United States v. DaSilva , 844 F.3d 8 ( 2016 )

United States Court of Appeals
For the First Circuit
___________________
No. 15-2103
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO DASILVA,
Defendant, Appellant.
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
_________________
Before
Lynch and Selya, Circuit Judges,
and Burroughs, District Judge.
_________________
Tara I. Allen for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
December 16, 2016

Of the District of Massachusetts, sitting by designation.
BURROUGHS, District Judge. Defendant Fernando DaSilva
pled guilty to failing to register as a sex offender in violation
of the Sex Offender Registration and Notification Act (SORNA), 18
U.S.C. § 2250(a). On appeal, he challenges several of the
conditions of supervised release that the district court imposed
in connection with his sentence, including sex offender treatment
and provisions restricting contact with minors. We hold that the
conditions are reasonable, but remand for further clarification
consistent with this opinion.
I. Background
The defendant plead guilty in 2015 to violating the
registration requirements of SORNA and was sentenced to time
served, as well as five years of supervised release. He admitted
that he was convicted of possession of child pornography by a Rhode
Island state court in 2006, that he was required to register as a
sex offender as a result, and that, in early 2015, he moved from
Pawtucket, Rhode Island to Fall River, Massachusetts without
updating his registration.
The facts related to defendant's 2006 child pornography
conviction are as follows. In November 2005, the defendant's car
was pulled over by police because he was wanted on open warrants
and his driver's license was suspended. A 14-year-old girl was a
passenger in the car. The girl had been reported as missing and
was wanted on a truancy warrant. While searching the car, police
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found two photographs of the girl in which she was nude and
exposing her genital area in a sexually suggestive pose. The
defendant admitted that the photos had been in his possession for
over a week, but claimed that he was not present when they were
taken and had no knowledge of the circumstances around them. He
also said that he did not engage in any sexual conduct with the
girl, even though he had been living with her in his car and at
the homes of friends for a week. The defendant knew the girl had
a truancy warrant. He also said they used crack cocaine together.
He was 35 at the time of the arrest. In March 2006, he pled guilty
to possession of child pornography and driving with a suspended
license. He was sentenced to five years' imprisonment on the
possession charge and a one-year concurrent term on the driving
charge.
The defendant has an extensive criminal record from 1989
through 2005, including convictions for larceny, breaking and
entering with intent to commit a felony, driving a stolen vehicle,
possessing cocaine, possessing a stolen vehicle, receiving stolen
goods, escape by an inmate, possessing a weapon, and obstructing
a police officer. After the defendant was released from prison on
the child pornography conviction, he was additionally convicted of
possessing marijuana (2010), possessing crack cocaine (2011), and
disorderly conduct (2012).
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In September 2015, the district court sentenced the
defendant to time served on the SORNA violation, followed by five
years of supervised release. The court also imposed the following
conditions of release, to which the defendant objects on appeal:
Special condition 5. The defendant shall “participate in sex
offender treatment as directed by the probation officer and, as an
adjunct to that treatment, to submit to periodic polygraph testing
at the discretion of the probation office to ensure that you are
in compliance with the requirements of your supervision and
treatment.”
Special condition 8. The defendant shall “have no contact with any
child under the age of 18, with the exception of your own children,
without the presence of an adult who is aware of your history and
who is approved in advance by the probation officer.”
Special condition 9. The defendant shall not “loiter in areas where
children congregate [including] but not limited to, schools, day
care centers, playgrounds, arcades, amusement parks, recreation
parks, and youth sporting events.”
Special condition 10. The defendant shall 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.”
Special condition 11. The defendant shall “live at a residence
approved by the probation office, and not reside with anyone under
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the age of 18, [with the exception of your own children,]1 unless
approved, in advance, by the probation office.”
The defendant's counsel raised general, somewhat pro
forma objections to the conditions at sentencing. The defendant
now appeals, arguing that the special conditions were not
reasonably related to the defendant's conviction (failing to
register), his history, or the goals of sentencing. He also claims
that the conditions are overbroad and impose a greater deprivation
of liberty than is reasonably necessary.
II. Discussion
“We review conditions of supervised release for abuse of
discretion.” United States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st
Cir. 2015). “The court exceeds its discretion when it fails to
consider a significant factor in its decisional calculus, if it
relies on an improper factor in computing that calculus, or if it
considers all of the appropriate factors but makes a serious
mistake in weighing such factors.” Id. (quoting Colon-Cabrera v.
Esso Standard Oil Co., 723 F.3d 82, 88 (1st Cir. 2013)). To
evaluate the conditions of supervised release, we apply 18 U.S.C.
§ 3583(d) and U.S.S.G § 5D1.3(b), which together require that the
conditions “involve[] no greater deprivation of liberty than is
1 As discussed below, the written judgment omits the “own
children” exception, but the oral decision includes the “own
children” exception.
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reasonably necessary” to achieve the goals of the sentence, 18
U.S.C. § 3583(d)(2), 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. Perazza-Mercado, 553 F.3d 65, 69
(1st Cir. 2009) (quoting 18 U.S.C. § 3583(d)(1) and § 3553(a)(1)).
The district court is required to set forth a “reasoned and case-
specific explanation” for the conditions it imposes. Id. at 75
(quoting United States v. Gilman, 478 F.3d 440, 446 (1st Cir.
2007)).
First, the defendant argues that because his conviction
for child pornography occurred nine years prior to the SORNA
violation, and because he has not been convicted of a sex-related
offense in the intervening years, the district court had
insufficient justification to impose conditions related to the
child pornography conviction.
In two recent cases, we upheld nearly identical
conditions in similar circumstances. United States v. Pabon, 819
F.3d 26 (1st Cir.), cert. denied, 137 S. Ct. 345 (2016); United
States v. Mercado, 777 F.3d 532 (1st Cir. 2015). In Mercado, even
though the underlying sex offense “occurred some ten years prior
to sentencing” for the SORNA violation, “the defendant's
persistent criminal involvement over the intervening years [made]
his earlier offense highly relevant.” 777 F.3d at 538. We also
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recognized that the SORNA violation itself is “a type of lapse
that has been credibly linked to an increased risk of recidivism.”
Id. at 539. And we explained that it was important that the
conditions imposed by the district court did not “comprise an
outright ban on the defendant’s ability to associate (or even live)
with his minor children.” Id. Instead, the conditions required
visits with his own children to be pre-approved by the probation
officer and to take place in the presence of an adult familiar
with his criminal history. Id.
In Pabon, the sex offense conviction occurred only three
years prior to the SORNA conviction, but we explained that
“subsequent criminal conduct, whether or not of a sexual nature,
indicates an enhanced risk of recidivism.” Pabon, 819 F.3d at 29,
31. Further, “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, or
where the defendant's conduct otherwise indicates an enhanced risk
to minors.” Id. at 31 (citations omitted). This is particularly
true when the associational conditions “do not place 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. We also found it relevant to the
reasonableness of the condition that, like here, there was not an
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outright ban on the defendant’s ability to associate with his own
children. Id. at 34.
Mercado and Pabon are consistent with prior caselaw.
See, e.g., United States v. Morales-Cruz, 712 F.3d 71, 73–75 (1st
Cir. 2013) (upholding sex offender-related conditions of
supervised release where underlying sex offense occurred 16 years
prior, as defendant had multiple intervening convictions,
including acts of violence against women, and his “record shows a
pattern of failure to comply with court orders and conditions of
probation imposed for his crimes”); United States v. Sebastian,
612 F.3d 47, 49, 51 (1st Cir. 2010) (upholding sex offender-related
conditions of release on drug conviction where defendant was
convicted of sexual assault eight years prior and “multiple
convictions for drug offenses” indicated defendant had trouble
obeying court orders and thus was likely to reoffend).
In this case, although the defendant’s 2006 child
pornography conviction occurred 10 years ago, he has been convicted
of three more crimes in the intervening years. Further, the
defendant was incarcerated for the first five years after his 2006
conviction, which means that he has committed three crimes in the
five years that he has been free. As Mercado and the other cases
indicate, a 10-year-old sex crime conviction is not so old that it
was unreasonable for the district court to consider it. Combined
with the defendant’s extensive criminal history both before and
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after that conviction, which indicates that he has difficulty
obeying court orders and could have been considered by the district
court as highly likely to reoffend, the district court did not
abuse its discretion in imposing the sex offender-related
conditions. The conditions also do not impose too great an
infringement on his associational rights, as they are less
stringent than those approved in Mercado and Pabon, where the
conditions did not contain exceptions for the defendants’ own
children. Mercado, 777 F.3d at 535; Pabon, 819 F.3d at 29.
The defendant relies heavily on Del Valle-Cruz, which
vacated conditions of release similar to those at issue here,
including sex offender treatment and a prohibition on interaction
with minors. 785 F.3d at 64. The present case is distinguishable
from Del Valle-Cruz in several ways, however. In Del Valle-Cruz,
the underlying sex offense occurred 15 years prior to the SORNA
violation, and although the defendant had been convicted of a few
registry violations and a domestic battery in the years immediately
after the sex offense, he had subsequently turned his life around
and had no convictions (aside from the failure to register) for
more than nine years. Id. at 52–53, 60–61 (distinguishing Mercado,
where defendant had an extensive criminal history). In contrast,
in this case, the defendant’s criminal activities are numerous and
show no sign of cessation. Furthermore, his sex offense is
considerably more recent. Additionally, Del Valle-Cruz emphasized
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that the district court had provided no explanation or
justification whatsoever for imposing the conditions, id. at 56–
58, unlike here, where the district court did provide some
explanation. Finally, the conditions in Del Valle-Cruz implicated
a fundamental constitutional liberty interest, id. at 62
(condition prohibited all contact with minors, including
defendant’s own son), in a way not at issue in this case, where
the district court included an exception for the defendant’s own
child and others with permission.2
Next, the defendant argues that the district court
failed to provide a sufficient explanation to support the
conditions it imposed. When the defendant objected to the
conditions of supervised release, the district court responded:
“to all of those I say the information contained in paragraph 51
of the presentence report [is] sufficient to support the Court’s
making those orders.” Paragraph 51 explains the details of the
2 In a Rule 28(j) letter, see Fed. R. App. P. 28(j), the
defendant additionally cites to United States v. Fey, 834 F.3d 1(1st Cir. 2016). In that case, the defendant had been convicted of
the underlying sex offense in 1999, and since that time, his only
crimes were failure to register and violation of a probation
condition prohibiting him from residing with minors. Id. at 4.
Furthermore, the conditions prohibited him from having contact
with any children, including family members. Id. at 5. While the
court reversed the associational conditions, it nevertheless
upheld an employment condition. Id. at 6. Considering that the
defendant’s criminal history is more extensive than that in Fey,
and that his conditions contain an exception for his own child,
Fey does not command a reversal here.
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2006 child pornography conviction. In addition, when the defendant
objected to the condition that prohibits residing with children,
the district court responded, “[i]t says without prior
authorization.” 3
The defendant claims that the reference to paragraph 51
is “too tenuous a rationale” to support the imposition of the
conditions, but we have previously upheld similar explanations.
See Mercado, 777 F.3d at 535 (district court’s rationale was that
probation office had discretion to order sex offender treatment;
such treatment is “fairly standard in sex offender cases;” and
probation office could review living and employment situations to
mitigate risk); cf. Del Valle-Cruz, 785 F.3d at 62 (reversing where
“district court provided us no clue as to its reasoning” (emphasis
added)). In this instance, we can infer from the district court’s
reference to paragraph 51 that it was concerned about the serious
nature of the underlying sex offense, and that this prior offense,
3 At the beginning of oral argument, when counsel for the
defendant was discussing the conditions, she described this
condition as “presumably allow[ing] him to have unsupervised
contact with his child.” (emphasis added). Later, counsel
represented that the condition was that he could have no contact
with children under 18 without supervision, omitting the exception
for his own child. Although there was a discrepancy between the
written and oral judgment, we assume counsel was aware of this
discrepancy and understood that the oral judgment controls. Fey,
834 F.3d at 6 n.5. Counsel may have intended only to use shorthand,
but we nevertheless remind her that the duty of candor requires a
certain amount of clarity, even if it comes at the expense of
brevity.
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when combined with the defendant’s criminal history, made him more
likely to reoffend. In addition, the district court pointed out
that the probation office could make exceptions to some of the
conditions as needed.
The defendant also argues that the terms of special
conditions 8, 10, and 11, each of which allow the probation officer
to approve specific exceptions to those conditions, are not enough
to salvage conditions that are otherwise impermissible. In its
brief, the United States responds as though the defendant was
making an unpreserved delegation claim, but the defendant conceded
at oral argument that the argument is not about delegation. Rather,
his point is that the conditions themselves hinder the parent-
child relationship, and the ability to petition the probation
office for an exception is not sufficient to justify leaving the
conditions in place. As discussed above, however, these conditions
are permissible and virtually identical to conditions in other
cases that we have upheld. See Pabon, 819 F.3d at 29; Mercado, 777
F.3d at 535. Furthermore, giving 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. See
Pabon, 819 F.3d at 31–32 (citing Mercado, 777 F.3d at 539; United
States v. Santiago, 769 F.3d 1, 6 (1st Cir. 2014); and United
States v. Smith, 436 F.3d 307, 312 (1st Cir. 2006)). Should the
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defendant object to a decision of the probation officer, he has
the option of seeking redress with the district court pursuant to
18 U.S.C. § 3583(e)(2). See Mercado, 777 F.3d at 539.
Additionally, the defendant claims that the limitations
on interacting with minors, loitering where children congregate,
working or volunteering with minors, and residing with children
(except his own) significantly impede his freedom to associate
with his family. At the time of his arrest, the defendant was
living as a family with his fiancée, their minor child, and his
fiancée’s child, who is the half-sibling of the defendant’s child
and whom the defendant claims to be raising as his own. The
defendant argues that the conditions fail to take into account his
relationship with his fiancée’s child, and also significantly
limit the parenting activities in which he can engage, including
taking the children to and from school and participating in events
like birthday parties and after-school activities.
As an initial matter, we note that there is a discrepancy
between the written and oral versions of condition 11. At
sentencing, the district court announced that the defendant shall
“not reside with anyone under the age of 18, with the exception of
your own children, unless approved in advance by the probation
office.” The written condition omits the “own children” exception.
As a general rule, “where the conditions imposed orally conflict
in a material way with the conditions that ended up in the
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judgment, the oral conditions control.” United States v. Fey, 834
F.3d 1, 6 n.5 (1st Cir. 2016) (quoting United States v. Santiago,
769 F.3d 1, 10 (1st Cir. 2014). Therefore, we assume that the
district court intended to include the exception. Given the fact
that the order could benefit from further clarification, however,
we will remand to the district court with instructions to enter a
corrected judgment that reflects the exception to condition 11
that allows the defendant to reside with his own child.
The defendant makes an argument that, because he lives
in a home with his fiancée and two children, and is raising the
fiancée’s child as his own, the soon-to-be stepchild should be
treated the same as the defendant’s biological child for purposes
of the release conditions. If that is true, it may be that the
district court intended such a result when specifying that the
defendant could associate and reside with his “own” children, but
the order is not clear on that point. Therefore, on remand, the
district court should clarify whether the fiancée’s child is
included in the exception to the general conditions.
Finally, we note that the restrictions on interaction
with minors are not to be construed so strictly as to prohibit any
manner of contact with other children. “[A]ssociational
restrictions are usually read to exclude incidental encounters.”
Pabon, 819 F.3d at 35. Otherwise, such a prohibition could become
tantamount to “house arrest.” Id. In Pabon, we explained that we
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would read a no-contact provision to cover only intentional
conduct. Id. Due to the defendant’s concerns, we instruct the
district court, in revising its order, to explain the limitations
of the order and to elucidate the kinds of incidental contact that
are permitted. For example, if the defendant were to drop his child
off at a birthday party, pausing only to check in with the adult
in charge and not speaking to any children, such an activity,
without more, likely should not be read to violate the conditions
of his release. Similarly, it may be that the district court did
not intend to limit contact with children other than his own in
situations where the children are in the presence of or being
supervised by other adults.
Ultimately, the conditions, even as modified, will limit
the defendant’s ability to participate in the full range of
activities in which his children may engage. As discussed above,
however, those conditions are not inherently unreasonable, and are
not impermissible given the defendant’s 2006 child pornography
conviction, his lengthy criminal history, and his recent failure
to register as a sex offender as required by law. Furthermore,
many of the conditions allow the defendant to obtain permission
from the probation office on an as-needed basis.
III. Conclusion
For the reasons stated above, the conditions of
supervised release are affirmed, except that those conditions
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shall, on remand, be corrected and clarified consistent with this
opinion. When so corrected and clarified, the district court shall
enter an amended judgment and commitment order.
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