United States v. Jose Ramon Pulido-Nolazco

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13912
Non-Argument Calendar
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D.C. Docket No. 4:17-cr-10002-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RAMON PULIDO-NOLAZCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 19, 2018)
Before MARCUS, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Jose Ramon Pulido-Nolazco appeals his 63-month sentence for one count of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). For
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the first time on appeal, Pulido-Nolazco argues that the district court committed
plain error by imposing as a special condition of his supervised release the
requirement that he participate in and contribute to the cost for a sex-offender
treatment program. After careful review, we affirm.
We review the imposition of special conditions of supervised release for
abuse of discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009).
However, when a party did not raise a sentencing issue before the district court, we
review under the plain error standard. United States v. Lange, 862 F.3d 1290,
1293 (11th Cir.), cert. denied, 138 S. Ct. 488 (2017). To establish plain error, the
defendant must show (1) an error, (2) that is plain, and (3) that affected his
substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007).
If the defendant satisfies these conditions, we may exercise our discretion to
recognize the error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. Where the explicit language of a statute or
rule does not specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly resolving it. United
States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015).
The district court may order special conditions that: (1) are reasonably
related to the nature and circumstances of the offense, history and characteristics of
the defendant, the need for adequate deterrence, the need to protect the public, and
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the need to provide the defendant with needed training, medical care, or
correctional treatment in an effective manner; (2) involve no greater deprivation of
liberty than is reasonably necessary; and (3) are consistent with any pertinent
policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d)(1)-
(3); see also U.S.S.G. § 5D1.3(b). The special conditions need not be related to
each applicable § 3553(a) factor; rather, each factor is an independent
consideration to be weighed. Moran, 573 F.3d at 1139.
The Sentencing Guidelines recommend that the court order, as a special
condition of supervised release, that the defendant participate in a mental health
treatment program “[i]f the court has reason to believe that the defendant is in need
of psychological or psychiatric treatment.” U.S.S.G. § 5D1.3(d)(5). The district
court must consider what conditions best accomplish the purposes of sentencing.
Moran, 573 F.3d at 1139. Special conditions of supervised release need not be
related to the particular offense imposed by the district courts. United States v.
Bull, 214 F.3d 1275, 1277-78 (11th Cir. 2000) (upholding imposition of anger
management treatment for conviction for unauthorized use of credit card).
Although a condition of supervised release should not unduly restrict a defendant’s
liberty, a condition is not invalid simply because it limits a probationer’s ability to
exercise constitutionally protected rights. Moran, 573 F.3d at 1139.
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In Moran, the defendant was convicted of being a felon in possession of a
firearm. Id. at 1135. The court imposed a special order requiring the defendant to
participate in a sex-offender treatment program based on the defendant’s prior
convictions for sex offenses, which occurred ten years prior to the present offense.
Id. at 1136. The defendant objected that the trial court’s sentence imposed special
conditions which were not related to his present conviction, were not supported by
his history and characteristics, and unnecessarily infringed upon his liberty. Id. at
1139. Reviewing for abuse of discretion, we affirmed the district court’s special
order because (1) it addressed a prior sex offense, even if it was not related to the
offense of conviction, and (2) there was no evidence that the program was unduly
burdensome, since the defendant was not required to continue treatment if the
treatment providers did not believe it was necessary. Id. at 1139-40.
The district court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence. 18 U.S.C. § 3553(c). The
sentencing judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decision-making authority. Rita v. United States, 551 U.S. 338, 356 (2007).
Here, the district court did not commit plain error by ordering Pulido-
Nolazco to participate in a sex-offender treatment program. As the record reveals,
the district court gave sufficient reasons for its order, and the order was justified by
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relevant sentencing factors, including Pulido-Nolazco’s prior convictions for sex
offenses. The court said at sentencing that it was imposing its sentence “to reflect
the seriousness of the crime, to promote respect for the law, to provide just
punishment for the offense, and to protect the public from future crime by the
Defendant.” Though Pulido-Nolazco is correct that 18 U.S.C. § 3553(c) and Rita
require the court to generally state its reasons for imposing its sentence, neither §
3553(c) nor Rita involved a specialized condition of supervised release. Moreover,
binding precedent does not clearly impose a requirement on the court to state on
the record why each special condition ordered was appropriate. See 18 U.S.C. §
3553(c); Rita, 551 U.S. 338. Under plain error review, the district court’s
statement more than fulfilled the court’s requirements under § 3553(c) and Rita.
Further, to the extent the court needed to provide specific reasons on the
record for requiring Pulido-Nolazco to participate in a sex-offender treatment
program, the court did so. At the sentencing hearing, the district court adopted the
findings of the PSI, which identified that Pulido-Nolazco had been previously
convicted of sex offenses and recommended that Pulido-Nolazco be placed into a
sex-offender treatment program. Pulido-Nolazco did not pose any objections to
the PSI, and did not object to the court’s adoption of the PSI’s findings. The court
announced that it was imposing its sentence “after considering” the PSI, and said it
was adopting the recommendation in “Part G of the PSI about sex offender
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treatment.” The court, by making repeated and explicit references to the PSI
during sentencing, demonstrated that it was imposing the special order based on
the findings in the PSI, including Pulido-Nolazco’s prior convictions for sex
offenses and repeated failures to abide by the mandatory reporting requirements for
convicted sex offenders. By discussing relevant sentencing factors and referring to
the factual findings and the recommendations in the PSI, the court did not err,
much less plainly err, and set forth enough to demonstrate that it had a reasoned
basis for exercising its decision-making authority. Rita, 551 U.S. at 356.
In addition, the court’s order was reasonably related to relevant § 3553(a)
factors, including Pulido-Nolazco’s rehabilitation, the need to protect the public
from Pulido-Nolazco’s further crimes, and Pulido-Nolazco’s characteristics and
history, including his prior convictions for sex offenses and for failing to abide by
the sex offender registration requirements. 18 U.S.C. § 3553(a). While Pulido-
Nolazco argues that his prior convictions are too temporally remote to be relevant,
and that he has not shown signs of recidivism, his arguments are refuted by our
clear precedent. In Moran, the district court had imposed similar restrictions based
solely on the defendant’s decade-old prior convictions, and we upheld these
restrictions under the abuse of discretion standard of review. 573 F.3d 1132, 1135,
1139-1140. Moreover, Pulido-Nolazco was convicted twice in the past ten years
(and had an outstanding warrant from 2015 at the time of his arrest) for failing to
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abide by the sex-offender registration requirements. Although these convictions
were not sexual offenses per se, they are factors that negate Pulido-Nolazco’s
argument that his prior offense is too remote to be considered for special
conditions. Moran, 573 F.3d at 1139. As for his claim that the restrictions here are
unduly restrictive, the district court here, like in Moran, reasonably limited the
amount of prejudice to Pulido-Nolazco by only requiring him to continue treatment
for as long as his treatment providers consider it necessary. Id. Thus, based on
established precedent, Pulido-Nolazco has not shown that the district court erred,
or plainly erred, by ordering him to participate in a sex-offender treatment
program.
AFFIRMED.
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