As Corrected March 5, 2014.
As Amended May 12, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien, LLP was on brief, for appellant.
Marshal D. Morgan, Assistant United States Attorney, with whom Juan Carlos Reyes-Ramos, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Torruella, Thompson, and Barron, Circuit Judges.
BARRON, Circuit Judge.
Moisé s Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.
The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.
We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing.
Medina has a long criminal history, including robbery, attempted robbery, and (non-domestic) battery convictions. His only sex offense, and the source of his registration obligations under SORNA, is a 2008 conviction in Indiana for sexual battery of a minor. The pre-sentence report's description of the circumstances of the Indiana offense -- a description Medina did not dispute -- is very disturbing.
According to the report, Medina's three-year-old stepdaughter told his then-wife in 2007 that Medina had " 'peed' in her mouth." Medina's then-wife proceeded to ask her three other children if Medina had " had any inappropriate contact with them." The report stated that Medina's then-wife learned that Medina had " fondled" his seven-year-old stepdaughter on " three or four separate occasions."
Medina ultimately pled guilty to a single count of sexual battery of a minor. The conviction was based on Medina's abuse of the seven-year-old stepdaughter. Medina was sentenced to seven-and-a-half years in prison, of which he served three years before he was released on probation in July of 2011.
After release on probation, Medina lived in Indiana and held a job there. On April 29, 2012, however, he quit that job. Then, on May 3, he failed to report for a polygraph examination that the terms of his probation required. On May 11, he was suspended from Indiana's Sex Offender Treatment Program. Some time that same month, Medina moved to Puerto Rico.
On January 10, 2013, Medina was arrested in Puerto Rico for violating SORNA because he had failed to register there as a sex offender, as he was required to do as a consequence of his earlier Indiana conviction. See 18 U.S.C. § 2250(a). Two months later, on April 5, 2013, Medina entered into a plea agreement. The District Court accepted Medina's plea to the SORNA offense that same day. On July 8, 2013, the District Court sentenced Medina to thirty months of incarceration, followed by twenty years of supervised release.
Medina now appeals to this court. He challenges certain aspects of the supervised release portion of his sentence. We consider those challenges in turn.
Medina first argues that the District Court erred when it imposed a supervised release term of twenty years. Medina traces that error to the District Court's classification of his failure-to-register offense under SORNA as a " sex offense."
Under the Sentencing Guidelines, a conviction for a " sex offense" results in a recommended range for a term of supervised release that spans from a lower bound of the statutory minimum of five years to an upper bound of life. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2). But Medina argues that the guidelines do not actually treat a SORNA violation as a " sex offense." And thus Medina argues that, under the guidelines, the actual recommended term of supervised release for the SORNA offense is only the statutory minimum of five years, with no higher maximum term. See United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013).
The guidelines are not binding on the District Court. United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A mistaken application of the guidelines, however, can constitute a reversible sentencing error. That is because " [o]nly after a court has correctly calculated the applicable [guidelines recommendation] . . . can it properly exercise its discretion to sentence a defendant within or outside the applicable Guidelines range."
United States v. Millán-Isaac,
749 F.3d 57, 66 (1st Cir. 2014). Thus, Medina contends, we must vacate his supervised release sentence because the District Court mis-classified his SORNA offense as a " sex offense" and thus committed a guidelines calculation error.
In determining the appropriate standard of review, we note that Medina did object to the recommended term of supervised release set forth in the probation office's pre-sentence report. That report classified Medina's SORNA offense as a " sex offense." That report thus recommended that Medina receive a term of supervised release somewhere within a range from five years to life. Medina did not, however, press that same objection to the District Court at the sentencing hearing. And Medina failed to do so even though he had an opportunity to make that objection, and even though the District Court adopted the same guidelines calculation as the report.
In consequence, the government argues that we may review Medina's challenge to the proper classification of his SORNA offense only under the strict, plain error standard. Medina disputes that. For purposes of this appeal, however, we may assume the plain error standard applies without prejudicing Medina. And that is because Medina's challenge succeeds even under that more onerous standard.
The District Court set the term of supervised release after calculating the guidelines range for that term to be five years to life. That calculation was erroneous, as the government now concedes. The term " sex offense" in section 5D1.2(b) of the sentencing guidelines does not encompass a SORNA violation for failing to register as a sex offender. Our reasons for so concluding are the same as those set forth in the Seventh Circuit precedent that the government invokes in conceding the District Court's error.
See Goodwin, 717 F.3d at 519-20.
Further, the District Court's contrary interpretation of the meaning of " sex offense" was -- as the Seventh Circuit also held in Goodwin, and as the government also now concedes -- " (1) an error or defect (2) that is clear or obvious (3) affecting the defendant's substantial rights." Id. at 518. And while the government does not specifically make the further concession that the error " seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings," Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) -- the last prong of the plain-error test -- we believe that the District Court's error necessarily had that effect on the sentencing, and the government does not argue otherwise.
By mis-classifying Medina's SORNA offense, the District Court imposed a supervised release term that it believed fell within the guidelines-recommended range. In fact, however, the term imposed was four times longer than the term the guidelines actually recommend.
See Goodwin, 717 F.3d at 520-21 (explaining the proper calculation, and finding the fourth plain-error prong met under similar circumstances);
cf. United States v. Farrell, 672 F.3d 27, 37 (1st Cir. 2012) (finding the fourth prong met where the government did not argue it was not met, and where the district court imposed a sentence based on erroneous statutory minimum and guidelines determinations).
We thus conclude that the District Court did commit plain error. And, accordingly, we vacate and remand so that the District Court may take account of the guidelines' actual recommendation regarding the appropriate term of supervised release for Medina's SORNA offense.
Medina also challenges two conditions that he must obey for the duration of his supervised release term, however long it may turn out to be. In particular, Medina challenges a condition prohibiting him from possessing or accessing sexually stimulating materials and a condition mandating his compliance with penile plethysmograph testing if his sex offender treatment program requires such testing.
There are two basic kinds of supervised release conditions. The first kind are mandatory conditions. By operation of statute, mandatory conditions are automatically imposed in every case in which a defendant receives supervised release as part of his sentence. See 18 U.S.C. § 3583(d). The second kind are special conditions. These conditions are imposed at the discretion of the district court. See id. The two conditions that Medina challenges are of this latter kind.
Although district courts have significant discretion to impose special conditions of supervised release, that discretion is not unlimited. A district court may impose a special condition only if the district court first determines that the condition:
(1) is reasonably related to the factors set forth in [18 U.S.C. § ] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. § ] 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(a).
18 U.S.C. § 3583(d).
In this way, the governing statute directs district courts, before imposing a special condition, to take account of " the nature and circumstances of the offense and the history and characteristics of the defendant," id. § 3553(a)(1), the need " to afford adequate deterrence to criminal conduct," id. § 3553(a)(2)(B), the need " to protect the public from further crimes of the defendant," id. § 3553(a)(2)(C), and the need " to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," id. § 3553(a)(2)(D). By requiring consideration of these factors, the statute ensures that district courts will impose a special condition only if the ...