United States v. Roberto Cruz-Rivera

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1325
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO CRUZ-RIVERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cr-00160 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED MAY 17, 2023 — DECIDED JULY 20, 2023
____________________
Before RIPPLE, SCUDDER, and LEE, Circuit Judges.
RIPPLE, Circuit Judge. Roberto Cruz-Rivera was convicted
of failing to register as a sex offender, in violation of 18 U.S.C.
§ 2250(a). The district court sentenced him to forty-one
months’ imprisonment and five years of supervised release.
Mr. Cruz-Rivera now challenges one aspect of his sentence.
He submits that the district court erred in imposing a discre-
tionary condition of supervised release that allows a proba-
tion officer, with the assistance of law enforcement, to search
2 No. 22-1325
his person and property upon reasonable suspicion that he
has violated a condition of supervised release or has commit-
ted other unlawful conduct.
We conclude that the district court did not err in imposing
the challenged supervised release condition. We therefore af-
firm the judgment of the district court.
I
A
Mr. Cruz-Rivera was convicted of first-degree rape and
first-degree assault in New York in 2001 after he violently at-
tacked two women who suffered from a mild mental disabil-
ity. He had stabbed both women and raped one woman. He
was released from prison for those offenses in October 2015.
Because of the rape conviction, he was required to register as
a sex offender under the Sex Offender Registration and Noti-
fication Act (“SORNA”), 34 U.S.C. § 20901 et seq.
Between September 2017 and March 2020, Mr. Cruz-Ri-
vera lived and worked in Indiana. During this time, he was
employed by a staffing agency and worked throughout Indi-
anapolis, including at the Convention Center, Lucas Oil Sta-
dium, the JW Marriott Hotel, Butler University, and an ele-
mentary school. He also was convicted of two felonies—re-
sisting law enforcement and auto theft—in Indianapolis dur-
ing that time.
Mr. Cruz-Rivera never registered as a sex offender in In-
diana.
B
A grand jury indicted Mr. Cruz-Rivera on one count of
failing to register as a sex offender, in violation of 18 U.S.C.
No. 22-1325 3
§ 2250(a), between September 15, 2017, and March 14, 2020.
Mr. Cruz-Rivera chose to proceed pro se in the district court.
The district court conducted a bench trial and found him
guilty.
Before his sentencing hearing, the Probation Office pre-
pared a Presentence Investigation Report (“PSR”) in which it
recommended the following condition of supervised release:
You shall submit to the search by the probation
officer of your person, vehicle, office/business,
residence, and property, including any com-
puter systems and hardware or software sys-
tems, electronic devices, telephones, and Inter-
net-enabled devices, including the data con-
tained in any such items, whenever the proba-
tion officer has a reasonable suspicion that a vi-
olation of a condition of supervision or other
unlawful conduct may have occurred or be un-
derway involving you and that the area(s) to be
searched may contain evidence of such viola-
tion or conduct. Other law enforcement may as-
sist as necessary. You shall submit to the seizure
of contraband found by the probation officer.
You shall warn other occupants these locations
1
may be subject to searches.
1 R.284 ¶ 87(m).
4 No. 22-1325
The PSR explained that, “[d]ue to the nature of the instant of-
fense and the defendant’s criminal history, this condition
2
[wa]s recommended to protect society.”
Mr. Cruz-Rivera objected to this proposed condition of su-
pervised release. He contended that the condition, which al-
lows search and seizure “without a search warrant supported
by probable cause,” violated his Fourth Amendment right “to
3
be free from unreasonable search and seizure.” He objected
in particular to “[a] blanket justification for the search of elec-
tronics, electronic communications, and their data,” noting
that “[t]he instant offense did not involve[] the use of comput-
ers, electronic devices, telephones, internet enabled devices,
and their data, nor [wa]s the nature of the offense related to
the use of computers, electronic devices, telephones, internet
4
enabled devices, and their data.” He stated that he did not
“object to the search of his person if there is reasonable suspi-
cion of evidence that could be obtained indicating a violation
5
of the conditions of supervised release.”
The Probation Office, citing U.S.S.G. § 5D1.3(b), re-
sponded as follows:
Search and seizure is undoubtably important
for public safety purposes in monitoring offend-
ers following their release into the community.
It is a condition of supervised release that is
2 Id.
3 R.235 at 1.
4 Id. at 2, 4.
5 Id. at 4.
No. 22-1325 5
imposed on all monitored offenders. Searches
are not conducted without probable cause and
only after approval from the Deputy Chief
6
and/or Chief Probation Officer.
At the sentencing hearing, the district court overruled
Mr. Cruz-Rivera’s objection to the search condition. The court
stated:
You object to the condition of supervised release
that concerns certain seizure of electronic de-
vices, electronic communication, and all elec-
tronic data without a search warrant supported
by probable cause. Okay. And I’m going to
overrule the objection, because when you’re on
probation or supervised release, you’re under a
different standard.
And under the guidelines, Section 5D1.3(b),
the Court may impose conditions of supervised
release to the extent that such conditions are
reasonably related to the nature and circum-
stances of the offense and the history and char-
acteristics of the defendant, the need for the sen-
tence imposed to afford adequate deterrence to
criminal conduct, the need to protect the public
from further crimes, the need to provide the de-
fendant with needed vocational, medical, cor-
rectional treatment in the most effective man-
ner.
6 R.284 at 25.
6 No. 22-1325
And it says that the conditions the Court im-
pose should involve no greater deprivation of
liberty than is reasonably necessary for the pur-
poses set forth above and are consistent with
any pertinent policy statements issued by the
Sentencing Commission. So the search and sei-
zure of your computer devices is reasonable in
this case because of the nature of your convic-
tion for failing to register as a sex offender, and
the searches that would not be conducted with-
out probable cause. So they would—the Proba-
tion Department would have to have probable
cause to search your devices; okay? It will be a
condition that you not have—I don’t know if we
have the condition of child pornography or an-
ything like that. Is that one of the conditions?
(Off the record.)
Okay. All right. So if there was some suspicion
or probable cause that you were involved in
some criminal activities, then they would be
able to do a search; okay? But if there’s—they
would have to have some sort of probable
cause, some reason, some suspicion, some rea-
sonable suspicion, in order to exercise any
7
searches on your devices.
7 Sentencing Tr. at 17:9–18:18.
No. 22-1325 7
The court then accepted the PSR “for the record under seal
with the changes and notifications that the Court requested to
8
be made to the report.”
The court imposed a sentence of forty-one months’ impris-
onment and five years of supervised release. This sentence re-
flected “the seriousness of the offense, promote[d] respect for
9
the law, and provide[d] just punishment.” The court ex-
plained that it was ordering Mr. Cruz-Rivera to comply with
the additional conditions of supervised release listed in the
PSR “[t]o promote respect for the law, prevent recidivism,
10
and aid in adequate supervision.” The court read the condi-
tions of supervised release into the record so that Mr. Cruz-
11
Rivera could “understand them in the future.” The court
read the search condition as it appeared in the PSR and stated
that it was imposing this condition “due to the nature of the
12
instant offense” and “to protect society.”
The district court explained that it had considered the
18 U.S.C. § 3553(a) factors in deciding Mr. Cruz-Rivera’s sen-
tence. Regarding the instant offense and his criminal history,
the court first noted that he “was convicted of a very violent
rape in 2001,” and, “[w]hile previously incarcerated, he
8 Id. at 25:25–26:3.
9 Id. at 43:24–25.
10 Id. at 44:21–22.
11 Id. at 45:7–8.
12 Id. at 48:9–24.
8 No. 22-1325
13
incurred a conviction for assault of a correctional officer.”
After being released from prison, Mr. Cruz-Rivera lived in
Ohio, Michigan, Indiana, and Florida and admitted that “he
14
did not register as a sex offender in any of these states.” He
had been arrested on four separate occasions between 2017
and 2020. He was arrested twice for failure to register as a sex
offender, but those charges were later dismissed. He also was
arrested and convicted of felony auto theft in September 2018
and felony resisting law enforcement in November 2018. At
the time he committed the instant offense, he was on proba-
tion for his resisting law enforcement conviction. In addition,
Mr. Cruz-Rivera had two open warrants for the charge of sex
offender registry violation. He also had a pending case in
Georgia for giving a false name and theft.
Turning to Mr. Cruz-Rivera’s personal characteristics, the
15
court detailed his “very tragic and unfortunate childhood.”
The court also indicated that it had considered his mitigation
arguments, including his lack of youthful guidance, the as-
sault he suffered in the Clark County Jail, his anxiety and
stress, and his strained relationship with his son due to being
absent and incarcerated. The court, however, emphasized the
seriousness of Mr. Cruz-Rivera’s offense and the need to pro-
tect society:
[Y]ou tell me now that you understand your re-
sponsibility to register as a sex offender, and
that you’re going to accept your responsibility
13 Id. at 49:13–14, 16–17.
14 Id. at 49:22–25.
15 Id. at 50:18.
No. 22-1325 9
for your unintended violation of the statute, and
that you do intend to maintain your sex of-
fender registration once you’re released from
prison, but the Court does agree with the gov-
ernment regarding the very seriousness of this
offense.
There’s a very important reason why sex of-
fenders are required to register. Had you been a
registered sex offender, you would not have
been hired by a school. So you’ve got to—
you’ve got to register, because we have to pro-
tect—it’s just about protecting society. Hope-
fully, you will never, ever, ever do another vio-
lent or even nonviolent sex offense, but you’re
16
required to register.
The district court entered a final judgment that listed the
conditions of supervised release with which Mr. Cruz-Rivera
was required to comply. The judgment contained the search
condition—as it appeared in the PSR and was read into the
record at the sentencing hearing—as Condition 13.
Mr. Cruz-Rivera timely appealed.
II
DISCUSSION
A
We review contested conditions of supervised release for
an abuse of discretion. See United States v. Dodds, 947 F.3d 473,
477 (7th Cir. 2020) (per curiam). This is not an entirely
16 Id. at 53:17–54:5.
10 No. 22-1325
toothless standard. “[A]lthough a sentencing judge has wide
discretion in determining the conditions of supervised re-
lease, this discretion is not without limits.” United States v.
Morgan, 987 F.3d 627, 633–34 (7th Cir. 2021) (cleaned up)
(quoting United States v. Adkins, 743 F.3d 176, 193 (7th Cir.
2014)). Under 18 U.S.C. § 3583(d), a condition of supervised
17
release must meet three requirements.
First, the condition must be reasonably related to the rele-
vant § 3553(a) factors—namely, “(1) the defendant’s offense,
history and characteristics; (2) the need for adequate deter-
rence; (3) the need to protect the public from further crimes of
the defendant; and (4) the need to provide the defendant with
treatment.” United States v. Kappes, 782 F.3d 828, 845 (7th Cir.
2015) (quoting United States v. Angle, 598 F.3d 352, 360–61 (7th
Cir. 2010)) (citing 18 U.S.C. § 3583(d)(1)).
Second, the condition “cannot involve a greater depriva-
tion of liberty than is reasonably necessary to achieve the goal
17 U.S.S.G. § 5D1.3(b) provides that a court may impose discretionary con-
ditions of supervised release as long as those conditions
(1) are reasonably related to (A) the nature and circum-
stances of the offense and the history and characteristics
of the defendant; (B) the need for the sentence imposed to
afford adequate deterrence to criminal conduct; (C) the
need to protect the public from further crimes of the de-
fendant; and (D) the need to provide the defendant with
needed educational or vocational training, medical care,
or other correctional treatment in the most effective man-
ner; and (2) involve no greater deprivation of liberty than
is reasonably necessary for the purposes set forth above
and are consistent with any pertinent policy statements
issued by the Sentencing Commission.
No. 22-1325 11
of deterrence, incapacitation, and rehabilitation.” Id. (quoting
United States v. Goodwin, 717 F.3d 511, 522 (7th Cir. 2013)) (cit-
ing 18 U.S.C. § 3583(d)(2)).
Third, the condition “must be consistent with any perti-
nent statement that the United States Sentencing Commission
issues.” Id. (citing 18 U.S.C. § 3583(d)(3)).
In order to ensure that our review is meaningful, a sen-
tencing court must justify discretionary conditions of super-
vised release “by an adequate statement of reasons, reasona-
bly related to the applicable § 3553(a) factors.” Id. at 839, 845
(citing United States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014)).
“All discretionary conditions … require findings.” Id. at 846
(citing Bryant, 754 F.3d at 445). A sentencing judge “consider-
ing a condition of supervised release must ‘make an independ-
ent judgment … of the appropriateness of the recommended
conditions’ by referring to the defendant’s conduct and char-
acter rather than on the basis of generalizations about the de-
fendant’s crime and criminal history.” Morgan, 987 F.3d at 634
(quoting United States v. Siegel, 753 F.3d 705, 716–17 (7th Cir.
2014)).
At the same time, in reviewing the district court’s state-
ment of reasons, we must “take careful note of context and the
practical realities of a sentencing hearing.” Kappes, 782 F.3d at
856 (quoting United States v. Gary, 613 F.3d 706, 709 (7th Cir.
2010)). The sentencing judge “need not address every factor
‘in checklist fashion, explicitly articulating its conclusions re-
garding each one’” or “give a speech about each condition.”
Id. at 845–46 (quoting United States v. Shannon, 518 F.3d 494,
496 (7th Cir. 2008)). We have explained that “sentencing
judges ‘need not belabor the obvious’ when confronted with
an objection where ‘anyone acquainted with the facts would
12 No. 22-1325
have known without being told why the judge had not ac-
cepted the argument’”; however, “where the reasons for con-
ditions are less obvious, sentencing judges must address di-
rectly objections raised by defendants.” United States v. Moose,
893 F.3d 951, 960 (7th Cir. 2018) (quoting Kappes, 782 F.3d at
856). In short, “[e]xplanations need not be longwinded, but
the judge must offer some explanation for appellate review,
as deferential as that review may be.” Id. (citing United States
v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014)).
Finally, the requirement that a district court adequately
justify a discretionary condition of supervised release is sub-
ject to a harmless error analysis. See Morgan, 987 F.3d at 634;
Kappes, 782 F.3d at 846; Siegel, 753 F.3d at 713. A district court’s
failure to give reasons for an imposed condition is harmless
when the consistency of that condition with the statutory sen-
tencing factors is plain. See United States v. Farmer, 755 F.3d
849, 854–55 (7th Cir. 2014); Siegel, 753 F.3d at 713.
B
Applying these principles to our examination of the record
in the present case, we conclude that the district court did not
abuse its discretion in imposing Condition 13 on Mr. Cruz-
Rivera. The district court made adequate findings supporting
a conclusion that Condition 13 is consistent with the statutory
factors for conditions of supervised release. Most fundamen-
tally, as we discuss in the following paragraphs, the district
court’s analysis conforms to all the statutory criteria we iden-
tified earlier.
1
First, as required by § 3583(d)(1), the condition is reasona-
bly related to the relevant § 3553(a) factors. The district court
No. 22-1325 13
explained that it imposed the search condition in this case be-
cause “of the nature of [Mr. Cruz-Rivera’s] conviction for fail-
18
ing to register as a sex offender” and “to protect society.”
Although a more fulsome explanation certainly would have
been optimal, a comprehensive review of the sentencing hear-
ing reveals the district court’s strong, overarching concern
that the total sentence imposed put an end to a pattern of
criminal behavior that was both extensive and varied. The
court knew that it was dealing with a recidivist. It detailed
Mr. Cruz-Rivera’s criminal history, including his failure to
register as a sex offender in multiple states over multiple
years, his violation of the terms of his probation in Indiana,
and his conviction for felony resisting law enforcement. This
criminal history demonstrates his persistent reluctance to rec-
ognize and comply with his legal responsibilities, including
the requirements of supervised release. As the Government
points out, failing to register as a sex offender is “essentially a
felony offense of failing to comply with a legal requirement of
19
his release from his sex-offense conviction.” The court made
clear that the objective of the sentence was to put an end to
this pattern of criminal behavior: “[W]hen you get out this
time, we want this to be it, you never go back again. No car
20
theft, no fleeing police, nothing. This should be it; okay?”
Based on Mr. Cruz-Rivera’s criminal history, the district
court articulated that Condition 13 was necessary to deter him
from future unlawful conduct and to protect the public.
18 Sentencing Tr. at 18:4–6, 48:23–24.
19 Appellee’s Br. 21.
20 Sentencing Tr. at 60:3–5.
14 No. 22-1325
Allowing probation officers, with the assistance of law en-
forcement, to search Mr. Cruz-Rivera and his property, in-
cluding his electronic devices and data, on the basis of reason-
able suspicion will help ensure that he complies with his legal
obligations in the future. And the need to ensure Mr. Cruz-
Rivera’s compliance with these obligations, including his reg-
istration as a sex offender, to protect the public is clear. The
court correctly emphasized the seriousness of Mr. Cruz-Ri-
vera’s failure-to-register offense. In enacting SORNA, Con-
gress “establishe[d] a comprehensive national system” of reg-
istration “[i]n order to protect the public from sex offenders
and offenders against children” and “in response to the vi-
cious attacks by violent predators.” 34 U.S.C. § 20901.
Mr. Cruz-Rivera is required to register as a sex offender be-
cause he brutally raped a mentally disabled woman. Because
he did not register, he was hired to work throughout Indian-
apolis, in positions he should not have been permitted to
hold. It is particularly concerning, as the district court noted,
that he had been permitted to work at an elementary school.
Mr. Cruz-Rivera, relying on United States v. Goodwin, 717
F.3d 511 (7th Cir. 2013), contends that his history and charac-
teristics do not justify the imposed search condition. He em-
phasizes that none of his offenses involved contraband or the
use of a computer. Goodwin, however, does not help him. In
Goodwin, we vacated a supervised release condition, imposed
on a defendant who was convicted of failing to register as a
sex offender, that was notably broader than the search condi-
tion imposed in this case. There, the supervised release con-
dition required the defendant to submit to warrantless
searches by the probation officer with no requirement of sus-
picion, to install filtering software on his computer, to allow
the probation officer unannounced access to his computer,
No. 22-1325 15
and to allow the probation officer to conduct periodic, unan-
nounced examinations of his computer equipment. See Good-
win, 717 F.3d at 514–15. We explained that we were “at a loss
to see how this broad search and seizure authority [wa]s con-
nected to [the defendant’s] offense, history, and personal
characteristics, or how it [wa]s reasonably necessary to fur-
thering the deterrence, public protection, and rehabilitative
goals articulated in 18 U.S.C. § 3583(d)(2).” Id. at 523. Alt-
hough we considered the computer-related terms of the con-
dition separately, we did not say that supervised release con-
ditions relating to electronic devices are permissible only if
the defendant has committed crimes using electronic devices.
See, e.g., United States v. Johnson, 542 F. App’x 516, 519–20 (7th
Cir. 2013). Rather, we merely concluded that, because there
was no obvious connection between the defendant’s offenses
and the use of a computer, the district court needed to provide
a justification for the broad condition. See Goodwin, 717 F.3d
at 523. Here, it was well within the district court’s discretion
to determine that Mr. Cruz-Rivera’s persistent conduct and
his disregard for the safety of the community justified Condi-
tion 13, including the requirement that he submit to searches
of his electronics and electronic data if, but only if, the officer
has reasonable suspicion that these articles were implicated
in a suspected violation of his supervisory release. This pro-
vision was designed to assist the probation officers in ensur-
ing that Mr. Cruz-Rivera complied with his legal require-
ments and did not present a risk of harm to the public.
2
Second, as required by § 3583(d)(2), Condition 13 does not
involve a greater deprivation of liberty than is reasonably nec-
essary to achieve the § 3553(a) sentencing goals. Mr. Cruz-
16 No. 22-1325
Rivera contends that a “[c]omplete suspension of the consti-
tutional right to be free from unreasonable searches and sei-
zures is undoubtedly a ‘greater deprivation of liberty’ than
21
required.” However, as the district court noted in response
to Mr. Cruz-Rivera’s objection, when an offender is “on pro-
bation or supervised release,” he is “under a different stand-
22
ard.” The court stated it was reasonable to impose Condition
13 on Mr. Cruz-Rivera in this case because searches cannot be
conducted without suspicion of unlawful conduct. The court
initially misspoke regarding what standard of suspicion
would be required for a search, saying “probable cause” be-
23
fore correcting to “reasonable suspicion.”
That Condition 13 requires probation officers, and any as-
sisting law enforcement, to have reasonable suspicion of un-
lawful conduct before conducting a search is key. To assist
sentencing judges, both § 3583(d) and the United States Sen-
tencing Guidelines provide a non-exhaustive list of discre-
tionary conditions of supervised release to guide a district
court in fashioning the appropriate supervisory conditions in
a particular case. Both § 3583(d) and the Guidelines provide
for a condition of supervised release requiring the offender to
submit to searches on the basis of reasonable suspicion. Sec-
tion 3583(d) expressly provides that a court
may order, as an explicit condition of super-
vised release for a person who is a felon and re-
quired to register under the Sex Offender
21 Appellant’s Br. 21.
22 Sentencing Tr. at 17:13–14.
23 Id. at 18:7–8, 17–18.
No. 22-1325 17
Registration and Notification Act, that the per-
son submit his person, and any property, house,
residence, vehicle, papers, computer, other elec-
tronic communications or data storage devices
or media, and effects to search at any time, with
or without a warrant, by any law enforcement
or probation officer with reasonable suspicion
concerning a violation of a condition of super-
vised release or unlawful conduct by the per-
son, and by any probation officer in the lawful
discharge of the officer’s supervision functions.
Cf. 18 U.S.C. § 3563(b)(23). The Sentencing Guidelines also
provide “standard” and “special” supervised release condi-
tions. See U.S.S.G. § 5D1.3(c)–(d). The Guidelines explain that
the “special” supervised release conditions are “recom-
mended in the circumstances described” and “may otherwise
be appropriate in particular cases.” U.S.S.G. § 5D1.3(d). One
“special” supervised release condition recommended for “sex
offenses” requires
the defendant to submit to a search, at any time,
with or without a warrant, and by any law en-
forcement or probation officer, of the defend-
ant’s person and any property, house, resi-
dence, vehicle, papers, computer, other elec-
tronic communication or data storage devices or
media, and effects upon reasonable suspicion
concerning a violation of a condition of super-
vised release or unlawful conduct by the de-
fendant, or by any probation officer in the law-
ful discharge of the officer’s supervision func-
tions.
18 No. 22-1325
U.S.S.G. § 5D1.3(d)(7)(C). However, failure to register as a sex
offender under 18 U.S.C. § 2250 does not constitute a “sex of-
fense” for purposes of this special condition. See U.S.S.G.
24
§ 5D1.3(d)(7); U.S.S.G. § 5D1.2 cmt. n.1.
We also previously have rejected, under plain error re-
view, a Fourth Amendment challenge to a supervised release
condition authorizing searches when there was reasonable
suspicion that the defendant violated a condition of super-
vised release. See Kappes, 782 F.3d at 860–61. We explained
that the Supreme Court has held that, in the context of proba-
tion, “the Fourth Amendment balance of ‘the degree to which
[a search of a probationer’s residence] intrudes upon an indi-
vidual’s privacy and[] … the degree to which it is needed for
the promotion of legitimate governmental interests[]’ re-
quires ‘no more than reasonable suspicion to conduct a search
of th[e] probationer’s house.’” Id. at 861 (quoting United States
v. Knights, 534 U.S. 112, 119, 121 (2001)).
Relying on United States v. Morgan, 987 F.3d 627 (7th Cir.
2021), Mr. Cruz-Rivera contends that Condition 13 involves a
greater deprivation of liberty than required because he also is
subjected to visits from his probation officer at reasonable
times and places. In Morgan, we concluded that the district
court had not explained why a condition that authorized a
probation officer to conduct searches on the basis of reasona-
ble suspicion was necessary in addition to a condition that au-
thorized a probation officer to visit the defendant and confis-
cate any contraband in plain view. See id. at 635. We did not
hold in Morgan that the imposition of both search conditions
24 We discuss the specific application of this exception in this case in Sec-
tion II.B.3, infra.
No. 22-1325 19
always results in a greater deprivation of liberty than neces-
sary. After a conscientious reading of Mr. Cruz-Rivera’s PSR,
the district court was entitled to conclude, very reasonably,
that the circumstances surrounding his criminal history made
the imposition of the contested condition an important ingre-
dient in its effort to stop Mr. Cruz-Rivera’s antisocial behav-
25
ior.
3
Mr. Cruz-Rivera’s contention that Condition 13 fails the
third criterion of § 3583(d) because it is inconsistent with
statements issued by the United States Sentencing Commis-
sion is also unavailing. Cf. Siegel, 753 F.3d at 708 (“Logically,
[this requirement] is not applicable to discretionary condi-
tions already listed in the guidelines ….”). Mr. Cruz-Rivera
25 Mr. Cruz-Rivera’s reliance on United States v. Farmer, 755 F.3d 849 (7th
Cir. 2014), here is also misplaced. In Farmer, as in Goodwin, we vacated a
condition of supervised release that required the defendant to submit to
searches by a probation officer without any requirement of suspicion because
we were “at a loss to see how this broad search and seizure authority [wa]s
connected to [the defendant’s] offense, history, and personal characteris-
tics, or how it [wa]s reasonably necessary to furthering the deterrence,
public protection, and rehabilitative goals articulated in 18 U.S.C.
§ 3583(d)(2).” Farmer, 755 F.3d at 854 (quoting Goodwin, 717 F.3d at 523).
Condition 13, requiring reasonable suspicion for a search, is narrower than
the condition imposed in Farmer. See id. (citing 18 U.S.C. § 3583(d); U.S.S.G.
§ 5D1.3(d)(7)(C)) (explaining that the search condition imposed was
“broader even than the explicit searches that the sentencing guidelines au-
thorize for the purpose of monitoring sex offenders: the latter provision
requires reasonable suspicion that the defendant has violated a condition
of supervised release as a prerequisite for the search, whereas the search
condition to which Farmer [wa]s subject require[d] no suspicion, reason-
able or otherwise, to trigger a search”).
20 No. 22-1325
contends that imposing Condition 13 is inconsistent with
U.S.S.G. § 5D1.3(d)(7)(C), which he understands as stating
that “a defendant convicted [of a] SORNA violation should
26
not receive the search condition.” He is mistaken. It is true
that the Guidelines recommend the search condition in
§ 5D1.3(d)(7)(C) for “sex offenses,” which is defined to ex-
clude his failure-to-register offense, but the Guidelines pro-
vide that such a condition “may otherwise be appropriate in
particular cases.” U.S.S.G. § 5D1.3(d). Condition 13 therefore
is consistent with this provision. See Kappes, 782 F.3d at 845
n.5 (explaining that a condition violates § 3583(d)(3) only if it
is “inconsistent with a pertinent policy statement”). Mr. Cruz-
Rivera also submits that there is a conflict between 18 U.S.C.
§ 3583(d) and U.S.S.G. § 5D1.3(d)(7). We cannot accept this ar-
gument. There is no conflict between these two provisions.
The Guidelines do not expressly recommend the search con-
dition for failing to register under SORNA, but the statute
provides that a court may impose the search condition for
such offenders. The district court therefore was not required
to address this difference between 18 U.S.C. § 3583(d) and
U.S.S.G. § 5D1.3(d)(7) when it imposed Condition 13 on
Mr. Cruz-Rivera.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
26 Appellant’s Br. 23.