First, the defendant's criminal history was notably less. His
sole prior sex offense conviction had occurred fifteen years
earlier. See id. at 61-62. And he had not committed any crimes
for nearly a decade prior to the present conviction but had pursued
a college degree and, at the time of his arrest, worked two jobs.
See id. Second, the district judge "offered no explanation
whatsoever for the conditions imposed." Id. at 61. And in light
of the defendant's sparse criminal history, the panel did not find
the conditions adequately supported by the record. See id. at 62.
Pabon's case is similar to Mercado and unlike Del Valle-
Cruz. He has a copious criminal history and received a clear
explanation for the conditions imposed. As for his criminal
history, in 2005, he repeatedly molested the fourteen-year-old
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daughter of his then-girlfriend in her mother's home.5 He was
convicted in 2008, less than three years before the present
conviction. Not only was this offense close in time to the SORNA
violation, but it also involved a prolonged sexual relationship
with a minor over whom he was in a position of apparent trust and
authority. This grave offense warranted an eight-year prison
sentence. That seven of those years were suspended does not
detract from the gravity of the crime. See Sebastian, 612 F.3d at
51.
Moreover, Pabon has accumulated a staggering array of
other convictions. At the time of sentencing, he had committed
enough criminal activity to put him in the highest criminal history
category (VI) under the sentencing guidelines. As previously
noted, among his convictions were four for assault, with two in
the last ten years, and a prior SORNA violation mere months after
his sex offense conviction.
Against the backdrop of this substantial criminal
history, the district court explained the rationale for imposing
the conditions. The court found that the conditions were necessary
in order to keep the public safe, and especially to protect minors
5The uncontested facts from the presentence investigation
report show that Pabon molested the minor "on numerous occasions"
in her mother's home. He evaded the mother's notice by molesting
the minor only when the mother was in a different part of the
house. In addition, Pabon and the minor exchanged furtive letters
that were replete with sexual references.
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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. Moreover, the court
also found that the conditions would facilitate Pabon's
rehabilitation, noting that Pabon's demons would not just go away
by themselves.
In addition, the district court did not ban Pabon's
association with minors, but instead required prior approval by
the probation officer. This diminishes the deprivation of Pabon's
liberty, for "[t]here is no basis for believing that the probation
officer will unreasonably withhold permission." Mercado, 777 F.3d
at 539. And in the event that the officer denies permission
unreasonably, Pabon may petition the district court for redress.
See id.; 18 U.S.C. § 3583(e)(2).
In sum, the district court adequately justified the
sentence in relation to the goals of sentencing and Pabon's
offense, history, and characteristics. It also properly limited
the conditions so as not to deprive more liberty than necessary to
achieve the sentencing goals. The court acted well within its
discretion.
III. Remaining Challenges
At most, we review the remainder of Pabon's challenges
for plain error. Pabon has waived these challenges because he has
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not even attempted to meet his four-part burden for forfeited
claims under United States v. Padilla, 415 F.3d 211, 218 (1st Cir.
2005) (en banc). In any event, the district court did not commit
plain error. Most of Pabon's claims are foreclosed by precedent.
Of the three claims that are not, one fails on the second prong of
the plain error test. The other two assume improper constructions
of the conditions, and we note the correct constructions.
Under the plain error doctrine, "[i]f an error is not
properly preserved, appellate-court authority to remedy the error
. . . is strictly circumscribed." Puckett v. United States, 556
U.S. 129, 134 (2009); see also Padilla, 415 F.3d at 218 ("the plain
error test constitutes a mandatory limitation on a federal
appellate court's remedial authority"). "[A] reviewing court may
set aside a challenged portion of a criminal sentence if, and only
if, the appellant succeeds in showing (1) that an error occurred
(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Padilla, 415 F.3d at 218 (internal quotation marks
omitted). The party asserting plain error bears the burden of
persuasion. Id.
Measured against this familiar rubric, Pabon has waived
review of his forfeited claims because he does not even attempt to
meet the four-part test. It is well established that "issues
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adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Although Pabon 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. Even after the government pointed this
deficiency out to Pabon in its briefing, Pabon still failed to
address the Padilla factors in his reply brief. Having failed to
do so, Pabon has waived these claims.
In any event, there was no plain error. We have
previously rejected similar challenges on plain error review. See
Mercado, 777 F.3d at 536-37 (rejecting Article III challenge to
delegation of authority to a probation officer); id. at 539
(rejecting freedom of association challenge to associational
conditions); Prochner, 417 F.3d at 65 (rejecting 18 U.S.C. §
3563(b)(5) and U.S.S.G. § 5F1.5 challenge to employment
condition); York, 357 F.3d at 23 (rejecting inherent unreliability
challenge to polygraph test condition).
Pabon's most plausible challenge is that the district
court failed to make sufficient findings justifying the
restrictions on association with his minor daughter. Relying
primarily on the Ninth Circuit's decision in United States v. Wolf
Child, 699 F.3d 1082 (9th Cir. 2012), he asserts that the district
court was required to make a particularized finding that he poses
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a danger to his own child, not merely to minors in general. At a
minimum, this challenge falters on the second prong of plain error
review, which requires the asserted error to "be clear or obvious,
rather than subject to reasonable dispute." Puckett, 556 U.S. at
135. While we have held that an infringement of a parent's right
to associate with his child requires "a greater justification,"
Del Valle-Cruz, 785 F.3d at 62, we have never before required the
kind of particularized finding that Pabon asserts is necessary.6
Moreover, 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. See United States v. Rodriguez, 558 F.3d
408, 417 (5th Cir. 2009); United States v. Heidebur, 417 F.3d 1002,
1005 (8th Cir. 2005). Where, 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.
6We recently recognized, in dictum, that whether a
defendant's right to associate with his minor son may be restricted
based on prior sexual misconduct toward minor girls presents
"substantial constitutional questions." United States v. Vélez-
Luciano, __ F.3d __, No. 14-1738, 2016 WL 759876, at *7 (1st Cir.
Feb. 25, 2016). Vélez-Luciano, however, did not decide that
question, and neither do we. In any event, the Vélez-Luciano
dictum is inapposite, as it was based on the fact that sexual
proclivities toward girls do not necessarily indicate sexual
proclivities toward boys. Id. at 21. Here, Pabon, who has a
history of sexual misconduct toward girls, is seeking to associate
with his minor daughter.
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Pabon's two remaining challenges fail given the proper
construction of the district court's order. First, Pabon argues
that the polygraph test condition requires him to answer self-
incriminating questions lest his release be revoked in violation
of his Fifth Amendment privilege against self-incrimination.
Revoking a probationer's release for asserting his Fifth Amendment
rights is plainly unconstitutional. See York, 357 F.3d at 24-25.
However, the condition does not spell out that forbidden penalty,
but merely requires Pabon to participate in polygraph testing.
Thus we do not read the polygraph test condition as also obliging
Pabon to disclose information that may lead to a separate criminal
conviction. See id. at 25 (citing United States v. Davis, 242
F.3d 49, 52 (1st Cir. 2001)).
Second, Pabon claims that the no-contact condition is
overbroad because it prohibits even incidental encounters with
children and practically amounts to house arrest. It takes more
than a stretch to read the condition as one intended to place Pabon
under house arrest, and nothing in the record supports such a
reading. More generally, associational restrictions are usually
read to exclude incidental encounters. See Arciniega v. Freeman,
404 U.S. 4, 4 (1971); accord, e.g., United States v. Shultz, 733
F.3d 616, 622 (6th Cir. 2013); United States v. Soltero, 510 F.3d
858, 866 (9th Cir. 2007); United States v. Johnson, 446 F.3d 272,
281 (2d Cir. 2006); United States v. Loy, 237 F.3d 251, 269 (3d
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Cir. 2001); United States v. Paul, 274 F.3d 155, 166 (5th Cir.
2001). Thus, we read the no-contact condition as only covering
intentional contact.
IV. Conclusion
For the foregoing reasons, we AFFIRM the sentence as
construed.
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