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United States v. Mercado

United States Court of Appeals, First Circuit

February 6, 2015

JORGE MERCADO, Defendant, Appellant

Page 533


Olin Thompson, Assistant Federal Public Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before Selya, Circuit Judge, Souter,[*] Associate Justice, and Lipez, Circuit Judge.


Page 534

SELYA, Circuit Judge.

Sentencing courts have broad discretion in setting conditions of supervised release -- but broad discretion is not unbridled discretion. Defendant-appellant Jorge Mercado complains that the sentencing court went too far in this case and acted arbitrarily in setting the conditions of his supervised release. Concluding that the defendant's jeremiad is unconvincing, we affirm his sentence.


The defendant pleaded guilty to one count of failure to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). The SORNA registration requirement applied due to the defendant's interstate travel following a state-court conviction in 2002 for indecent assault arising out of the rape of a 15-year-old girl. The defendant was 31 years old at the time of the offense.

At sentencing, the district court set the guideline sentencing range at 30 to 37 months, based in part on a criminal history category of VI (the highest available). In the process, the court observed that the defendant had what may have been one of the most profuse criminal histories the court had ever seen. This history spanned a period of more than 20 years and included over 45 infractions running the gamut from drug offenses to property crimes to violent crimes (such as domestic assault and domestic battery). Additionally, the court noted that while awaiting trial, the defendant had repeatedly violated the terms of his pretrial release. These violations included, among other things, continuing to fail to register under SORNA, failing to appear in state court following an arrest for driving without a license, testing positive for cocaine use, and no fewer than ten instances of failing to comply with location restrictions.

When all was said and done, the district court imposed a top-of-the-range incarcerative sentence of 37 months, to be followed by a five-year term of supervised release. The court explained that the

Page 535

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. The court ascribed particular importance to supervised release, spinning a web of special conditions, see U.S.S.G. § 5D1.3(d), and suggesting 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.[1]

Among the special conditions imposed by the court, four are challenged on appeal. One such condition requires the defendant to participate in a sex-offender treatment program " as directed by the probation officer" and to submit to periodic polygraph testing at the probation officer's discretion to ensure compliance. The remaining three conditions circumscribe the defendant's contact with minors in various ways. One forbids the defendant from having any contact with a child under the age of 18 without the prior approval of the probation officer and the presence of an approved adult who is aware of the defendant's criminal history. Another prohibits the defendant from living with a child under the age of 18 unless the probation officer first approves. The last condition bars the defendant from working or volunteering in any situation in which there is access to children unless authorized in advance by the probation officer.

The defendant argued at sentencing that none of these conditions was supported by the record and that his lone conviction for a sex offense was irrelevant because it occurred more than ten years earlier. In the defendant's view, his more recent malefactions did not justify a conclusion that he presented a danger to children (or anyone else, for that matter). The district court overruled the defendant's objections. With respect to the sex-offender treatment condition, it stated:

[S]ex offender treatment is as directed by the Probation Office. It's not required. If the probation officer determines it's appropriate, the Probation Office has the discretion to require [the defendant] to attend that treatment and the testing ...

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