United States v. Berrios-Cruz , 854 F.3d 731 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1058
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM BERRÍOS-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Lenore Glaser on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
December 12, 2016
PER CURIAM. Defendant-Appellant William Berríos-Cruz
appeals certain special conditions of supervised release imposed
in connection with his guilty plea to production of child
pornography. See 18 U.S.C. § 2251(a). Because Berríos's plea
agreement contained a knowing and voluntary waiver of any right to
appeal his sentence, we may reach the merits of his claims only to
prevent a "miscarriage of justice." United States v. Vélez-
Luciano, 814 F.3d 553, 559 (1st Cir. 2016). With respect to all
but one of the challenged conditions, Berríos falls short of this
bar and, accordingly, we must enforce his appellate waiver.
Condition four's requirement that Berríos submit to
penile plethysmograph ("PPG") testing, however, presents a
different situation. Indeed, the government concedes that this
requirement, imposed without any explanation by the district
court, should be vacated. See United States v. Medina, 779 F.3d
55, 71 (1st Cir. 2015) (holding that the district court must
"provide a substantial justification before making submission to
PPG testing part of a condition of supervised release"). We agree
that enforcement of Berríos's appellate waiver with respect to the
PPG testing requirement would result in a miscarriage of justice.
See Vélez-Luciano, 814 F.3d at 564-65 (holding that "potentially
subjecting [the defendant] to PPG testing when the government
expressly disavows the utility of this particular procedure about
- 2 -
which we have expressed reservations, especially when the record
lacks any explanation of the applicability of PPG testing to this
defendant, constitutes a miscarriage of justice," as well as plain
error (citation omitted)).
For the foregoing reasons, we VACATE the portion of
condition four that authorizes PPG testing and remand for the
district court to consider the parties' joint recommendation that
the relevant part of the condition be stricken. We AFFIRM all
other aspects of Berríos's sentence.
- 3 -