United States v. Sepulveda Contreras , 466 F.3d 166 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 04-1409
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS SEPÚLVEDA-CONTRERAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
Anita Hill-Adames, on brief for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
H.S. García, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Senior Appellate Attorney, on
brief for appellee.
October 25, 2006
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On September 17, 2003,
Defendant-Appellant Luis Sepúlveda-Contreras ("Sepúlveda") pled
guilty to a charge of carjacking under 18 U.S.C. §§ 2 and 2119(2).
Sepúlveda was later sentenced to 235 months in prison and five
years of supervised release. He now appeals, arguing that: (1) the
district court violated his right to be present at sentencing by
imposing certain conditions of supervised release for the first
time in the written judgment without announcing them orally at
sentencing; and (2) the district court improperly delegated to the
probation officer the responsibility for determining the number of
drug tests he must undergo while on supervised release. After
careful review, we vacate the aforementioned supervised release
conditions and remand for re-sentencing consistent with this
opinion.
I. Background
On September 23, 2002, Sepúlveda and his co-defendant,
Frankie Torres-Colón,1 were walking, accompanied by a small child,
in Río Piedras, Puerto Rico, when they saw a man driving a blue
Dodge Intrepid pull into a school parking lot. The two defendants
approached the driver after he exited his car, threatened him with
knives, and demanded his car keys. The victim initially complied,
but when the defendants insisted that he get into the car with
1
Torres-Colón is not a party to this appeal.
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them, he refused and a struggle ensued, during which one or both
defendants stabbed him. The defendants then stole the car.
On February 13, 2004, the district court sentenced
Sepúlveda to 235 months in prison -- which represented the upper
limit of the applicable Guideline range -- and a five-year term of
supervised release.2 The court based its decision to sentence
Sepúlveda to the upper limit of the applicable range on several
factors, including: (1) that Sepúlveda had "been previously
involved and convicted of criminal charges at the state level which
clearly shows that [he] has no respect for the criminal justice
system"; (2) that Sepúlveda, who was given an electronic monitoring
bracelet as part of supervised release from state prison on an
unrelated conviction, was wearing the bracelet when he committed
the carjacking; (3) that the carjacking resulted in permanent and
life threatening bodily injury and also put a minor at risk; and
(4) the court's belief that "imposing a stiff sentence will be a
step towards returning control of the communit[y] to its
residents." The court also stated that "[t]he terms and conditions
[of the supervised release] shall be set forth in the [written]
judgment." The court decided not to impose a fine -- although it
2
Sepúlveda's Presentence Report ("PSR") identified him as a
career offender and set his Base Offense Level at 34. It then gave
him a three-level deduction for acceptance of responsibility,
resulting in a Total Offense Level at 31. Combined with a Criminal
History Category of VI due to his career offender status, the
applicable Guideline range was 188-235 months in prison.
-3-
could have imposed a fine ranging from $17,500 to $175,000 -- due
to Sepúlveda's financial condition.
The written judgment was entered on February 17, 2004.
The judgment contained thirteen conditions denominated as
"standard" by the Guidelines and several conditions denominated as
"mandatory" by the Guidelines. See U.S.S.G. § 5D1.3. The judgment
also included three conditions that are the subject of this appeal.
First, the judgment stated that "[t]he defendant shall submit to
one drug test within 15 days of release from imprisonment and at
least two periodic drug tests thereafter as required by the
Probation Officer." (emphasis added). The judgment included two
additional conditions:
1. The defendant shall provide the U.S.
Probation Officer access to any financial
information upon request, and shall produce
evidence to the U.S. Probation office to the
effect that income tax returns have been duly
filed with the Commonwealth of Puerto Rico
Department of Treasury as required by law.
2. The defendant shall submit his person,
residence, office or vehicle to a search,
conducted by a United States Probation Officer
at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of
contraband or evidence of a violation of a
condition of release; failure to submit to a
search may be grounds for revocation; the
defendant shall warn any other residents that
the premises may be subject to searches
pursuant to this condition.3
3
We will refer to these conditions as the "financial disclosure
condition" and the "search condition."
-4-
After filing this appeal, on February 18, 2004,
Sepúlveda's counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), requesting to withdraw. We rejected this
request and ordered counsel to file a merits brief addressing: (1)
whether the district court violated Sepúlveda's right to be present
at sentencing by imposing the two non-mandatory, non-standard
conditions in the written judgment without first announcing them at
oral argument; and (2) whether the district court improperly
delegated to the probation officer the responsibility for
determining the number of drug tests Sepúlveda must undergo while
on supervised release.
II. Discussion
A. Non-Mandatory, Non-Standard Conditions
Sepúlveda first argues that the district court violated
his right to be present at sentencing by imposing the financial
disclosure and search condition for the first time in the written
judgment without orally announcing them at sentencing.
We begin by noting that "[d]efendants have a right,
guaranteed by the United States Constitution and the Federal Rules
of Criminal Procedure, to be present during sentencing." Meléndez-
Santana v. United States, 353 F.3d 93, 99 (1st Cir. 2003),
overruled, in part, on other grounds by United States v. Padilla,
415 F.3d 211, 215 (1st Cir. 2005). Accordingly, "where the
conditions of supervised release announced at the sentencing
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hearing conflict in a material way with the conditions of
supervised release in the written sentencing order, the oral
conditions control." Id. at 100. In Meléndez-Santana, we found
that a district court's imposition of a drug treatment condition
for the first time in the written judgment violated the defendant's
right to be present because it "imposed a potentially significant
new burden on the Defendant." Id.
However, we have stated that "no material conflict exists
where the defendant is on notice that he is subject to the terms
included in the written judgment." United States v. Ortiz-Torres,
449 F.3d 61, 74 (1st Cir. 2006). In determining whether Sepúlveda
had notice of the two conditions imposed in the written judgment,
we must first consider the type of condition. The Sentencing
Guidelines specify different categories of conditions for
supervised release: (1) "mandatory" conditions, U.S.S.G. § 5D1.3
(a); (2) "standard" conditions, id. § 5D1.3(c); (3) "special"
conditions, which become "recommended" if certain criteria are met
and "may otherwise be appropriate in particular cases," id. § 5D1.3
(d); (4) "special" conditions that "may be appropriate on a case-
by-case basis, id. § 5D1.3(e); and (5) other conditions that meet
certain criteria, id. § 5D1.3(b). Defendants are deemed to be on
constructive notice for mandatory and standard conditions announced
for the first time in a written judgment, and therefore have no
right-to-be-present claim with respect to any such condition. See
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United States v. Vega-Ortiz, 425 F.3d 20, 22-23 (1st Cir. 2005)
(mandatory conditions); United States v. Tulloch, 380 F.3d 8, 13-14
& n.8 (1st Cir. 2004) (per curiam) (standard conditions).
We also note that at least two other circuits have held
that defendants have constructive notice for "special" conditions
that become "recommended" when certain criteria are met. See,
e.g., United States v. Torres-Aguilar, 352 F.3d 934, 937 (5th Cir.
2003); United States v. Asunción-Pimental, 290 F.3d 91, 94 (2d Cir.
2002) (stating that, where specific factors necessary to make
"special" conditions "recommended" are present, "these 'special'
conditions are no different in practical terms from 'standard'
conditions, that is, they are generally recommended"). But see
United States v. Thomas, 299 F.3d 150, 155 (2d Cir. 2002) (holding
that conditions announced for the first time in a written judgment
that "govern more than the basic administration" of supervised
release violate a defendant's right to be present at sentencing).
The financial disclosure condition imposed by the
district court is a "special" condition that becomes "recommended"
if "the court imposes an order of restitution, forfeiture, or
notice to victims, or orders the defendant to pay a fine."
U.S.S.G. § 5D1.3(d)(3). However, although the district court could
have imposed a fine or restitution order on Sepúlveda, it chose not
to. Therefore, the condition did not become a "recommended"
condition. The search condition is not specifically enumerated in
-7-
any of the conditions listed in § 5D1.3; instead, it falls under
the "catch-all" provision found in § 5D1.3(b), and is therefore not
a "recommended" condition. In sum, both of the conditions imposed
by the district court are non-mandatory, non-standard, and non-
recommended conditions of supervised release.
To our knowledge, no circuit has upheld the imposition of
such conditions for the first time in a written judgment in the
face of a right-to-be-present claim. We decline to do so here.
From our review of the record, there is nothing that would have
served to put Sepúlveda on constructive notice that the two
conditions would be imposed for the first time in the written
judgment. Furthermore, the imposition of both conditions could
potentially impose a significant burden on Sepúlveda. We therefore
find that the district court erred in imposing these two conditions
for the first time in the written judgment.4
Having concluded that the district court committed error,
we must now address whether we review for harmless or plain error.
Sepúlveda argues that he did not have an opportunity to object to
the conditions at sentencing, and that our review is therefore for
4
The government argues that Sepúlveda has waived any argument
regarding the search condition because he "mentioned", but did not
"discuss[]" the condition. We disagree. While Sepúlveda focuses
much of his argument on the financial disclosure condition, he
mentions the search condition and his brief clearly challenges it.
This is not a situation where we are forced to piece together
Sepúlveda's argument for him, see United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990), and we therefore find no waiver.
-8-
harmless error. The government argues that Sepúlveda forfeited his
right to object and that our review is thus for plain error. We
agree with Sepúlveda.
Right-to-be-present claims are subject to harmless error
analysis if the defendant had no opportunity to object before the
conditions were imposed. See Ortiz-Torres, 449 F.3d at 74 (citing
Meléndez-Santana, 353 F.3d at 108). Here, since the conditions
were announced for the first time in the written judgment,
Sepúlveda had no opportunity to object to their imposition.
The government makes two arguments for plain error.
First, it notes that the district court stated at sentencing that
"the terms and conditions [of supervised release] shall be set
forth in the judgment." According to the government, Sepúlveda
should have objected to having the terms and conditions set forth
in the written judgment. We disagree. As our discussion above
illustrates, because these were special, non-mandatory and non-
recommended conditions, Sepúlveda did not have constructive notice
that they would be imposed in the written judgment. We see no
reason for holding that Sepúlveda forfeited objections to
conditions he had no reason to anticipate.
Second, the government argues that Sepúlveda forfeited
the argument by not filing any objections once the written judgment
was entered. We note that it is theoretically possible for a
defendant to object to a previously unannounced written condition
-9-
after judgment is entered. See, e.g., Fed. R. Crim. P. 35(a)
("Within 7 days after sentencing, the court may correct a sentence
that resulted from arithmetical, technical, or other clear
error."). However, given the context of this case, there are
several reasons why we are not inclined to find that Sepúlveda
should have objected after judgment was entered.
First, we have stated that, in the sentencing context, "a
post-sentence objection is not necessarily required to preserve the
issue for appeal if the defendant could not reasonably have
anticipated the issue would arise until after the court ruled."
United States v. Cortés-Claudio, 312 F.3d 17, 24 (1st Cir. 2002)
(citing United States v. Gallant, 306 F.3d 1181, 1188-89 (1st Cir.
2002)). As we have already discussed, Sepúlveda could not have
reasonably anticipated the imposition of these conditions. Second,
we have also noted that "[t]here is . . . a need for finality and
few trial judges would warm to a rule which requires continued
argument after the court gives its sentence." Gallant, 306 F.3d at
1188-89.5 Finally, "unlike other areas, there is no Federal Rule
of Criminal Procedure giving advance notice to counsel of a
requirement to make post-sentence objections." Id. at 1189. It
would be unwise to encourage a practice of entering objections
after the written judgment has entered, for doing so would
5
While Gallant presented a different factual scenario than the
instant case, the policy concerns expressed in that opinion apply
with full force to this case.
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undermine the interest in finality. For these reasons, we reject
the government's argument that Sepúlveda forfeited the argument by
not objecting after the written judgment was entered. We will
therefore review the imposition of the two conditions for harmless
error.
Under the harmless error standard of review, the burden
is on the government to prove that the error in question is
harmless. United States v. Vázquez-Rivera, 407 F.3d 476, 489 (1st
Cir. 2005). "The standard of proof, however, depends on whether
the error is conceived of as constitutional." Id. If the error is
constitutional in nature, "the government has the burden of proving
beyond a reasonable doubt that the error did not affect the
defendant's substantial rights." Id. If the error is not
constitutional in nature, "the government has the burden of
demonstrating the absence of any grave doubt" regarding the
harmlessness of the error. See id.Here, the government has the burden of proving beyond a
reasonable doubt that the violation of Sepúlveda's constitutional
right to be present at his sentencing did not compromise his
ability to object to the sentencing conditions imposed by the
district court. To meet this burden, the government would need to
show, beyond a reasonable doubt, that the special conditions would
have been imposed even if Sepúlveda had been present. It has
-11-
failed to do so. We therefore vacate the financial disclosure and
search conditions in Sepúlveda's sentence.
B. Improper Delegation
The written judgment stated that Sepúlveda "shall submit
to one drug test within 15 days of release from imprisonment and at
least two periodic tests thereafter as required by the Probation
Officer." (emphasis added). Both Sepúlveda and the government
acknowledge that, under our precedent, the district court
improperly delegated to the probation officer the authority to
determine the number of drug tests Sepúlveda must undergo while on
supervised release. However, both parties erroneously assume that
our review is for plain error, and that the improper delegation
cannot meet this rigorous test.
In Meléndez-Santana, 353 F.3d at 106, we held that the
plain language of 18 U.S.C. § 3583(d) "requires courts to determine
the maximum number of drug tests to be performed beyond the
statutory minimum of three." Delegating this authority to another
entity is improper. We also held that the improper delegation
constituted plain error. Recently, in Padilla, 415 F.3d at 215, we
overruled Meléndez-Santana's holding that such improper delegation
constituted plain error, although we declined to reconsider
Meléndez-Santana's holding that the delegation was error. If we
were reviewing for plain error, it is unlikely that Sepúlveda would
be successful.
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However, Sepúlveda's case is distinguishable from Padilla
and Meléndez-Santana because Sepúlveda never had an opportunity to
object to the wording of the drug testing condition.6 In both
Meléndez-Santana and Padilla, the district court included the drug
testing condition that contained the improper delegation in both
the oral and written judgments. By contrast, in the instant case,
the district court announced the drug testing condition only in the
written judgment.
We have stated that "'typically, the court of a appeals
reviews a district court's imposition of a special condition of
. . . supervised release' unless 'the sentencing court affords the
defendant an opportunity to object to the condition but the
defendant holds his tongue,' in which case review is for plain
error." United States v. Mojica-Rivera, 435 F.3d 28, 35 (1st Cir.
2006) (quoting United States v. Brown, 235 F.3d 2, 3 (1st Cir.
2000)). In Mojica-Rivera, the district court included a drug
testing condition in the written judgment that it did not include
in the oral pronouncement of the sentence. In that case, we
6
Furthermore, the constructive notice rationale that we have
applied in other cases, see Tulloch, 380 F.3d at 13, is
inapplicable here. Although drug testing is a mandatory condition
under the Guidelines, the Guidelines specifically state that the
number of drug tests are determined by the court, not the probation
officer. See U.S.S.G. § 5D1.3(a)(4). Therefore, even if Sepúlveda
were on constructive notice of the drug testing condition, he
cannot be held to have had constructive notice that the district
court would delegate to the probation officer the authority to
determine the number of drug tests he must undergo.
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reviewed the imposition of the drug testing condition for abuse of
discretion, see id., and we follow the same course today. Given
our determinations in Meléndez-Santana and Padilla that similar
language in a district court's judgment constituted "clear and
obvious error," see Padilla, 415 F.3d at 220, we herein conclude
that the district court in this case abused its discretion by
delegating to the probation officer the authority to determine the
number of drug tests Sepúlveda must undergo while on supervised
release. We vacate the drug testing provision in Sepúlveda's
sentence.
III. Conclusion
For the forgoing reasons, we vacate the supervised
release conditions regarding financial disclosure, searches, and
drug testing; and we remand for re-sentencing consistent with this
opinion.
Vacated and Remanded.
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