United States v. Del-Valle-Cruz , 785 F.3d 48 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 13-1050
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    CARLOS MANUEL DEL VALLE-CRUZ,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. José A. Fusté, U.S. District Judge]
    Before
    Torruella, Thompson, and Barron,
    Circuit Judges.
    Jedrick H. Burgos-Amador for appellant.
    Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
    Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
    States Attorney, was on brief, for appellee.
    April 6, 2015
    THOMPSON, Circuit Judge.    Defendant Carlos Manuel Del
    Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in
    prison and seven years of supervised release after pleading guilty
    to one count of failing to register as a sex offender. By our
    count, this is the third time Del Valle-Cruz has been convicted of
    failing to register since his 1997 sex offense conviction.      As
    troubling as that is, we note that he has not been charged with any
    other sex offenses in the intervening eighteen years. The terms of
    Del Valle-Cruz's supervised release include a series of special
    conditions that prohibit him from contact with minors and require
    him to undergo sex offender treatment -- terms that were not
    imposed as part of his sentence for the underlying sex offense.
    Moreover, these conditions were imposed in a boilerplate fashion,
    devoid of any explanation by the district court.
    Del Valle-Cruz now seeks to vacate his conviction or,
    failing that, the aforementioned special conditions.   A waiver of
    appeal bars Del Valle-Cruz's appeal of his conviction, as well as
    his appeal of most of the special conditions.   However, as to his
    appeal of the conditions that would interfere with his relationship
    with his son, to avoid a miscarriage of justice, we decline to
    enforce the waiver and instead vacate those conditions that would
    prevent Del Valle-Cruz from contact with, or residing with minors.
    We will remand for de novo resentencing with respect to the
    supervised release term, so that the district court can consider
    -2-
    the supervised release conditions as a whole and in light of
    intervening precedent.   Upon remand for further proceedings on the
    special conditions, we invite the district court to revisit the
    conditions and to explain their justification in this case.
    I.
    Background
    In Oklahoma in 1997, Carlos Manuel Del Valle-Cruz pled
    guilty to a sex offense against a child -- sexual battery.1      The
    charges arose from an incident that occurred while Del Valle-Cruz
    was working in a nursing center.    He approached a fifteen-year-old2
    volunteer, pushed her against a wall and touched and kissed her.
    Del Valle-Cruz, then thirty, claimed the encounter was consensual,
    but given the girl's age, consent was no defense. He was sentenced
    to five years imprisonment, with three years suspended.
    As a result of this conviction, Oklahoma required Del
    Valle-Cruz to register as a sex offender for a period of not less
    than ten years, commencing with his release from prison in 2001.
    In the event that he moved to another state, Del Valle-Cruz was
    required to register in the new state.      Although Del Valle-Cruz
    registered while living in Oklahoma, he moved to Florida and did
    1
    Because the instant appeal arises from a conviction following
    a plea agreement, we draw the facts from the sentencing materials
    and plea colloquy. See United States v. Whitlow, 
    714 F.3d 41
    , 42
    (1st Cir. 2013).
    2
    Although the Pre-Sentencing Report states that the victim was
    fifteen years old, Del Valle-Cruz contends that she was sixteen.
    -3-
    not register there.         In 2003, he was arrested in Florida for
    domestic battery, and was also charged with failing to register as
    a sex offender.      He pled guilty to both charges and was sentenced
    to a year in jail and three years probation.
    In   2007,   after   a   routine   check    of   registered      sex
    offenders, Florida authorities discovered that Del Valle-Cruz had
    absconded from his registered address.           He was charged with, and
    again pled guilty to, failing to register, and received three years
    probation.
    The following year, Del Valle-Cruz received a letter from
    the Oklahoma authorities notifying him that he had been assigned as
    a level three sex offender and would now be required to register
    for   his   lifetime.       The   letter    directed    him   to   contact   the
    coordinator of the registration unit with any questions.                       He
    neither     called    nor    took     any    action     to    challenge      that
    classification.
    In 2009, Del Valle-Cruz moved to Puerto Rico and began
    pursuing a degree in computer information systems.                 Although he
    once again failed to register, Del Valle-Cruz apparently worked
    diligently at his studies, and expected to graduate in May 2014.
    However, after Florida authorities discovered that he had once
    again absconded from his address there, they found out that Del
    Valle-Cruz had moved to Puerto Rico.          A warrant was issued for his
    -4-
    arrest, and in April 2012, Del Valle-Cruz was indicted federally
    for failing to register pursuant to 18 U.S.C. § 2250(a).3
    Del Valle-Cruz pled guilty pursuant to a plea agreement.
    The agreement contained a waiver of appeal clause that stated:
    "[T]he defendant . . . waives and permanently surrenders his right
    to appeal the judgment and sentence in this case."                     An expedited
    Pre-Sentence      Investigation        Report     ("PSR")    was      prepared   and
    disclosed   to    Del     Valle-Cruz     on     December    11,    2012;   the   PSR
    recommended a variety of special conditions of supervised release.
    The next day, the district court conducted a hearing and sentenced
    Del Valle-Cruz to a term of imprisonment of twenty-one months, and
    a supervised release term of seven years.               The district court set
    specific    conditions      of   Del    Valle-Cruz's        supervised     release.
    Pertinent    to    this     appeal,     the     court      accepted     probation's
    recommendation that: (1) Del Valle-Cruz would have to participate
    in mental health and sex offender treatment, including submission
    to polygraph and PPG4 testing; and (2) he was to have no contact
    with minors under the age of 18, would not be allowed to reside in
    3
    18 U.S.C. § 2250(a) provides for a fine or imprisonment for
    up to ten years for sex offenders who travel in interstate commerce
    and knowingly fail to register or update a registration.
    4
    "PPG testing 'involves placing a pressure-sensitive device
    around a man's penis, presenting him with an array of sexually
    stimulating images, and determining his level of sexual attraction
    by measuring minute changes in his erectile responses.'" United
    States v. Medina, 
    779 F.3d 55
    , 65 (1st Cir. 2015) (quoting United
    States v. Weber, 
    451 F.3d 552
    , 554 (9th Cir. 2006)).
    -5-
    the home with a child under the age of 18, and could not work or
    volunteer with minors.      The conditions specified that Del Valle-
    Cruz was not to have any contact with minors "unless approved in
    advance by the U.S. Probation Officer."5        Notably, Del Valle-Cruz
    has a son who is approximately nine years old.
    After the court pronounced the sentence, Del Valle-Cruz
    objected, saying the original offense was (then) some fifteen years
    ago and the record did not reflect justification for the sentencing
    conditions.       With no further elaboration on his objection Del
    Valle-Cruz simply asked the court "to make a record of that."       The
    court     noted    the   objection,    but   imposed   the   conditions.
    Notwithstanding his waiver of appeal, Del Valle-Cruz filed a timely
    appeal.
    In March 2014, subsequent to filing this appeal, Del
    Valle-Cruz received a letter from the Oklahoma Department of
    Corrections informing him that he no longer needed to register in
    that state.       The letter cited a recent Oklahoma Supreme Court
    decision which held retroactive application of that state's sex
    offender registration statute to be a violation of the Oklahoma
    state constitution's ex post facto clause.        See Starkey v. Okla.
    Dep't of Corr., 
    305 P.3d 1004
    (Okla. 2013).
    5
    We shall explore the individual conditions in greater detail
    below.
    -6-
    II.
    Discussion
    On appeal, Del Valle-Cruz seeks to vacate his conviction,
    citing the Oklahoma court's decision to support his argument that,
    at   the    time   of   his   arrest,    he    had   no   duty    to     register.
    Alternatively and notwithstanding his appeal waiver, Del Valle-Cruz
    seeks to vacate some of the sentencing conditions as not reasonably
    related to the nature and circumstances of the offense of failing
    to register, or to his history and characteristics.                    He contends
    that the conditions deprive him of more liberty than is necessary
    to achieve the goals of supervised release.                    Specifically, he
    challenges the following conditions: 5) which prohibits him from
    working with minors; 6) which requires him to submit to sex
    offender treatment; 11) which requires him to submit to mental
    health treatment if he is diagnosed with a mental health disorder;
    13) which prohibits any personal contact with minors; 14) which
    prohibits    him   from   volunteering        with   minors;     and    15)   which
    prohibits him from residing with a minor without prior approval by
    the probation officer.
    We can make quick work of Del Valle-Cruz's condition 11
    challenge.    He makes only a passing reference to condition 11, but
    makes no argument as to why imposing the mental health treatment
    condition would result in a miscarriage of justice.                      "[I]ssues
    adverted to in a perfunctory manner, unaccompanied by some effort
    -7-
    at developed argumentation, are deemed waived."    United States v.
    Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990). Accordingly, we deem this
    argument waived. That leaves us with conditions 5, 13, 14, and 15,
    which relate to interactions with minors, and condition 6, which
    involves sex offender treatment. We shall address these conditions
    separately.
    The government points to the waiver of appeal clause and
    says that, contrary to Del Valle-Cruz's protestations, it should be
    enforced to bar the instant appeal, including the terms of release.
    Alternatively, the government argues that the imposition of the
    conditions of supervised release was not an abuse of discretion.
    A. Waiver of Appeal
    We begin with the waiver of appeal clause in Del Valle-
    Cruz's plea agreement and determine whether it should bar this
    appeal.    We review the validity of waivers of appeal by applying
    the three-prong Teeter test and ask: (1) whether the waiver's scope
    was clearly delineated; (2) whether the district court specifically
    inquired about the waiver of appellate rights; and (3) whether
    denial of those rights would constitute a miscarriage of justice.
    United States v. Teeter, 
    257 F.3d 14
    , 24-25 (1st Cir. 2001).    The
    first two prongs of this test are directed to ensuring that "the
    defendant freely and intelligently agreed to waive [his] right to
    appeal."   
    Id. Although Del
    Valle-Cruz concedes in his reply brief
    -8-
    that his waiver was knowing and voluntary, he argues that enforcing
    the waiver would result in a miscarriage of justice.
    "To    successfully    invoke    the   miscarriage    of   justice
    exception, a garden-variety error will not suffice, rather there
    must be, at a bare minimum, an increment of error more glaring than
    routine reversible error."        United States v. Santiago, 
    769 F.3d 1
    ,
    8 (1st Cir. 2014) (internal quotation marks omitted) (citing United
    States v. Chambers, 
    710 F.3d 23
    , 31 (1st Cir. 2013)).             Del Valle-
    Cruz argues that there are two such errors.              First, his actual
    conviction for failing to register, because he claims that under
    Oklahoma law, he was no longer required to register at the time of
    his arrest. Second, the sentencing conditions, which he argues are
    not reasonably related to the goals of supervised release. We will
    address each in turn.
    1. Waiver of Right to Appeal Conviction
    Del Valle-Cruz first argues that we should not enforce
    the   waiver to bar the appeal of his conviction for failing to
    register,    because      his     Oklahoma    registration       period   was
    impermissibly enlarged from ten years to his lifetime, without the
    benefit of a hearing.       Del Valle-Cruz supports this argument by
    citing the letter he received last year advising him that he was no
    longer required to register in Oklahoma, a letter prompted by the
    ruling in Starkey. According to Del Valle-Cruz, because extensions
    like his violated the Oklahoma state constitution's ex post facto
    -9-
    clause, he was only required to register for the originally-imposed
    ten years.    That registration period would have lapsed by the time
    he was arrested in Puerto Rico in 2012, and therefore Del Valle-
    Cruz contends it cannot be used to support his federal failure-to-
    register conviction.
    Del   Valle-Cruz   was   convicted   under   the   federal   Sex
    Offender Registration and Notification Act ("SORNA"), which was
    enacted in 2006 in an effort to make the existing scheme of state
    registration "more comprehensive, uniform, and effective." Carr v.
    United States, 
    560 U.S. 438
    , 441 (2010).              SORNA defines "sex
    offender" as "an individual who was convicted of a sex offense,"
    and requires that "[a] sex offender shall register, and keep the
    registration current, in each jurisdiction where the offender
    resides."    42 U.S.C. §§ 16911, 16913.
    The triggering event for the duty to register is a sex
    offense conviction, not a state sentence requiring registration as
    Del Valle-Cruz argues.     It would be illogical for SORNA to operate
    to make state registrations more uniform, while at the same time
    allowing individual states to determine which sex offenders have a
    duty to register when they leave that state.          Further, SORNA sets
    out the minimum duration of registration for three "tiers" of
    offenders.     42 U.S.C. § 16915 requires a registration period of
    fifteen years for tier I sex offenders, twenty-five years for tier
    II and lifetime for tier III.         According to the Attorney General,
    -10-
    SORNA "establishes minimum national standards, setting a floor, not
    a ceiling" for the individual states.        The National Guidelines for
    Sex Offender Registration and Notification, 73 Fed. Reg. 38,030-01,
    38,032 (July 2, 2008).      Jurisdictions may choose to exceed the
    guidelines in some areas, including the duration of registration,
    but they must meet the minimum standards to comply with SORNA. 
    Id. Del Valle-Cruz's
    original conviction for a sex offense
    against a child makes him a sex offender under SORNA.          And once he
    crossed the Oklahoma state line, he had a duty under federal law to
    register.   SORNA's shortest registration period is fifteen years,
    and that period begins when the offender is released from prison.
    See 42 U.S.C. § 16915(a) (registration period excludes time the
    offender was in custody).       Del Valle-Cruz was released in 2001;
    even at tier I his duty under the federal statute would continue
    until 2016.
    Accordingly,   we   find   no   error,   let   alone   an   error
    significant enough such that enforcing the waiver of appeal would
    result in a miscarriage of justice.          Del Valle-Cruz's waiver is
    enforceable to bar the appeal of his conviction for failing to
    register.
    2. Waiver of Right to Appeal Sentencing Conditions
    Del Valle-Cruz also appeals certain conditions of his
    supervised release, and the government presses its argument that
    -11-
    the waiver of appeal clause should operate to bar his challenge to
    all of these conditions.
    a. Sex Offender Treatment
    Knowing and voluntary waivers of appeal are binding as
    long as the denial of the right to appeal would not constitute a
    miscarriage of justice.         
    Teeter, 257 F.3d at 25
    .         That is a high
    hurdle for Del Valle-Cruz to clear.             Del Valle-Cruz contends that
    the imposition of sex offender treatment with no explanation, and
    without any indication that he had an inclination to commit another
    sex offense, is an error rising to the level of a miscarriage of
    justice.
    We find that Del Valle-Cruz's case is much like United
    States v. Morales-Cruz, 
    712 F.3d 71
    (1st Cir. 2013), which involved
    similar facts.       There we affirmed the imposition of sex offender
    conditions upon a defendant whose sex offense had been committed
    some sixteen years prior to his conviction for failing to register.
    Like   Del   Valle-Cruz,      the   defendant    in   Morales-Cruz     also      had
    multiple     failure    to   register    convictions,     and   a   more    recent
    conviction for domestic battery. 
    Id. at 73.
    Although the Morales-
    Cruz   court   did     not   give   a   very   lengthy   explanation       for   the
    imposition of sex offender treatment, in stating that the sentence
    and conditions were appropriate, the court referenced the goals of
    deterrence, avoiding recidivism, protecting the community, and
    rehabilitation.         
    Id. at 73-74.
             Here, the court imposed sex
    -12-
    offender treatment conditions upon Del Valle-Cruz without any
    justification or explanation, and although it may have been error
    to provide no reasoning for its decision, given our precedent
    upholding such conditions under similar factual circumstances, we
    cannot say it was "an increment of error more glaring than routine
    reversible error."     
    Santiago, 769 F.3d at 8
    .     In light of Morales-
    Cruz, we see no miscarriage of justice and find that the waiver of
    appeal bars our review of the merits of the sex offender treatment
    condition.6
    b. No Interaction With Minors
    Del Valle-Cruz next argues that the sentencing conditions
    barring   him   from   personal   contact   with   minors   impermissibly
    interfere with his constitutional right to raise his child.           On
    this point, we at least partially agree.
    6
    Recently, in Medina, where a waiver did not prevent our
    reaching the merits of a similar condition, we found the use of PPG
    testing extremely troubling due to its questionable reliability and
    its extraordinary 
    intrusiveness. 779 F.3d at 74
    . Given the
    humiliating nature of the testing, and concerns about its record as
    a "treatment" tool, we held that "in order for the condition
    [imposing PPG] to be deemed facially reasonable, district courts
    must provide a more substantial justification, at least once a
    defendant objects." 
    Id. at 72.
    Del Valle-Cruz did not voice a
    specific objection to PPG testing. However, we are remanding for
    resentencing as explained infra. Upon remand, while revisiting the
    special conditions of supervised release, the district court must
    also give due consideration to our decision in Medina.
    Additionally, conditions of supervised release can be modified once
    a defendant is released from imprisonment.       Fed. R. Crim. P.
    32.1(c).
    -13-
    "Relief under the miscarriage of justice exception is
    often sought but seldom meted out."            
    Santiago, 769 F.3d at 10
    .
    Nevertheless, we have granted relief when an error of significant
    or constitutional dimension is clear, and where there is "little
    prejudice to the government should we take up the merits of [the
    defendant's] appeal given that the government fully briefed this
    issue."    
    Id. Here, the
    error is clear.       Not only did the district
    court     impose    onerous     conditions      without      explanation   or
    justification, but more importantly, two of these conditions (13,
    prohibiting personal contact with minors, and 15, prohibiting
    residing   with    minors)    implicate    a   fundamental    constitutional
    liberty interest -- the relationship between parent and child. See
    Quilloin v. Walcott, 
    434 U.S. 246
    , 255 (1978).
    When imposing special conditions we, along with our
    sister circuits, have "consistently required district courts to set
    forth factual findings" to justify those conditions. United States
    v. Perazza-Mercado, 
    553 F.3d 65
    , 75 (1st Cir. 2009) (quoting United
    States v. Warren, 
    186 F.3d 358
    , 366 (3d Cir. 1999)).                   Other
    circuits have vacated conditions barring contact with minors when
    they were imposed with no explanation.          United States v. Thompson,
    
    777 F.3d 368
    , 376 (7th Cir. 2015) ("Because the district court has
    not provided any explanation of how this condition [barring contact
    with minors] is reasonably related to [the defendant's] offense and
    background or to the goals of punishment, involving no greater
    -14-
    deprivation of liberty than is reasonably necessary to achieve
    these goals, we vacate the condition." (quoting United States v.
    Goodwin, 
    717 F.3d 511
    , 523-24 (7th Cir. 2013))); see also United
    States v. Davis, 
    452 F.3d 991
    , 995 (8th Cir. 2006) (finding that a
    district court's failure to make an individualized determination
    before imposing conditions that interfered with the defendant's
    parental rights was clear error).
    The record before us is devoid of any justification for
    the imposition of conditions that would deprive Del Valle-Cruz of
    any meaningful relationship with his son.          The imposition of these
    conditions -- justified by neither the government nor the court --
    was a significant error. Although a court's failure to explain its
    reasoning for the imposition of conditions does not automatically
    result in a miscarriage of justice, where, as here, the error is of
    this   constitutional    dimension,       there   can    be    no   doubt     that
    enforcement of the waiver would be a miscarriage of justice.                   As
    for prejudice, we conclude the government will suffer no detriment
    if we allow Del Valle-Cruz to challenge these conditions, as it has
    amply briefed the issue.        Accordingly, we decline to enforce the
    waiver of appeal as it relates to conditions 13 and 15.
    Del   Valle-Cruz    also     challenges      the   imposition       of
    condition   5,    prohibiting    him    from   working    with      minors,   and
    condition 14, prohibiting him from volunteering with minors.                   He
    makes no specific argument relative to these two conditions,
    -15-
    leaving us to surmise that he intended that his arguments against
    the "contact with minors" conditions would apply equally to all
    four of the challenged conditions.            However, conditions 5 and 14
    are different; these conditions touch upon Del Valle-Cruz's liberty
    interest, but they do not present as great an infringement.
    Although we are troubled by the imposition of conditions that would
    prevent him from engaging in activities such as volunteering at his
    son's school, particularly since his underlying offense is so
    temporally remote and since he has shown no inclination to abuse
    minors in the intervening years since his initial offense, we
    cannot say with assurance that their imposition would result in a
    miscarriage    of    justice.     Because     Del   Valle-Cruz's   underlying
    conviction arose from an incident that took place in his workplace,
    with a minor volunteer, these two restrictions are at least
    reasonably     related     to    his     history     and   characteristics.
    Accordingly, we will enforce the waiver of appeal as it relates to
    conditions 5 and 14, and we will proceed to consider the merits of
    the appeal of the remaining conditions, 13 and 15.
    B. Appeal of Sentencing Conditions
    Del    Valle-Cruz   challenges    the   sentencing    conditions
    prohibiting him from having personal contact with, and living with,
    any minor child as not reasonably related to either his offense or
    his history and characteristics, arguing the district court abused
    its discretion because there is nothing in the record to suggest
    -16-
    that he poses a danger to children.           As such, he contends that
    these    conditions   would   deprive   him   of   more    liberty    than   is
    necessary because they would interfere with his ability to "form a
    family with a single mother and partake in raising his son."
    We have frequently stated that conditions and terms of
    supervised release are part of a defendant's sentence.               
    Santiago, 769 F.3d at 7
    (citing 18 U.S.C. § 3583).           We review conditions of
    supervised release for abuse of discretion. 
    Morales-Cruz, 712 F.3d at 72
    .    Despite the brevity of the defendant's objection at his
    sentencing hearing, we see no reason to apply plain error review,
    particularly because the government and Del Valle-Cruz agree that
    our review is for abuse of discretion.         "[A]buse of discretion is
    not a monolithic standard. Within its margins, embedded issues may
    receive attention under more narrowly focused standards.                Thus,
    embedded questions of law engender de novo review and embedded
    findings of fact engender clear-error review."             United States v.
    Carrasco-De-Jesús, 
    589 F.3d 22
    , 27 (1st Cir. 2009).            The abuse of
    discretion standard "is not a rubber stamp, counseling affirmance
    of every discretionary decision made by a trial court."                Colon-
    Cabrera v. Esso Standard Oil Co. (P.R.), Inc. 
    723 F.3d 82
    , 88 (1st
    Cir. 2013) (internal quotation marks omitted).            "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
    -17-
    factors but makes a serious mistake in weighing such factors." 
    Id. (internal quotation
    marks omitted).
    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.[7]
    
    Perazza-Mercado, 553 F.3d at 69
    (internal quotation marks and
    citations omitted).        The district court is required to provide a
    "reasoned and case-specific explanation" for the conditions it
    imposes.      
    Id. at 75.
        This requirement is rooted in 18 U.S.C.
    §   3553(c)    which    mandates    that   "[t]he   court,      at   the    time   of
    sentencing,     shall    state     in   open    court   the    reasons      for    its
    imposition of the particular sentence." In addition to ensuring an
    individualized sentence, this reasoned explanation enables our
    appellate review.         
    Perazza-Mercado, 553 F.3d at 75
    .                  Further,
    "courts of appeals have consistently required district courts to
    set   forth     factual     findings       to   justify       special      probation
    conditions." 
    Id. (quoting Warren,
    186 F.3d at 366). These factual
    7
    The goals of supervised release include: affording adequate
    deterrence; protecting the public; and rehabilitating the
    defendant. 18 U.S.C. § 3553(a)(2).
    -18-
    findings must have "adequate evidentiary support in the record."
    United States v. York, 
    357 F.3d 14
    , 20 (1st Cir. 2004).
    Although we oblige the district court to "provide a
    reasoned    and     case-specific      explanation,"         no   explanation    was
    provided here. 
    Perazza-Mercado, 533 F.3d at 75
    . Nevertheless, our
    analysis does not end there; "even in the absence of an explanation
    from the court, a court's reasoning can often be inferred after an
    examination    of    the    record."         
    Id. (internal quotation
        marks
    omitted).    Accordingly, because the district court has given us no
    guidance whatsoever as to the rationale for the conditions it
    imposed, we look to the record to determine whether the court's
    reasoning can safely be inferred.
    As we said, Del Valle-Cruz disputes the validity of
    conditions 13 and 15, which, to remind the reader, relate to
    personal     contact       with     minors     and     residing     with    minors,
    respectively.       Because both of these conditions would greatly
    impact Del Valle-Cruz's ability to have a normal relationship with
    his son, we will address them together.
    Reasonable Relation
    We recognize that a district court "may impose any
    special     condition      of     supervised       release   that   it     considers
    appropriate," but the court's discretion is limited by the caveat
    that the conditions must be reasonably related to "the nature and
    circumstances of the offense and the history and characteristics of
    -19-
    the defendant."   
    Morales-Cruz, 712 F.3d at 74
    (internal quotation
    marks omitted).   Del Valle-Cruz first argues that these conditions
    are not reasonably related to his offense, because the crime of
    failing to register did not involve sexual conduct, and the
    underlying sex offense was temporally remote.    Moreover, he points
    out that these conditions were not even imposed at the time of his
    original sex offense conviction.        Nor, he contends, are the
    conditions reasonably related to his characteristics, because he
    has not committed similar conduct in the intervening eighteen
    years, and there is no evidence to suggest that he has a propensity
    to commit a future sex offense.
    In United States v. Medina, we vacated a condition
    barring a defendant's access to otherwise legal pornography as not
    reasonably related because "there [was] no evidence in the record
    to indicate that such material contributed to [the defendant's]
    offense or would be likely to contribute to recidivism in the
    future given [his] particular history and characteristics."       
    779 F.3d 55
    , 63 (1st Cir. 2015) (internal quotation marks omitted).
    Similarly, there is nothing in the record before us to indicate
    that the presence of a child in the home contributed to Del Valle-
    Cruz's offense, nor that residing with a child would increase Del
    Valle-Cruz's risk of recidivism.
    It is also troubling that the conditions were imposed so
    many   years   after   Del   Valle-Cruz's   underlying   sex   offense
    -20-
    conviction.    In 
    Morales-Cruz, 712 F.3d at 75-76
    , we analyzed six
    cases from other circuits that reversed sentencing conditions while
    expressing this same concern.     Ultimately, we determined that all
    of those cases were distinguishable.         
    Id. However, the
    defendant
    in   Morales-Cruz   challenged   the     imposition    of   sex    offender
    treatment, not conditions barring contact with minors.            
    Id. at 72.
    Here, given the gravity of the liberty interest at stake, the
    concept of basing such an invasive condition on an offense many
    years in the past remains disturbing.        Although not binding on us,
    we note our sister circuits continue to take a dim view of
    equivalent sentencing conditions based on temporally remote sex
    offense convictions where there has been no subsequent similar
    conduct.
    The Seventh Circuit, in 
    Goodwin, 717 F.3d at 523
    , vacated
    a condition prohibiting contact with minors, saying, "We are
    skeptical that such a sweeping condition could be reasonably
    related to [defendant's] offense, history and characteristics,
    particularly since there is no evidence in the record of any
    incidents   involving   minors   in    the   almost   two   decades   since
    [defendant's] 1994 conviction."        Notably, the district court in
    Goodwin "did not discuss its reasons for imposing" the special
    conditions, leading the Seventh Circuit to caution that "district
    courts' ability to impose no-contact conditions does not absolve
    them of their responsibility to explain why such conditions are
    -21-
    warranted in particular cases." 
    Id. at 515,
    524. In United States
    v. Bear, 
    769 F.3d 1
    221, 1229 (10th Cir. 2014), the Tenth Circuit
    held that a sex offense conviction twelve years earlier, absent
    either   a   history   of   other   sexual   offenses   or   evidence   of   a
    propensity to commit future sex offenses, was "simply too remote in
    time, standing alone" to justify the imposition of conditions that
    would limit the defendant's ability to live with his children.8
    We find the reasoning of these cases persuasive in this
    particular instance.        Here, although Del Valle-Cruz was convicted
    of violating SORNA by failing to register, that offense "is not
    itself a sex offense." United States v. Mercado, 
    777 F.3d 532
    , 538
    (1st Cir. 2015) (citing U.S.S.G. § 5D1.2, cmt. n.1).             Del Valle-
    Cruz has not committed a sex offense in the eighteen years since
    his original conviction. Moreover, the special conditions were not
    imposed when Del Valle-Cruz was initially sentenced for the earlier
    sex offense. In the intervening years, although Del Valle-Cruz has
    8
    In United States v. Bear, a defendant who had been convicted
    in 2001 of two counts of committing lascivious acts with a child
    (having forced one child under twelve to engage in oral sex and
    intercourse, and fondled the genitals of another child), appealed
    the conditions imposed after his second failure-to-register
    conviction. 
    769 F.3d 1
    221, 1225 (10th Cir. 2014). The defendant
    challenged conditions ordering sex offender treatment, as well as
    conditions prohibiting contact with minors. 
    Id. at 1226.
    The 10th
    Circuit cited our decision in Morales-Cruz as authority for
    affirming sex offender conditions for SORNA violations, and
    affirmed the imposition of sex offender treatment, but vacated the
    restrictions on contact with minors because they posed a greater
    deprivation of liberty than reasonably necessary. 
    Id. at 1226-27,
    1229.
    -22-
    committed other crimes, he has not been arrested for any crime
    sexual in nature or involving a minor.9     Like Goodwin, the district
    court offered no hint of the reasoning behind the imposition of
    these 
    conditions. 717 F.3d at 515
    .     There is simply nothing in the
    record before us that indicates a propensity to commit a future sex
    offense, particularly as it relates to minors.
    Although we recently upheld similar restrictions on
    contact with minors in 
    Santiago, 769 F.3d at 4-5
    , we note that the
    facts surrounding the underlying sex offense conviction in Santiago
    are distinguishable.      The defendant in Santiago was convicted of
    failing to register in 2012; ten years earlier, he had been
    convicted of lewd molestation and child abuse after molesting the
    seven-year-old daughter of his live-in girlfriend.            
    Id. We affirmed
    the imposition of the "undoubtedly stringent" conditions
    limiting Santiago's contact with minors in part because his "living
    arrangements mirrored those from when the [underlying sex offense]
    occurred."    
    Id. at 9.
       The same danger does not exist here.     Del
    Valle-Cruz did not victimize a child in his home.      In fact, he has
    two older (now adult) children, with whom he lived without incident
    for six years.    We also note that the district court in Santiago
    9
    Since his 1997 sex offense conviction, in addition to failing
    to register as a sex offender, Del Valle-Cruz had been convicted of
    possessing contraband in a penal institution (1998), petit larceny
    (2002), possession of marijuana (2002), and domestic battery
    (2003).
    -23-
    reasonably explained the necessity of imposing the conditions;
    here, the district court offered no justification whatsoever.
    More recently, in 
    Mercado, 777 F.3d at 535
    , we reviewed
    for abuse of discretion a condition that prohibited a defendant
    from contact with minors (including his two children) without the
    prior approval of his probation officer.     We find Mercado and Del
    Valle-Cruz's case factually dissimilar.     The defendant in Mercado
    was convicted of indecent assault in 2002 -- a charge that arose
    from the rape of a fifteen-year-old girl.      
    Id. at 534.
      This was
    not an isolated incident; his resume of criminal activity spanned
    a period of over twenty years.   
    Id. By the
    time he pled guilty to
    failing to register as a sex offender, some ten years after the
    rape, he had racked up "over 45 infractions running the gamut from
    drug offenses to property crimes to violent crimes (such as
    domestic assault and domestic battery)."     
    Id. This was
    a spree so
    impressive that the district court observed "the defendant had what
    may have been one of the most profuse criminal histories" that
    court had ever seen.   
    Id. Even after
    his arrest for failing to
    register, he didn't allow the terms of his pretrial release to
    break his stride. 
    Id. Instead, while
    awaiting trial, he continued
    to fail to register, blew off a court appearance for driving
    without a license, tested positive for cocaine use and scored "no
    fewer than ten instances of failing to comply with location
    -24-
    restrictions." 
    Id. Not surprisingly,
    the court determined that he
    presented an "obvious risk of recidivism."                 
    Id. at 539.
    The Mercado court spun "a web of special conditions" in
    the hope that "if the defendant complied with the supervised
    release terms, he might have a chance to break the 'cycle of crime'
    that characterized his adult life."                   
    Id. at 535.
          Among these
    conditions were restrictions on living with or interacting with
    minors.      
    Id. In imposing
       these       conditions,   the   court     gave
    detailed, case-specific reasons for their imposition, explaining,
    "the sentence was driven by three salient considerations: the
    nature of the offense, the defendant's criminal history, and the
    defendant's    'egregious'        non-compliance        with   the   terms   of    his
    pretrial release."          
    Id. In addition
    to demonstrating that the
    conditions     were        related     to     the     defendant's     history     and
    characteristics, the court explained that the conditions "would
    promote the defendant's rehabilitation," "were intended to mitigate
    the risk of this particular defendant re-offending," and "promoted
    public safety."        
    Id. at 538-39.
                  We affirmed the challenged
    conditions,    holding       that     "the    court    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 comply with the terms of his pretrial
    release."    
    Id. at 539.
    -25-
    The Mercado court's careful explanation of its reasoning
    made    plain    the     conditions       were    reasonably      related    to    the
    defendant's history and characteristics, and to the goals of
    sentencing.        By contrast, the district court here offered no
    explanation whatsoever for the conditions imposed on Del Valle-
    Cruz, whose criminal history is not nearly as lengthy or as violent
    as that of the defendant in Mercado.                     Aside from failing to
    register, Del Valle Cruz has stayed out of trouble since 2003.
    While the Mercado court crafted its conditions to give
    the    defendant    "a    chance     to   break    the   'cycle   of   crime'     that
    characterized his adult life," 
    id. at 535,
    Del Valle-Cruz's adult
    history, though blemished, simply does not come close to resembling
    Mercado's.      Since moving to Puerto Rico, he has taken affirmative
    steps to turn his life around.                   According to his PSR, he has
    completed 90 credits of a BA in Computer Science, and at the time
    of his arrest, was employed by a newspaper as a telemarketer, while
    also working freelance as a computer repair technician.                            The
    conditions that were carefully reasoned (and amply explained) in
    Mercado do not serve the same purpose in this case.                         Mercado's
    criminal history showed little regard for the welfare of his
    children or for maintaining a healthy and nurturing family life.
    Del Valle Cruz, on the other hand, once lived successfully with his
    older    children,       and   his   schooling     and   employment    demonstrate
    increasing stability in recent years.
    -26-
    The   district   court   provided   us   no   clue    as   to   its
    reasoning, and our review of the record offers little to enlighten
    us.   Although the PSR recommends the conditions, it offers nothing
    in its recitation of the defendant's history or characteristics to
    justify them, and absent any basis in the record, their imposition
    appears to be arbitrary. We fail to see how prohibiting Del Valle-
    Cruz from living with his son and having a normal family life (that
    would involve at least some contact with minors) is related to
    either his offense of failing to register, or to his history and
    characteristics.
    Deprivation of Liberty
    Del Valle-Cruz also argues that the effect of these
    conditions would deprive him of his liberty interest in maintaining
    a relationship with his son.            We have frequently stated that
    conditions may not deprive a defendant of "more liberty than is
    reasonably     necessary."     
    Perazza-Mercado, 553 F.3d at 70
    .              The
    government points to Del Valle-Cruz's initial offense against a
    fifteen year old as justification for imposing the prohibition
    against contact with all minors, including his own son.                      The
    fallaciousness of this argument is indicated by the government's
    failure to explain why these conditions do not deprive Del Valle-
    Cruz of more liberty than is reasonably necessary.                Instead, the
    government relies on an escape hatch -- that Del Valle-Cruz can
    seek a modification of these conditions.
    -27-
    In Mercado, we affirmed similar conditions, saying "the
    conditions imposed by the district court do not comprise an
    outright ban on the defendant's ability to associate (or even live)
    with his minor children.      They merely require that his association
    with his children be pre-approved by the probation officer and take
    place in the presence of an adult familiar with his criminal
    
    history." 777 F.3d at 539
    .      However, as previously explained, the
    Mercado    court's    rationale     for   the    conditions       was    clear   and
    detailed, and grounded in concern over his extensive criminal
    history.    "[T]he court 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 comply with the terms of his pretrial
    release."10    
    Id. Because conditions
        that      would    impair   a     defendant's
    relationship with his child involve a very significant deprivation
    of liberty, they require a greater justification.                 See 
    Medina, 777 F.3d at 72
    . The explanation for the imposition of these conditions
    10
    Similarly, in United States v. Smith, 
    436 F.3d 307
    , 310 (1st
    Cir. 2006), we affirmed the imposition of a condition that
    prohibited a defendant from contact with his minor daughter "unless
    and until the Probate Court ordered otherwise." The condition was
    imposed after the defendant violated the terms of his supervised
    release by causing a disruption at two schools and a school
    district office, demanding to see his daughter. 
    Id. at 310.
    In
    imposing the condition, the Smith court expressed a concern that
    members of the public, including the daughter, needed to be
    protected from the defendant -- a concern not present here. 
    Id. at 312.
    -28-
    on Del Valle-Cruz is entirely missing, as is any indication in the
    record that his history and characteristics should evoke similar
    concerns.       The    fact      that    the    probation        officer    retains      the
    discretion to allow a father to contact his son cannot relieve the
    district court of the obligation to provide a reasoned explanation
    for giving the officer that power in the first place.                             We have
    previously stated that the imposition of these conditions by the
    court     appears      to       be    arbitrary.            Likewise,       Probation's
    recommendation        of   the    conditions         with   no    explanation     appears
    equally      arbitrary.          We     therefore      decline      the    government's
    invitation to punt by placing a probation officer between parent
    and child.
    Our    sister       circuits      have    refused      to    delegate    this
    authority to Probation absent some justification for imposing the
    condition.      The Third Circuit warned that courts should "proceed
    cautiously     in     imposing        any   condition       that    could       impact    [a
    defendant's]        parental         rights     absent        sufficiently        reliable
    supporting evidence."            United States v. Voelker, 
    489 F.3d 139
    , 155
    (3d   Cir.    2007).       In    Voelker,      the    court      vacated    a    condition
    restricting the defendant from associating with minors without the
    prior approval of a probation officer, and remanded for further
    findings of fact after determining that the district court had
    "delegated absolute authority to the Probation Office to allow any
    such contacts while providing no guidance whatsoever for the
    -29-
    exercise of that discretion."          
    Id. at 154.
          As a result of this
    delegation, the "[p]robation [o]fficer becomes the sole authority
    for deciding if [the defendant] will ever have unsupervised contact
    with any minor, including his own children, for the rest of his
    life."    
    Id. The Voelker
    court acknowledged that parental rights
    are not absolute, but stated that before restrictions can be placed
    on those rights "there must be sufficient evidence to support a
    finding   that    children     are   potentially    in   danger       from   their
    parents."    
    Id. (internal quotation
    marks omitted).
    The Fourth Circuit held a prohibition on contact with
    minors to be error when it affected a defendant's relationship with
    his family in the absence of any justification.             
    Worley, 685 F.3d at 408
    .   The Worley court held "if the evidence fails to show that
    the defendant poses a danger to his own child or loved one, a
    condition that limits access to those individuals is not reasonably
    necessary to protect those individuals or further the defendant's
    rehabilitation." 
    Id. Likewise, the
    Eighth Circuit modified a
    sentencing      condition    that    would   have   prevented     a    defendant
    convicted of receiving child pornography from having any contact
    with his daughter.11        
    Davis, 452 F.3d at 995
    .       Despite the sexual
    nature of the conviction, the Davis court found that the lower
    11
    It is worth noting that in both Worley and Davis, the court
    struck down conditions that, like Voelker, allowed at least some
    contact if first approved by a probation 
    officer. 685 F.3d at 407
    ;
    452 F.3d at 994.
    -30-
    court had failed to make an "individualized analysis" of the case;
    an analysis that would have revealed no evidence in the record that
    the defendant had ever sexually abused a child, or would pose a
    danger to his daughter.   
    Id. The court
    held that when a condition
    would interfere with a defendant's "constitutional liberty interest
    in raising his own child, the government may circumscribe that
    relationship only if it shows that the condition is no more
    restrictive than what is reasonably necessary."        
    Id. Finally, and
    most recently, the Tenth Circuit vacated a condition prohibiting a
    defendant from contact with minors without prior approval from
    probation, saying, "Given the importance of this liberty interest,
    special conditions that interfere with the right of familial
    association can do so only in compelling circumstances, . . . and
    it is imperative that any such restriction be especially fine-tuned
    to achieve the statutory purposes of sentencing."           
    Bear, 769 F.3d at 1229
    (internal quotation marks and citations omitted).              Given
    the facts of Del Valle-Cruz's case, we find the reasoning of our
    sister circuits persuasive in this instance.
    Our   review   of   the   record   reveals   no    showing    that
    conditions 13 and 15 are no more restrictive than reasonably
    necessary, and as stated above, there is nothing to indicate that
    Del Valle-Cruz poses a danger to his son.       We have found that the
    conditions are not reasonably related to either the offense, or to
    Del Valle-Cruz's history and characteristics.          At the same time,
    -31-
    these conditions prohibiting contact with, or residing with minors
    would interfere with his relationship with his son, and deprive him
    of far more liberty than is reasonably necessary.                  Even were the
    conditions    amended   to     allow   him    to    live   with    his   son,   the
    prohibition against contact with other minors would ensure that Del
    Valle-Cruz could not engage in the normal rhythms and pleasures of
    parenting, such as attending birthday parties, family gatherings,
    or school outings.      For those reasons, we vacate conditions 13 and
    15.
    III.
    Conclusion
    We dismiss Del Valle-Cruz's appeal of his conviction, as
    well   as   the   conditions    imposing      sex    offender     treatment,    and
    prohibiting working with or volunteering with minors.                    We vacate
    conditions 13 and 15, and we remand to the district court for re-
    sentencing consistent with this opinion.              The re-sentencing shall
    be limited to the terms of supervised release, and at that time,
    given the concerns we have expressed herein, the district court may
    revisit all of the special conditions.              United States v. Francois,
    
    715 F.3d 21
    , 34 (1st Cir. 2013) ("[P]recedent in this Circuit
    establishes that 'an appellate ruling invalidating a sentence . . .
    may implicate the trial judge's comprehensive, interdependent
    imposition of a penalty and thus require resentencing on all
    counts.'" (quoting United States v. Melvin, 
    27 F.3d 710
    , 712 (1st
    -32-
    Cir. 1994))).   At resentencing the district court should explain
    its reasons for the imposition of conditions and provide factual
    findings supported by the record.
    -Concurring Opinions Follows-
    -33-
    TORRUELLA, Circuit Judge, concurring, with whom THOMPSON,
    Circuit Judge, joins in the concurrence.          I join the court's
    opinion but write separately to note my continued and vehement
    disagreement with United States v. Morales-Cruz, 
    712 F.3d 71
    (1st
    Cir. 2013), a case that forecloses us from finding a miscarriage of
    justice with respect to the sex offender treatment condition.         See
    Slip. Op. at 12-13.   As I explained in my dissent in Morales-Cruz,
    a case remarkably similar to the one presently before us, "the
    district court's imposition of the special condition of supervised
    release -- participation in a sex offender treatment program with
    accompanying requirements -- [wa]s not reasonably related to the
    factors set forth in section 3553(a)(1)," nor was it "sufficiently
    related to one or more of the permissible goals of supervisory
    release." 
    Morales-Cruz, 712 F.3d at 76
    (Torruella, J., dissenting)
    (internal quotation marks and citations omitted). The same is true
    here.    The   district   court   inexplicably   failed   to   give   any
    explanation as to why it was imposing this condition on Del Valle-
    Cruz or how the condition was reasonably related either to the
    nature and circumstances of his failure to register offense or to
    his criminal history and characteristics. Yet, because of Morales-
    Cruz, this panel cannot remedy what, in my view, is a clear abuse
    of discretion and miscarriage of justice by the district court.
    Unfortunately, this is not an isolated occurrence. There
    is a disturbing trend in this circuit of district courts imposing
    -34-
    similar boilerplate conditions of supervised release on every
    defendant convicted of a failure to register charge under SORNA.12
    Even more troubling, these district courts often neglect to provide
    any rationale for the imposition of these harsh and exacting
    conditions; instead, they simply note that the conditions "are
    fairly standard" in these types of cases. See, e.g., United States
    v. Mercado, 
    777 F.3d 532
    , 535 (1st Cir. 2015) (approving of the
    district court's thorough explanation for why numerous conditions
    of supervised release were imposed but also quoting the district
    court as stating that the no contact with minors conditions "are
    fairly standard in sex offender cases").   Morales-Cruz implicitly
    endorses this practice through its faulty reasoning.     Thus, not
    only is Morales-Cruz wrong on the merits, but it also provides
    fodder for a disturbing and questionable practice. I strongly urge
    my colleagues to reconsider this erroneous decision.
    12
    Like Del Valle-Cruz, these conditions include invasive sex
    offender treatment and proscription against any contact with
    minors.
    -35-