United States v. Velez-Luciano , 814 F.3d 553 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1738
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON VÉLEZ-LUCIANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Barron and Stahl, Circuit Judges,
and Sorokin,* District Judge.
Mark W. Shea, with whom Shea and LaRocque, LLP was on brief,
for appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, were on brief, for appellee.
February 25, 2016
_____________________
* Of the District of Massachusetts, sitting by designation.
SOROKIN, District Judge. After pleading guilty to one
count of possession of child pornography, appellant Nelson Vélez-
Luciano (“Vélez-Luciano”) received a sentence of ten years in
prison followed by fifteen years of supervised release. The terms
of his supervised release included multiple conditions, some of
which he challenges in this appeal. Because Vélez-Luciano’s plea
agreement included an applicable waiver of appeal provision, a
heightened standard of review applies. With one exception, Vélez-
Luciano cannot satisfy this standard for the challenged
conditions. We thus vacate that one condition, affirm the rest,
and remand the case to the district court for resentencing, limited
solely to the vacated condition.
I. Background
A. Facts
Because this appeal follows a conviction via guilty
plea, we draw the facts from the plea colloquy and sentencing
materials. United States v. Whitlow, 714 F.3d 41, 42 (1st Cir.
2013). In July 2007, Vélez-Luciano began working for Dorado,
Puerto Rico as a Music Teacher and the Director of the Municipal
Band. In early 2012, Nereida Jiménez, the mother of a seventeen-
year-old female student of Vélez-Luciano referred to as “JRJ,”
complained to police that Vélez-Luciano had requested that JRJ
send him nude photos of herself, and had sexually abused JRJ.
Vélez-Luciano had been living with Jimenez and JRJ for
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approximately seven months at that point, and on March 21, 2012,
Jimenez obtained an Order of Protection and Eviction against Vélez-
Luciano.
Law enforcement investigated the allegations and
discovered that Vélez-Luciano began providing special treatment to
JRJ at least as far back as January 2010, and began having sexual
contact with her -- including intercourse -- in May 2010, when she
was fifteen. Vélez-Luciano had sex with JRJ multiple times since,
including during JRJ’s lunch periods. Around this time, JRJ began,
at Vélez-Luciano’s request, taking photos of herself and sending
them to him. JRJ estimated that she sent approximately sixty
photos, ranging from partially nude to fully nude, to Vélez-
Luciano. Investigators found three images of JRJ, all focused on
her genitals, on Vélez-Luciano’s computer. Additionally, Vélez-
Luciano had sexually explicit conversations, via both text
messaging and Facebook messaging, with JRJ. He also directed JRJ
to view pornographic websites so that she could learn what Vélez-
Luciano wanted to do with her, but the record indicates that she
did not look at the web sites.
The investigation further revealed that Vélez-Luciano
abused a second female, a fifteen-year-old referred to as “VMCH.”1
1
Veléz-Luciano objected to the inclusion -- as not
sufficiently proven -- of facts about VMCH. At sentencing, Vélez-
Luciano’s counsel pressed this objection, which the district court
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In 2008, when she was eleven, Vélez-Luciano recruited VMCH, who
has a mental age three years behind her actual age, into the band.
He began sexually abusing her in 2010, when she was fourteen.
These encounters took place in the music band room.
Additionally, Vélez-Luciano encouraged VMCH to view a pornographic
website containing animated cartoons engaging in sexual conduct
with each other, and she did so. Vélez-Luciano wanted VMCH to
learn from the cartoons so that she would do with him what the
cartoon characters did with each other. Finally, Vélez-Luciano
engaged in a threesome with both VMCH and JRJ in the music band
room, providing them each with baton twirler outfits and directing
them on what to do, culminating in sexual relations.
B. Prior Proceedings
On April 25, 2012, a grand jury in the District of Puerto
Rico indicted Vélez-Luciano on two counts of producing child
pornography, in violation of 18 U.S.C. § 2251(a), and one count of
possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). On May 10, 2013, pursuant to an agreement with
the government, he pled guilty to the possession count; the
government subsequently dismissed the two production counts. The
deal recommended a ten-year term of imprisonment, and contained no
other agreements or recommendations regarding the sentence. It
overruled. On appeal, Vélez-Luciano has not challenged this
ruling. Accordingly, we consider the facts pertaining to VMCH.
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said nothing about the duration or conditions of Vélez-Luciano’s
supervised release, but did recite the statutory maximum period of
supervised release. It also contained a waiver of appeal
provision, which read: “The defendant hereby acknowledges that
should the Court sentence him or her to the agreed-upon specific
sentence, or agreed-upon sentencing range, the defendant agrees to
waive and permanently surrender his or her right to appeal the
judgment and sentence in this case.”
At a change of plea hearing before a magistrate judge
that same day, the magistrate judge reviewed the parameters of the
agreement -- including the conduct alleged, the rights waived
pursuant to the agreement, and the recommended sentence -- with
Vélez-Luciano. The magistrate judge specifically informed Vélez-
Luciano that he faced a term of at least five years of supervised
release following his incarceration. At another part of the
colloquy, the magistrate judge focused specifically on making sure
that Vélez-Luciano understood the appellate waiver.2 Upon
2 THE COURT: The law provides a [sic] generally that
defendants in a federal criminal case
have the right to appeal any sentence the
Court imposes.
Are you aware of that right?
VÉLEZ-LUCIANO: Yes.
THE COURT: But I want to point out to you that, in
your plea agreement, at paragraph 18, you
agree to waive your right to appeal both
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completing the required change of plea colloquy, the magistrate
judge found that Vélez-Luciano was competent to plead guilty, that
Velez-Luciano was aware of the nature of the charged conduct and
the impact of pleading guilty, and that the plea was knowing and
voluntary. He issued a Report and Recommendation that the district
court accept Vélez-Luciano’s plea, and the district court did so
on June 3, 2013.
On June 11, 2014, the Probation Office issued its
Presentence Investigation Report (“PSR”). Among other content,
the PSR recommended that the district court impose twenty-two
special conditions of supervised release applicable to sex
offenders. It did not provide any specific reasoning supporting
these recommendations. Vélez-Luciano did not object to any of
these conditions in his sentencing memorandum.
the judgment and the sentence in your
case, provided the court accepts your
plea agreement and sentences you
according to its recommendations.
Are you aware of that right?
VÉLEZ-LUCIANO: Yes.
THE COURT: And do you voluntarily agree to waive
your right to appeal both your conviction
and your sentence if the Court so accepts
your plea agreement?
VÉLEZ-LUCIANO: Yes.
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Vélez-Luciano’s sentencing hearing occurred the next
day. After handling preliminary matters, the district court
imposed the ten-year term of imprisonment recommended by the plea
agreement. The district court, without explanation, also
sentenced Vélez-Luciano to fifteen years of supervised release,
with several conditions attached. These conditions included both
the thirteen standard conditions of supervised release and the
special conditions of supervision that the PSR recommended.
Vélez-Luciano did not object to any of these conditions at the
sentencing hearing.
C. This Appeal
Vélez-Luciano raises two general issues on appeal.
First, he argues that the waiver of appeal provision in his plea
agreement does not cover an appellate challenge to his supervised
release conditions. Next, he challenges, broadly speaking, four
categories of these conditions: sexual offender treatment;
internet access; contact with minor children; and access to
pornography. After oral argument, the government informed us via
a Federal Rule of Appellate Procedure 28(j) letter (“Rule 28(j)
letter”) that it would not seek to impose a particular type of
treatment, penile plethysmograph (“PPG”) testing,3 on Vélez-
Luciano.
3
“PPG testing involves placing a pressure-sensitive
device around a man’s penis, presenting him with an array of
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Because the applicability of Vélez-Luciano’s waiver of appeal
provision impacts our analysis of the challenged conditions, we
address that issue first. We then proceed seriatim through the
challenged conditions.
II. Scope of Vélez-Luciano’s Waiver of Appeal
Vélez-Luciano argues that, because he agreed to waive
only a challenge to his prison term -- and not to the conditions
of his supervised release -- his waiver does not cover this appeal.
He does not argue, nor could he, that the district court failed to
comply with the waiver’s condition precedent -- it handed down the
same ten-year prison sentence the agreement recommended. Rather,
he asserts that the conditions of supervised release stand apart
from the “sentence” to which he agreed to waive his appellate
rights.
This claim fails. We have repeatedly “ha[d] no trouble
concluding that the word ‘sentence’ in [a plea agreement’s] waiver
encompasse[d] every component of the sentence, including the term
of supervised release and its attendant conditions, thus bringing
the instant action within the waiver’s reach.” United States v.
Santiago, 769 F.3d 1, 7 (1st Cir. 2014); accord United States v.
Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015) (“We have
sexually stimulating images, and determining his level of sexual
attraction by measuring minute changes in his erectile responses.”
United States v. Del Valle-Cruz, 785 F.3d 48, 53 n.4 (1st Cir.
2015) (internal quotation marks omitted).
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frequently stated that conditions and terms of supervised release
are part of a defendant’s sentence.”); United States v. Rojas, 780
F.3d 68, 69 (1st Cir. 2015) (“[B]ecause . . . [defendant’s] appeal
of the supervised release conditions is an appeal of the ‘judgment
and sentence’ in his case, this appeal falls within the scope of
the waiver.”) (internal citation omitted); see United States v.
Brown, 235 F.3d 2, 4 (1st Cir. 2000) (“A supervised release term
is an integral part of a sentence, separate from and in addition
to immurement.”); see also 18 U.S.C. § 3583(a) (“The court . . . may
include as a part of the sentence a requirement that the defendant
be placed on a term of supervised release after
imprisonment . . . .”) (emphasis added). Per these holdings, this
appeal falls within the scope of Vélez-Luciano’s waiver.
III. Enforceability of Vélez-Luciano’s Waiver
Having determined that this appeal falls within the
scope of Vélez-Luciano’s waiver, we must next determine the
waiver’s enforceability. Santiago, 769 F.3d at 7. “The general
rule is that when knowing and voluntary, an appellate waiver is
generally enforceable, absent an indication that the waiver would
work a miscarriage of justice.” Id. (citing, inter alia, United
States v. Teeter, 257 F.3d 14, 24-26 (1st Cir. 2001)). “To
successfully invoke the miscarriage of justice exception, a
garden-variety error will not suffice, rather there must be, at a
bare minimum, an increment of error more glaring than routine
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reversible error.” Del Valle-Cruz, 785 F.3d at 54 (quoting
Santiago, 769 F.3d at 8). The exception requires case-by-case
analysis, but is applied stringently. See Teeter, 257 F.3d at 26.
Finally, we note that, even absent an explanation for a sentence
from the district court, we can often infer the reasoning from the
record. United States v. Perazza-Mercado, 553 F.3d 65, 75 (1st
Cir. 2009).
We first turn to whether Vélez-Luciano waived knowingly
and voluntarily. Vélez-Luciano asserts that, because his agreed-
upon sentence only mentioned a prison term and forfeiture, and not
supervised release, he did not knowingly waive his right to appeal
the supervised release conditions. Both the record and our past
decisions undermine this argument.
In United States v. Ruiz, the Supreme Court instructed
that “the law ordinarily considers a waiver knowing, intelligent,
and sufficiently aware if the defendant fully understands the
nature of the right and how it would likely apply in general in
the circumstances—even though the defendant may not know the
specific detailed consequences of invoking it.” 536 U.S. 622, 629
(2002). And we have relied on Ruiz to hold as “inconsequential”
a plea agreement’s failure to enumerate the conditions of
supervised release the defendant faced. United States v.
Rodríguez-Santana, 554 F. App’x 23, 25 (1st Cir.
2014)(unpublished).
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Vélez-Luciano’s circumstances nestle into this space.
Although not specifically part of the recommended sentence, the
plea agreement -- which Vélez-Luciano signed and initialed -- noted
that supervised release of at least five years was part of the
maximum sentence for possession of child pornography. Further,
the magistrate judge at Vélez-Luciano’s change of plea hearing
specifically informed him that “[s]upervised release is a term of
supervision [he would] have to serve after [he was] released from
prison,” and Vélez-Luciano acknowledged understanding this.
Vélez-Luciano’s recognition of the prospect of supervised release,
even without awareness of the specific conditions the district
court intended to impose, suffices to make his waiver knowing and
voluntary. Having established this element of the Teeter test, we
now examine the individual categories of special conditions to
determine if enforcement of any of them constitutes a miscarriage
of justice.
A. Internet Restrictions (Conditions 17, 18, and 23)4
4
Condition 17 reads: “The defendant shall not have
access to the Internet at his place of residence, unless approved
by the U.S. Probation Officer.” Condition 18 reads: “The defendant
shall not possess or use a computer, cellular telephone, or any
other device with internet accessing capability, at any time and/or
place without prior approval from the probation officer. This
includes access through an internet service provider, bulletin
board service, e-mail system, or any public or private computer
network system. The defendant shall permit routine inspections of
his computer system or any other computer system maintained in his
possession to include hard drive and any media storage materials,
in order to confirm adherence to this condition. The inspection
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We begin with Conditions 17, 18, and 23, which preclude
Vélez-Luciano’s internet access without a probation officer’s
prior approval. Because the internet played a role in Vélez-
Luciano’s offense conduct, he cannot demonstrate the requisite
miscarriage of justice necessary to overcome his appellate waiver.
We have recognized the propriety of robust internet
restrictions “where (1) the defendant used the internet in the
underlying offense; (2) the defendant had a history of improperly
using the internet to engage in illegal conduct; or (3) particular
and identifiable characteristics of the defendant suggested that
such a restriction was warranted.” United States v. Stergios, 659
F.3d 127, 134-35 (1st Cir. 2011) (quoting Perazza-Mercado, 553
F.3d at 70).
Vélez-Luciano meets these criteria. The record shows
that he: exchanged sexually explicit Facebook messages with JRJ
and VMCH; suggested pornographic sites for them to view; convinced
VMCH to actually view the pornographic site; groomed VMCH’s
behavior with the suggested website; and possessed sexually
explicit pictures of JRJ on his computer. This is not the case of
a defendant who “has no history of impermissible internet use” and
shall be no more intrusive than is necessary to ensure compliance
with third party risk, who may be impacted by this condition.”
Condition 23 reads: “If the defendant possesses a cellular
telephone, the same shall be restricted to incoming/outgoing calls
and voice messaging system [sic]. No additional features shall be
allowed without prior approval from the probation officer.”
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for whom “the internet was not an instrumentality of the offense
of conviction.” Cf. Perazza-Mercado, 553 F.3d at 69 (vacating a
categorical ban on home internet usage when the offense conduct,
carried out wholly without use of the internet, involved sexually
abusing a minor child in the defendant’s care). Given these facts,
Vélez-Luciano cannot demonstrate a miscarriage of justice in the
district court’s imposition of the internet restrictions.5
B. Pornography Ban (Condition 12)6
5 We note that, as the internet becomes completely
interwoven with the fabric of daily living -- including education,
treatment, employment, and communication with both the government
or commercial entities -- limitations on, or exclusion from access
to, the internet may require greater justification and precision.
Otherwise, such restrictions may undermine the rehabilitative
purpose of sentencing, see 18 U.S.C. § 3553(a)(2)(D), and the
district court’s obligation to “impose a sentence sufficient, but
not greater than necessary, to comply with the purposes of”
sentencing. Id. at § 3553(a). Nonetheless, in light of the
applicable standard of review and the particular facts presented,
we need not address these considerations here.
6 Condition 12 reads: “The defendant shall not view, use,
possess, purchase, distribute and/or subscribe to any form of
pornography, erotica or sexually stimulating visual or auditory
material, electronic media, computer programs or services
including but not limited to videos, movies, pictures, magazines,
literature, books, or other products depicting images of nude
adults or minors in asexually [sic] explicit manner. The defendant
shall not enter any location where pornography, erotica or sexually
stimulating visual or auditory material can be accessed, obtained
or viewed, including adult pornography shops, strip and/or topless
clubs, massage parlors, or any business were [sic] the primary
function is to provide pornography or sexual services. The
defendant shall refrain from accessing any material that relates
to the activity in which the defendant was engaged in committing
the instant offense, namely child pornography.”
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We likewise affirm Condition 12, which effectively
imposes a complete ban on pornography. Because both Vélez-Luciano
and the government rely on Perazza-Mercado in crafting their
arguments, we begin our analysis there. Perazza-Mercado presented
the question of “whether a ban on pornographic material as a
condition of supervised release for an individual convicted of
sexual contact with a minor constitutes [plain] error when there
is no evidence that possession of such material has any
relationship to the offense of conviction and there is no evidence
in the record that the [defendant] previously possessed such
materials.” 553 F.3d at 74 (emphasis added). We held that it
did. Id. at 76. We particularly emphasized that lack of
“suggestion in the PSR or at sentencing that [Perazza-Mercado] had
abused or even possessed pornography in the past, much less that
it contributed to his offense or would be likely to do so in the
future.” Id.7
That factual dynamic is not present here. The record
reveals that Vélez-Luciano suggested that JRJ view pornography so
7
In a pair of subsequent cases, we have expanded
somewhat Perazza-Mercado’s holding to situations where defendants
have a history of possessing pornography. See United States v.
Medina, 779 F.3d 55, 63-64 (1st Cir. 2015); United States v. Ramos,
763 F.3d 45, 64 n.28 (1st Cir. 2014). However, we have never
expanded Perazza-Mercado so far as to strike down an unobjected-
to ban on pornography as a condition of supervised release when
the record revealed a link between the offense conduct and the
defendant’s viewing of pornography.
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that she could perform the sexually explicit conduct Vélez-Luciano
desired. Additionally, he encouraged VMCH to view a pornographic
website of animated cartoons as a way of communicating to VMCH
what he wanted to do with her and JRJ, and VMCH did so.
Undoubtedly, Vélez-Luciano had seen these sites before
recommending them to his victims. These facts indicate that Vélez-
Luciano used pornography to further conduct related to his offense.
Moreover, he also possessed sexually explicit photos of JRJ which
she created at his direction. This shows that his possession of
pornography was “reasonably related to the nature and
circumstances of the offense and to [his] history and
characteristics,” which in turn demonstrates the condition’s
requisite “grounding in the present . . . record.” United States
v. Ramos, 763 F.3d 45, 64 (1st Cir. 2014).
Because pornography played a material role in Vélez-
Luciano’s conduct, the ban reasonably relates to the nature and
circumstances of his offense.8 The record supports this
deprivation of liberty as a means of preventing Vélez-Luciano from
using a key tool of his abuse. Accordingly, Vélez-Luciano has not
8
We also note that the fact that Vélez-Luciano abused
young girls from early adolescence until close to the age of
majority, combined with the use of internet pornography to groom
his victims, defeats any risk of overbreadth under the applicable
standard of review.
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demonstrated the requisite miscarriage of justice sufficient to
overcome his waiver.9
C. Minor Children Restrictions (Conditions 6, 7, 8, 9, and
16)10
Vélez-Luciano next challenges Conditions 6, 7, 8, 9, and
16, which effectively require prior approval from a probation
9 Vélez-Luciano’s brief raised an additional ground for
invalidating Condition 12, that it “does not provide fair warning
as to what constitutes pornography or erotica due to inherent
ambiguity in those terms.” This excerpt is the entirety of Vélez-
Luciano’s analysis on this point. As we have repeatedly
admonished, “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived. It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel’s work, create the ossature for the argument, and put flesh
on its bones.” Ledesma-Sánchez v. Lynch, 797 F.3d 131, 134 (1st
Cir. 2015) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)).
10 Condition 6 reads: “The defendant shall not
participate in any volunteer activity or be involved in any
children’s or youth organization or any group that would bring
him/her into close contact with a child or children under the age
of 18, unless prior approval of the U.S. Probation Officer [sic].”
Condition 7 reads: “The defendant shall not reside, be in the
company, date or socialize with a child or children below the ages
of 18, unless previously approved by the U.S. Probation Officer
and after a third party risk [sic] has been duly signed.”
Condition 8 reads: “The defendant shall not enter, loiter or work
within one hundred (100) feet of any area or event frequented by
people under the age of 18 including, but not limited to: schools,
day care centers, playgrounds, arcades, public swimming pools or
beaches, unless approved in advance by the U.S. Probation Officer.”
Condition 9 reads: “The defendant shall have no personal contact
with the victim and/or minors under the age of 18, through mail,
letters, telephone, communication, audio or visual, computer,
electronic devices, visits, social networking sites, or third
parties, unless approved in advanced [sic] by the U.S. Probation
Officer. The only exception in this condition relies in the
incidental contact in normal commercial life with minors.”
Condition 16 reads: “The defendant shall not engage in a specified
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officer before interacting with, or even going near, children under
the age of eighteen. He claims these conditions are overbroad,
without basis in the record, and unreasonably restrictive of his
ability to earn a livelihood.
In his brief, Vélez-Luciano offered multiple arguments
generally opposing the minor children restriction, and each of
them are unavailing. First, he incorrectly argues that Conditions
6-9 are occupational restrictions, subject to the more-stringent
U.S.S.G. § 5F1.5 standard.11 These conditions, except for part of
Condition 8, do not bar him from any particular occupation at all
-- they simply pertain to his association with minors. Further,
while Condition 16, and part of Condition 8, do limit his
occupation, business, or profession bearing a reasonable [sic]
direct relationship to the conduct constituting the offense.
Specifically, the defendant shall not work with children under the
age of 18, or hold a job that gives him authority over potential
victims, gives him access to vulnerable populations or places him
in setting [sic] near a school or playground. Any employment must
be approved in advance by the Probation Officer, who will make an
assessment of the job placement and set employment restrictions
based on the Sex Offender Management Procedures Manual. The
defendant shall consent to third party disclosure any [sic]
employer or potential employer.”
11 To impose such restrictions, a district court must
find both: “(1) a reasonably direct relationship existed between
the defendant’s occupation, business, or profession and the
conduct relevant to the offense of conviction; and (2) imposition
of such a restriction is reasonably necessary to protect the public
because there is reason to believe that, absent such restriction,
the defendant will continue to engage in unlawful conduct similar
to that for which the defendant was convicted.” U.S.S.G.
§ 5F1.5(a).
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occupational options, the record supports the district court’s
imposition of these conditions. Vélez-Luciano met both JRJ and
VMCH through his professional oversight of the band at school, and
used this access to gain influence over and abuse them, including
while at school. This meets the “reasonably direct relationship”
prong of the occupational restriction test. And given the temporal
proximity between Vélez-Luciano’s sexual misconduct and
sentencing, the “well-recognized high recidivism rate for sex
offenders,” Santiago, 769 F.3d at 9, and Vélez-Luciano’s
recklessness in abusing someone with whom he lived (JRJ), the
record offers enough support for the “reasonabl[e] necess[ity] to
protect the public” prong of U.S.S.G. § 5F1.5.
Next, Vélez-Luciano offers less-stringent conditions to
show that the district court deprived him of more liberty than
necessary. However, each of these proposed conditions fails to
assure public safety. His first proposal, which would permit him
to work with children but never be alone with fewer than ten, still
allows him access to new potential victims. His second offering,
that another adult be present when Vélez-Luciano is with a minor,
similarly fails. Given that he both molested JRJ even while living
with her and her mother, and abused her in the band classroom --
where other children would attend rehearsals and while other
teachers were in the building -- the record plausibly supports the
inference that, far from creating a miscarriage of justice, the
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situation required stronger preventive measures than a simple
requirement of another adult’s presence when Vélez-Luciano
interacted with children.
Finally, Vélez-Luciano argues that these conditions
deprive him of his economic livelihood. This is plainly wrong.
He can still work with bands that do not contain minor children as
members and that perform at adult venues, such as nightclubs. He
also can perform other jobs that require his musical skills without
having to interact with children. Condition 16 makes clear that
it does not limit what Vélez-Luciano can do, it simply limits with
whom he can do it.
At oral argument, Vélez-Luciano raised for the first
time the argument, which he expanded on in his Rule 28(j) letter,
that these conditions infringe on his right to maintain a
relationship with his minor children. Vélez-Luciano has nine
children, three of whom were minors at the time of the PSR. Two
of them, one daughter and one son, will still be minors once his
term of incarceration ends. No record evidence suggests any
misconduct against these children. By not raising this issue in
his briefing, Vélez-Luciano has waived this argument as to both
children. See United States v. Hogan, 722 F.3d 55, 61 (1st Cir.
2013). Nonetheless, because Vélez-Luciano’s already-existing
relationship with his minor children “implicate[s] a fundamental
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constitutional liberty interest,” Del Valle-Cruz, 785 F.3d at 56-
57, we offer some observations.12
Even if Vélez-Luciano had briefed this issue, the
miscarriage-of-justice standard would preclude relief as to his
daughter. In Del Valle-Cruz, we held that imposing conditions
“prohibiting [the defendant, who had minor children of his own,]
from having personal contact with, and living with, any minor
child” constituted a miscarriage of justice when applied to the
defendant’s own minor children. 785 F.3d at 52, 57-58. We relied
heavily on the lack of a reasonable relationship between Del Valle-
Cruz’s failure to register offense and the ban on interaction with
minor children. See 785 F.3d at 59-62. We specifically mentioned
the absence of any record evidence that the presence of a child in
the home posed a danger; that the district court imposed the
condition eighteen years after the underlying sexual offense
conviction; that he had committed no sexual or minor-based crimes
during those eighteen years; that he had lived with his older
children for several years without any incident, developing a
relationship with them; and that the district court offered no
explanation for why it imposed the minor children restrictions in
that situation. Id.
12
We also note that these substantial constitutional
questions entitle Vélez-Luciano to careful and serious
consideration from his Probation Officer for any requests for
exceptions to these conditions he may make.
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Although the record does indicate that Vélez-Luciano
lived with some of his minor children for some time without
incident, other facts paint a more troublesome picture, especially
with regards to his daughter. For about seven months, he lived in
the same house as one of his minor victims, JRJ. His conviction
stemmed from sexual misconduct committed against her within three
years of sentencing. And this was concurrent to sexual abuse he
committed against a second minor victim, VMCH. Each of these facts
presents an important distinction between Vélez-Luciano and Del
Valle-Cruz; together, they undermine the latter’s precedential
potency and demonstrate how these conditions would not constitute
a miscarriage of justice sufficient to overcome the waiver of
appeal provision as applied to his daughter. Cf. Santiago, 769
F.3d at 9 (holding that imposing a condition barring contact with
minors on a defendant with minor children who molested the daughter
of his live-in then-girlfriend when the defendant currently lived
with his girlfriend and her daughter did not constitute a
miscarriage of justice).
While Vélez-Luciano’s failure to brief this issue also
precludes our review insofar as this argument applies to his minor
son, we note that his son would present different considerations.
The record reflects that Vélez-Luciano only poses a threat to young
girls –- nothing suggests he has any predilection towards males.
And the government itself acknowledged this in its Rule 28(j)
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letter. We highlight the substantial constitutional questions
this application presents so that the Probation Officer does not
operate on a blank legal canvas should Vélez-Luciano request, after
his release from prison in 2021,13 the Probation Officer to exercise
the authority, delegated by the District Judge, to make exceptions
from this condition.
D. Sex Offender Treatment Condition (Special Condition 3)14
Finally we address Special Condition 3, which requires
Vélez-Luciano to undergo a sex offender treatment program and to
comply with any of that program’s testing requirements, including
PPG testing. Vélez-Luciano focuses his appeal on the prospect of
facing PPG testing. In its Rule 28(j) letter, the government
announced that it no longer desired to potentially subject Vélez-
Luciano to PPG testing. Noting that because “Vélez-Luciano’s
predilection seems to be for teenage females that have reached the
age of full biological and physical maturity (14-17 years),” the
government informed us that “the PPG testing would likely not have
13 This is Vélez-Luciano’s currently-scheduled release
date, without any reduction or extension.
14 The relevant part of Condition 3 reads: “The defendant
shall undergo a sex-offense-specific evaluation and/or participate
in a sex offender treatment/and or mental health treatment program
arranged by the Probation Officer. The defendant shall abide by
all rules, requirements, and conditions of the sex offender
treatment program(s), including submission to testing; such as
polygraph, penile plethysmograph (PPG), Abel Assessments, visual
reaction testing or any other testing available at the time of his
release.”
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any usage in treatment.” The government bases its position on the
record we have before us.
We find that potentially subjecting Vélez-Luciano to PPG
testing when the government expressly disavows the utility of this
particular procedure about which we have expressed reservations,
see United States v. Medina, 779 F.3d 55, 70-73 (1st Cir. 2015),
especially when the record lacks any explanation of the
applicability of PPG testing to this defendant, constitutes a
miscarriage of justice. We thus decline to enforce Vélez-Luciano’s
waiver of appeal and address the condition’s merits, as it applies
to Vélez-Luciano’s exposure to PPG testing.
Because Vélez-Luciano did not object to the PPG
condition below, we review for plain error. United States v.
MacArthur, 805 F.3d 385, 390 (1st Cir. 2015). Vélez-Luciano must
“carry the burden of plain error review by showing: ‘(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant’s substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.’” United States v. Oppenheimer-Torres,
806 F.3d 1, 4 (1st Cir. 2015) (quoting United States v. Marchena-
Silvestre, 802 F.3d 196, 200 (1st Cir. 2015)).
Vélez-Luciano meets all four factors. It is clearly
erroneous, when faced with no countervailing evidence or
explanation, to impose a condition of supervised release that
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subjects a defendant to a highly invasive procedure when both the
government and the defendant think the procedure has no efficacy.
Further, this error affected Vélez-Luciano’s substantial rights by
imposing on him that very condition -- if confronted with the
government’s disavowal of the PPG condition, the district court
likely would not have included potential PPG testing as a condition
of supervised release. Finally, this condition undermines the
fairness, integrity, or public reputation of the district court’s
proceedings by potentially subjecting Vélez-Luciano to an
intrusive, yet concededly ineffective, condition of supervised
release without any explanation or, on this record, apparent
purpose. We thus vacate Condition 3, insofar as it subjects Vélez-
Luciano to potential PPG testing, and remand to the district court
for consideration of whether to reimpose this Condition.
IV. Conclusion
For the foregoing reasons, we affirm the district court
in all respects except for Condition 3, solely insofar as it
authorizes PPG testing. We thus remand the case to the district
court for resentencing on that Condition. Should the district
court reimpose the PPG testing provision, it must explain its
reasoning for doing so.15
15Because we find that Vélez-Luciano’s waiver of appeal
bars us from reaching the merits of every Condition except
Condition 3, and we find that Condition both a miscarriage of
justice and plainly erroneous, this case does not compel us to
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address what distinction, if any, exists between the miscarriage-
of-justice and the plain-error standards.
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