United States v. Garcia , 872 F.3d 52 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2046
UNITED STATES OF AMERICA,
Appellee,
v.
ROGER GARCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Stahl and Lynch, Circuit Judges.
John T. Ouderkirk, Jr. on brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, and
Stephen G. Dambruch, Acting United States Attorney, on brief for
appellee.
September 22, 2017
HOWARD, Chief Judge. Defendant-Appellant Roger Garcia
challenges the district court's imposition of supervised release
conditions, after the district court vacated his original sentence
under Johnson v. United States, 135 S. Ct. 2551 (2015). Those
release conditions require him to "participate in a sex offender
specific evaluation," and restrict his contact with minor
children. Perceiving no abuse of discretion, we affirm.
I.
In 2010, Garcia pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The district court imposed a fifteen-year mandatory minimum
sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e). More than five years later, in the wake of Johnson,
which invalidated the relevant portion of the ACCA, Garcia moved
to vacate his sentence. The government agreed that this relief
was appropriate.
The district court granted Garcia's motion, vacated his
prior sentence, and conducted a resentencing hearing. The court
sentenced Garcia to time served, which meant that he would be
promptly released, but went on to impose certain special conditions
of supervised release, related to Garcia's history of sex offenses.
These special conditions had not been included in the original
sentence.
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Garcia's criminal history was indeed substantial. In
1980, he was convicted of rape and sentenced to three years in
prison. That same year, he was charged with aggravated sexual
assault on a child, but ultimately pled guilty to assault resulting
in bodily injury and received a one-year sentence. In 1985, Garcia
was convicted of sexual assault in the second degree on a teenage
victim and sentenced to prison for a year. In 1991, he was
convicted of second degree child molestation based on two separate
incidents at elementary schools. He received an incarcerative
sentence of eighteen months. Garcia's criminal conduct during
this time period was not limited to sex offenses. He also compiled
convictions for vehicle theft, robbery by assault, entering a
building with felonious intent, and possession of marijuana.
While Garcia had not been convicted of any sex offense
since 1991, his recent criminal history remained significant. He
had been convicted of domestic assault and possession of marijuana
in 2000, as well as distribution of heroin in 2007.
At the resentencing hearing, the district court provided
the following explanation for imposing the supervised release
conditions:
[Y]ou have a history of hands-on sex offenses
in your past. I recognize that these offenses
are dated, but everything that I know and that
the Probation Office is aware of in terms of
the information about sex offenders is that
there is a propensity to reoffend. This is
all designed to . . . both protect the public
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and to keep you out of trouble. And I think
that your chances of not offending are
enhanced by having the evaluation I’m talking
about in these conditions as well as not being
put into a situation where you might offend.
. . . I’ve . . . left a couple of standard
conditions off of this list that are more
onerous . . . because I don’t think that given
the fact that your offenses are dated and that
it’s not the offense of conviction here, I
don’t think they're specifically called for.
II.
Despite characterizing defense counsel's objections to
the supervised release conditions as "somewhat disjointed," the
government "assumes arguendo . . . that review is for . . . abuse
of discretion." Because Garcia's claim fails even under this
favorable assumption, we will apply the abuse of discretion
standard without deciding whether Garcia is entitled to that
standard of review. See United States v. York, 357 F.3d 14, 19
(1st Cir. 2004).
Our inquiry is guided by 18 U.S.C. § 3583(d) and U.S.S.G.
§5D1.3(b). These provisions "require that special conditions
cause no greater deprivation of liberty than is reasonably
necessary to achieve the goals of supervised release, and that the
conditions be reasonably related both to these goals and to the
nature and circumstances of the offense and the history and
characteristics of the defendant." United States v. Pabon, 819
F.3d 26, 30 (1st Cir. 2016) (citation omitted). The relevant goals
"include the need to deter the defendant from further criminal
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conduct; the need to protect the public from further crimes by the
defendant; and the effective educational, vocational, medical, or
other correctional treatment of the defendant." Id. (citation
omitted). While "the district court is required to provide a
reasoned and case-specific explanation for the conditions it
imposes," we may affirm even without an adequate explanation so
long as the court's reasoning may be inferred from the record.
Id. at 30-31 (citation omitted).
On appeal, Garcia focuses narrowly on the conditions (1)
requiring him to "comply[] with a sex offender evaluation"; and
(2) restricting his contact with individuals under the age of
eighteen. According to Garcia, the district court abused its
discretion in imposing these conditions because they were "not
applicable to [his] offense" of conviction, "not based on factual
evidence in the record," and largely predicated on "outdated"
convictions.
The first of these contentions is easily dispatched.
Indeed, we have recently held that the imposition of conditions
nearly identical to those at issue here "may be reasonable even
where the present offense is not sexual in nature." Id. at 31.
We went on to specify that conditions requiring sex offender
treatment and those restricting contact with minors may be
appropriate "despite the conviction not being a sex offense . . .
where the intervening time between a distant sex offense and the
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present conviction is marked by substantial criminal activity."
Id. This is because "subsequent criminal conduct, whether or not
of a sexual nature, indicates an enhanced risk of recidivism."
Id.; see also United States v. DaSilva, 844 F.3d 8, 12 (1st Cir.
2016) (affirming similar conditions where defendant's last sex
offense was ten years earlier but he had three subsequent criminal
convictions "in the intervening years"); United States v. Mercado,
777 F.3d 532, 538 (1st Cir. 2015) (holding that ten-year-old sex
offense was rendered "highly relevant" by "the defendant's
persistent criminal involvement over the intervening years").
In the present case, despite expressly acknowledging
that Garcia's sex offense convictions were "dated," the district
court determined that the challenged conditions were necessary "to
both protect the public and to keep [Garcia] out of trouble."
While the court did not explicitly mention Garcia's significant
criminal history since his last sex offense, its reliance on this
factor is readily inferable from the record. For one thing, we
have clearly and repeatedly reaffirmed the relevance of such
intervening convictions. See DaSilva, 844 F.3d at 12; Pabon, 819
F.3d at 31; Mercado, 777 F.3d at 538. Moreover, the district court
was acutely aware of Garcia's criminal history, which had been
laid out meticulously in the Presentence Investigation Report
("PSR") and incorporated into the court's calculation of the
applicable guideline sentencing range. Regardless of whether the
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district court's explanation could have been more fulsome, it bears
marked similarity to reasoning that we have previously found
sufficient. See Mercado, 777 F.3d at 538 (finding it "nose-on-
the-face plain that the court's sentencing rationale was both
plausible and sufficient" based on district judge's explanation
"that the supervised release term was designed not only to help
the defendant in abating his criminal tendencies but also to
curtail future . . . violations").
Garcia takes issue with the district court's statement
that "everything that I know and that the Probation Office is aware
of in terms of the information about sex offenders is that there
is a propensity to reoffend." As an initial matter, the court's
statement on this point finds direct support in Supreme Court
precedent. See, e.g., Smith v. Doe, 538 U.S. 84, 103 (2003) ("The
risk of recidivism posed by sex offenders is frightening and high."
(citation omitted)). More importantly, immediately after making
this general statement, the court "went on to explain that [the
relevant] conditions were intended to mitigate the risk of this
particular defendant re-offending." Mercado, 777 F.3d at 539.
This individualized consideration is evidenced by the court's
decision that certain "standard" conditions, namely those
involving polygraph testing and searches, were not "specifically
called for" in this case.
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The primary authority relied on by Garcia, United States
v. Del Valle-Cruz, 785 F.3d 48 (1st Cir. 2015), is readily
distinguishable. The defendant in that case had a single eighteen-
year-old sex offense on his record. See id. at 60. For the prior
twelve years, he had "stayed out of trouble," and had no criminal
convictions other than failure to register as a sex offender. Id.
at 61. Garcia's situation is markedly different. Far from
involving a single isolated incident, his criminal history evinces
a pattern of sexual misconduct towards minors. See Pabon, 819
F.3d at 32 (noting "repeated[]" nature of defendant's molestation
of minor). Indeed, the PSR indicates that Garcia committed four
sex crimes, three of which involved young victims. And Garcia has
not "stayed out of trouble" since the last of these convictions.
Instead, he has continued to engage in serious criminal misconduct,
culminating in a conviction for distributing heroin just three
years before his guilty plea in this case.
Beyond the diverging personal histories of the
defendants, there are other considerations clearly distinguishing
the present case for Del Valle-Cruz. First, the conditions imposed
in the latter case "implicate[d] a fundamental constitutional
liberty interest" because the restrictions on the defendant's
contact with minors applied to his own son. Del Valle-Cruz, 785
F.3d at 56-57. No such concern is implicated here, as Garcia's
children are all adults. Moreover, the district court in Del
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Valle-Cruz imposed the conditions "without any justification or
explanation." Id. at 56. Here, by contrast, the district court
provided a revealing, if not expansive, window into its rationale.
In short, our ruling in Del Valle-Cruz was predicated on the unique
circumstances of that case, and we have in other cases
distinguished this precedent for reasons similar to those outlined
above. See DaSilva, 844 F.3d at 12-13; Pabon, 819 F.3d at 32.
Finally, Garcia argues that there is no basis for his
special conditions because they were not imposed at his original
sentencing. We disagree. The Supreme Court made clear in Pepper
v. United States, 562 U.S. 476, 490-91 (2011), that district courts
have wide discretion in determining what factors to consider at
resentencing. There is "[n]o limitation . . . on the information
concerning the background, character, and conduct" of the
defendant that the district court may "receive and consider for
the purpose of imposing an appropriate sentence," id. (alteration
in original) (quoting 18 U.S.C. § 3661), particularly as it relates
to the need to "protect the public from further crimes of the
defendant," id. at 491 (quoting 18 U.S.C. § 3553(a)(2)). In light
of Garcia's four prior sex offenses, and the fact that he was
released nine years earlier than he would have been under his
original sentence, it was certainly not an abuse of discretion for
the district court to conclude that the conditions were necessary
"to both protect the public and to keep [Garcia] out of trouble."
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Because the supervised release conditions at issue are
well-grounded in Garcia's criminal history, as well as in the goals
of public protection and rehabilitation, the district court did
not abuse its discretion in imposing those conditions.
III.
For the forgoing reasons, we AFFIRM Garcia's sentence.
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