United States v. Santiago , 769 F.3d 1 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1146
UNITED STATES,
Appellee,
v.
JUAN JOSÉ SANTIAGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Baldock,* and Thompson,
Circuit Judges.
Liza L. Rosado-Rodríguez, Research and Writing Specialist,
with whom Héctor E. Guzmán-Silva, Federal Public Defender, and
Héctor L. Ramos Vega, Assistant Federal Public Defender, were on
brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division were on brief, for appellee.
September 12, 2014
*
Of the Tenth Circuit, sitting by designation.
THOMPSON, Circuit Judge. Defendant Juan José Santiago
was sentenced to twelve months in prison and ten years supervised
release after pleading guilty to one count of failing to register
as a sex offender. The terms of Santiago's supervised release
included a series of special sex offender conditions, which he now
seeks to vacate. There is merit to some, but not all, of
Santiago's claims of error. In short, while a waiver of appeal
serves to defeat the bulk of Santiago's challenges, we vacate one
of the conditions of supervised release, which was imposed in
Santiago's absence.
I. The Start of Things
Santiago's story, inasmuch as it is relevant to this
appeal, begins over a decade ago in Florida. On March 19, 2002, a
Mulberry, Florida police detective responded to a hospital
emergency room for the reported rape of a seven-year-old girl. The
girl's mother, who was Santiago's girlfriend at the time, told the
detective that the girl had said that "her daddy," referring to
Santiago, "had touched her privates."1 Two days later, the girl
was interviewed by the Florida Department of Health's Child
Protection Team. She told them that "her daddy would take her and
his pants off, would get on top of her and move around like in the
movies she had seen with him" and that "he touched and licked her
1
In her statements, the girl refers to Santiago as daddy,
though the record contains no indication that he is her biological
father, nor that Santiago and her mother were ever married.
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privates." Santiago's girlfriend confirmed that there were two
pornographic videos in the couple's night stand and consented to a
search, which turned up both videos. Santiago was arrested.
Santiago was charged, under Florida law, with one count
of sexual battery on a person less than twelve years of age, and
one count of lewd molestation. The sexual battery charge was later
reduced to child abuse. Santiago pleaded nolo contendre to both
the lewd molestation and the child abuse charge. On July 19, 2002,
Santiago was sentenced to five years of probation for the child
abuse charge, and ten years of probation for the lewd molestation
charge, to be served concurrently. Pursuant to the Sex Offender
Registration and Notification Act (SORNA), 18 U.S.C. § 16913,
Santiago was required to register as a sex offender, and keep his
registration current, in all jurisdictions where he resided.
Over the next couple of years, Santiago repeatedly had
trouble abiding by the terms of his probation. First, in July
2003, Santiago missed his court ordered curfew; an arrest warrant
was issued, but later withdrawn. A year or so later, in September
2004, Santiago moved from his approved residence to another
residence without prior permission from his probation officer, and
failed to pay his monthly cost of supervision. Santiago admitted
to the violations, and served forty-five days in county jail. Upon
release, his probation was restored.
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The stint in county jail did little to improve Santiago's
compliance. Shortly after his release, in November 2004, an arrest
warrant issued because Santiago had failed to register as a sex
offender, neglected to report to the probation office, and had not
paid court costs. A few weeks later, Santiago's probation officer
reported additional violations: Santiago had once again moved from
his approved residence without prior approval, had failed to
successfully complete his sex offender treatment program, and had
failed to pay court costs and restitution.
Having exhausted the system's goodwill, Santiago had his
probation revoked on August 11, 2005. He was sentenced to just
over seven years in Florida state prison for the child abuse
charge, and five years for the lewd molestation charge, to be
served concurrently. Santiago was released from prison on November
21, 2010. At some point following his release, Santiago moved from
Florida to Puerto Rico.
II. The Instant Offense
Once in Puerto Rico, Santiago again failed to register as
a sex offender. Law enforcement caught up with him and, on April
3, 2012, a federal grand jury indicted Santiago on one count of
violating 18 U.S.C. § 2250 for traveling through interstate
commerce and knowingly failing to register with Puerto Rico
authorities as required by SORNA.
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Santiago decided to work with the government and he
entered into a plea agreement. The agreement indicated that the
Sentencing Guidelines yielded a recommended sentence of twelve to
eighteen months, and that the government, in exchange for a guilty
plea, would be satisfied with the bottom end of that range. The
agreement also noted that the penalty for the offense charged
included a term of supervised release that could range from five
years to life. Pertinent to our purposes, the plea agreement
contained a waiver of appeal provision, which provided that should
the court accept the agreement and sentence Santiago according to
its terms, Santiago would be "waiv[ing] and permanently
surrender[ing] his right to appeal the judgment and sentence in
this case."
At the change of plea hearing, the magistrate judge
explained to Santiago the implications of the plea agreement,
including the fact that Santiago would be giving up his right to
appeal the judgment and sentence. She also explained the penalties
he faced, noting the applicable term of supervised release and the
fact that Santiago's release would be subject to some conditions.
Santiago confirmed that he understood, and his attorney vouched for
Santiago's competence to enter into the plea agreement. The court
accepted Santiago's guilty plea; only sentencing considerations
remained.
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On December 6, 2012, the probation office issued its
presentence investigation report (PSR). The PSR recommended (in
addition to less relevant things) that a variety of special sex
offender conditions be imposed, which generally speaking placed
limitations on Santiago's contact with minors and required sex
offender treatment with compliance monitoring.
Santiago's sentencing hearing took place on January 4,
2013. After some skirmishing not relevant to this appeal, the
district court judge sentenced Santiago to twelve months in prison
followed by a ten-year term of supervised release. In accord with
the PSR's recommendation, the judge, at the hearing, imposed a
number of special sex offender conditions as terms of Santiago's
supervised release. The court inflicted the conditions over the
objection of Santiago's attorney, who argued that the record was
bereft of any justification for such conditions.2 The judge
disagreed, finding the fact that Santiago had pleaded nolo
contendre to lewd molestation of his then-girlfriend's daughter in
2002 sufficient to warrant the special conditions.
The court issued its written judgment the same day as the
sentencing hearing. In addition to the special sex offender
2
The government, for its part, was ambivalent at first,
stating a preference for leaving the issue of the special
conditions up to the court's discretion. When pressed by the
sentencing judge, the government attorney stated that the
government did not think special sex offender conditions needed to
be imposed at that time.
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conditions announced at the hearing, the judgment contained one
additional condition, numbered thirteen in the judgment, which
provided that Santiago could not use or possess sexually explicit
material or frequent any establishments providing pornography or
sexual services.
III. This Appeal
Santiago comes to us with a circumscribed advancement.
He does not challenge his sentence, his term of supervised release,
or the general conditions of that release. Rather he solely takes
issue with some of the special sex offender conditions imposed by
the district court.
First, he claims that a handful of the conditions were
unwarranted because they were not reasonably related to his failure
to register (which is not a sex offense) or any of the overarching
goals of supervised release. The disputed conditions can be
summarized as follows. Santiago must: (1) have no unapproved
contact via mail, phone, or electronically with minors; (2) undergo
sex offender evaluation and treatment; (3) avoid entering,
loitering, or working near any areas frequented by minors without
probation's approval; (4) not live near any area frequented by
minors; and finally (5) refrain from living with minors unless
probation gives the okay.3 Next, Santiago argues that condition
3
At his sentencing hearing, Santiago was particularly
concerned with the conditions that prohibited him from living with,
or coming in contact with, minors because at the time he had
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thirteen of the judgment (recall this was the condition relating to
sexually explicit materials and establishments), in addition to not
being justified, was in violation of his right to be present
because it was not announced at his sentencing hearing.
The government does not think we need to reach the merits
of either claim. It retorts that pursuant to the waiver of appeal
provision in his plea agreement, Santiago gave up his right to
appeal his sentence, including the special terms of his supervised
release.
The multiple special sex offender conditions that
Santiago claims were baseless given the circumstances, and the
unannounced condition thirteen, suggest distinctive concerns. And
ultimately they require different results. As such, we take them
independently.
IV. The Supposed Unwarranted Conditions
With respect to the conditions Santiago claims were
groundless, our inquiry, as the government suggests, starts and
ends with the waiver of appeal contained in Santiago's plea
agreement. Santiago does not dispute that because he was sentenced
in accordance with the plea agreement he is precluded by the waiver
from appealing his term of imprisonment. Rather, he attempts to
draw a distinction between the twelve-month prison term and his
several minor children in his family, including a child of his own
and his girlfriend's children.
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supervised release conditions. Because, he says, the plea
agreement was silent as to which conditions of supervision were to
be imposed, and it did not make any recommendation one way or the
other, the conditions fall outside the waiver's scope. Our
jurisprudence is at odds with Santiago's position.
The waiver at issue here explicitly stated that Santiago
was giving up "his right to appeal the judgment and sentence in
this case." (Emphasis added.) Significantly, a supervised release
term is part of a sentence. See United States v. Brown, 235 F.3d
2, 4 (1st Cir. 2000) (providing that a "supervised release term is
an integral part of a sentence" and that a defendant can rarely
claim unfair surprise when the resultant conditions of supervised
release are imposed); United States v. Mandarelli, 982 F.2d 11, 12
(1st Cir. 1992) (Breyer, J.) ("Supervised release is part of a
prison sentence, to be served after imprisonment.") (internal
quotation marks omitted) (emphasis in original); 18 U.S.C. § 3583
("The court, in imposing a sentence to a term of imprisonment for
a felony or a misdemeanor, may include as part of the sentence a
requirement that the defendant be placed on a term of supervised
release.").
Consistent with this prescript, we have routinely applied
appellate waivers to preclude defendants from appealing their
conditions of supervised release, where the waiver extended to the
defendant's power to appeal the judgment and sentence. See United
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States v. Rodríguez-Santana, 554 F.App'x. 23, 26 (1st Cir. 2014)
(defendant could not appeal special sex offender conditions in
light of appellate waiver); United States v. Rivera-López, 736 F.3d
633, 637 (1st Cir. 2013)(waiver of appeal precluded this court from
reviewing defendant's nightly curfew and electronic monitoring
conditions); United States v. Nguyen, 618 F.3d 72, 76 (1st Cir.
2010) (finding appellate review of a drug testing condition
foreclosed by a waiver of appeal). As we said in Rodríguez-
Santana, while addressing special sex offender conditions not
unlike the ones Santiago challenges here, "'[a] supervised release
term is an integral part of a sentence' generally encompassed
within any broadly-worded agreement not to appeal a 'sentence.'"
554 F.App'x at 25 (quoting Brown, 235 F.3d at 4).
Given all this, we have no trouble concluding that the
word "sentence" in Santiago's waiver encompasses 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. Having established the waiver's scope does not,
however, bring things to an end. The question of enforcement of
the waiver remains. 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.
Rivera-López,736 F.3d at 635; United States v. Teeter, 257 F.3d
14, 24-26 (1st Cir. 2001).
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To assess how well-informed Santiago's waiver was we look
to the plea agreement and the change-of-plea colloquy. See Teeter,
257 F.3d at 24. The plea agreement contained a clearly worded
"waiver of appeal," which explicitly stated that Santiago was
giving up his right to appeal the judgment and sentence should the
court accept, and sentence him in accord with, the plea agreement.
The plea agreement set forth both the potential term of
incarceration, and the term of supervised release, faced by
Santiago. At the change of plea hearing, the magistrate judge
clearly explained to Santiago the implications of his entering into
this agreement. She articulated the maximum penalties for the
crime, including the applicable term of supervised release, and
then explained that this term would be subject to "some
conditions," and that, should Santiago violate those conditions, he
would "go back to jail for the full term." Santiago confirmed
that he understood. The judge also informed Santiago that, by
virtue of the waiver of appeal provision, he was "giv[ing] up [his]
right to appeal both the judgment and . . . sentence." Again,
Santiago understood. Santiago's attorney indicated that she had
gone over the plea agreement with him, including the rights he
would be relinquishing. She described their conversations as
"above-average" and "intelligent." The magistrate judge found, and
Santiago's attorney confirmed, that Santiago was competent to enter
the plea.
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Taking into consideration the exchange at the change of
plea hearing and the language of the waiver itself, it is apparent
that Santiago's relinquishing of his appellate rights was knowing
and voluntary. The waiver of appeal itself was unambiguous and the
judge sufficiently called the waiver to Santiago's attention while
making sure he understood its ramifications. The fact that the
plea agreement does not specify Santiago's conditions of supervised
release is inconsequential; a defendant need only understand how
the right he is giving up would likely apply in the general sense,
rather than the specific consequences of invoking it. See
Rodríguez-Santana, 554 F.App'x at 25 (citing United States v. Ruiz,
536 U.S. 622, 629 (2002)).
That leaves Santiago with just one more shot at
sidestepping the waiver of appeal. And it is not a task easily
accomplished. In our "sound discretion," we may refuse to honor
the appellate waiver if denying Santiago a right of appeal would
result in a "miscarriage of justice." Teeter, 257 F.3d at 25.
This "exception is meant only for 'egregious cases' and is to be
applied 'sparingly and without undue generosity.'" Sotirion v.
United States, 617 F.3d 27, 36 (1st Cir. 2010)(quoting Teeter, 257
F.3d at 25, 26).
Aware (by his own admission) of the difficulty of
establishing a miscarriage of justice, Santiago devotes little time
to this issue on appeal. He only argues that "it would be
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unreasonable to expect him to anticipate special conditions at the
time he waived his right to appeal" because he "was not warned by
the district court of the possibility of receiving harsh sex
offender conditions of supervised release." This offering falls
short. 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 reversible error." United States v. Chambers, 710
F.3d 23, 31 (1st Cir. 2013) (internal quotation marks omitted). No
such error - garden variety or otherwise - invaded the proceedings
here.
"Under ordinary circumstances, the district court has
significant discretion in formulating conditions of supervised
release." Nguyen, 618 F.3d at 76. The conditions must just be
reasonably related to one or more of the goals of supervised
release, i.e., the nature and circumstances of the offense and the
history and characteristics of the defendant, the need to deter
criminal conduct, the need to protect the public, and the needed
training, care, or treatment of the defendant. See Rivera-López,
736 F.3d at 635 (citing U.S.S.G. § 5D1.3(b); 18 U.S.C. 3583(d)).
At the same time, the conditions must "involve[] no greater
deprivation of liberty than is reasonably necessary." 18 U.S.C. §
3583(d)(2). With respect to conditions of supervised release, the
"hallmark" that separates the permissible from the impermissible is
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whether, given the facts, a certain restriction was "clearly
unnecessary." Brown, 235 F.3d at 7.
While the conditions imposed on Santiago were undoubtedly
stringent, especially since the underlying offense was not a sexual
one, the conditions were not so obviously unwarranted as to
constitute a miscarriage of justice. Santiago plead nolo contendre
to lewd molestation in 2002. Since then, he violated the terms of
his probation several times, and, in violation of SORNA, failed to
register as a sex offender in two jurisdictions. At the time the
court imposed the disputed conditions, Santiago's living
arrangements mirrored those from when the 2002 offense occurred, in
that he was living in a home with his girlfriend and her minor
children. Couple this fact with Santiago's apparent inability to
abide by (or blatant disregard of) the terms of his probation, his
failure to register as a sex offender on more than one occasion,
and the well-recognized high recidivism rate for sex offenders, see
Smith v. Doe, 538 U.S. 84, 103 (2003); United States v. Sebastian,
612 F.3d 47, 51 (1st Cir. 2010), the district court's determination
that special sex offender conditions were necessary to further the
goals of supervised release (most fitting, the protection of the
public) was hardly unsubstantiated.
Nor are we persuaded by Santiago's avowal that it was
unforeseeable to him that special sex offender conditions might be
imposed. Santiago was well aware of his criminal past, his
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subsequent probation violations, and his inattention to his sex
offender registration requirements. Had Santiago wanted more of an
indication as to whether special conditions related to his status
as a sex offender might be imposed, he could have requested the
PSR, which ultimately recommended a number of such conditions,
prior to entering a guilty plea. See United States v. Donath, 616
F.3d 80, 84-85 (1st Cir. 2010) (noting, in connection with a
finding that no miscarriage of justice occurred, that the defendant
could have requested a PSR prior to waiving his right to appeal in
order to assess how his past convictions would be treated).
Whether Santiago's special sex offender conditions would
stand firm against scrutiny on direct appeal is not something we
need to get into. We need only answer "the much simpler question
of whether the conditions are so clearly erroneous and
unsubstantiated as to work a miscarriage of justice." Rivera-
López, 736 F.3d at 637. Because they are not, Santiago must be
held to his waiver of appeal as to those conditions. Condition
thirteen is a different story.
V. Condition Thirteen
To remind the reader, condition thirteen of the judgment
(generally speaking) required Santiago to refrain from using
sexually explicit material, or frequenting establishments providing
pornography or sexual services. How the condition was imposed is
important. Condition thirteen, unlike all the other special sex
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offender conditions, was not announced by the judge at Santiago's
sentencing hearing. Instead it made its first appearance in the
written judgment. Because of this, Santiago claims his right to be
present at sentencing was violated. Off the bat we need to
consider how the manner in which the condition was inflicted
impacts the applicability of Santiago's waiver of appeal.
It is well settled that a criminal defendant, by virtue
of the United States Constitution and Federal Rules of Criminal
Procedure, enjoys the right to be present at his own sentencing.
United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011); United
States v. Sepúlveda-Contreras, 466 F.3d 166, 169 (1st Cir. 2006).
Obviously, with respect to condition thirteen, that tenet was not
complied with. As explained above, it is within our choosing to
refuse to honor an appellate waiver if doing so would result in a
"miscarriage of justice." Teeter, 257 F.3d at 25. Miscarriage of
justice is "more a concept than a constant" and the circumstances
that will justify invoking it are "infinitely variable." Id. at
25, n.9; 26. Such factors may or may not be related to the waiver
itself, Nguyen, 618 F.3d at 75, and could include "the clarity of
the error, its gravity, its character . . . the impact of the error
on the defendant, the impact of correcting the error on the
government, and the extent to which the defendant acquiesced in the
result." Teeter, 257 F.3d at 26.
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Relief under the miscarriage of justice exception is
often sought but seldom meted out. That being said, we think this
case is more the exception than the norm and enforcing Santiago's
waiver as to condition thirteen would work a miscarriage of
justice. First, the error here is clear. Supervised release
conditions not announced at sentencing should not make a surprise
appearance in the written judgment. See, e.g., Sepúlveda-
Contreras, 466 F.3d at 169; United States v. Vega-Ortiz, 425 F.3d
20, 22 (1st Cir. 2005). Further, the error has significance, most
notably its constitutional dimensions. See, e.g., Teeter, 257 F.3d
at 25, n.9 (citing an appellant's claim that his sentence was based
on a constitutionally impermissible factor as an example of a case
where the court might set aside a waiver). The impact on Santiago
is apparent. He had a restrictive condition imposed without the
opportunity to argue that it was not warranted, and there is no
claim that he acquiesced to this result. Finally, we see little
prejudice to the government should we take up the merits of
Santiago's (very limited) appeal given that the government fully
briefed this issue.
That stumbling block out of the way, we move on to the
merits. We review Santiago's claim for harmless error. See
Sepúlveda-Contreras, 466 F.3d at 170; United States v. Ortiz-
Torres, 449 F.3d 61, 74 (1st Cir. 2006). In the case of right-to-
be-present challenges based on a sentencing court's inclusion of
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conditions of supervised release in the judgment that were not
announced at sentencing, the oral conditions control where those
conditions "conflict in a material way" with the conditions that
ended up in the judgment. Sepúlveda-Contreras, 466 F.3d at 169.
There will be no material conflict "where the defendant is on
notice that he is subject to the terms included in the written
judgment." Ortiz-Torres, 449 F.3d at 74.
The government concedes that because condition thirteen
was a non-mandatory, non-standard condition, Santiago is not
presumed to have been on constructive notice of the condition. See
Sepúlveda-Contreras, 466 F.3d at 169-70 (explaining that
"[d]efendants are deemed to be on constructive notice for mandatory
and standard conditions"). Nonetheless, the government insists we
should find that Santiago was in fact on constructive notice that
condition thirteen would be imposed given that his victim from the
2002 offense alleged that she and Santiago watched pornography
together and two pornographic videos were recovered by police. We
are not persuaded.
Here, there is clearly a conflict between the terms of
supervised release issued orally by the judge, and those contained
in the written judgment. Moreover, there is no evidence that
Santiago was on notice that a term of supervised release akin to
condition thirteen would be imposed. Unlike the other special sex
offender conditions, condition thirteen was not recommended in the
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PSR. And we disagree with the government that the fact that
pornography viewing was reported by his minor victim in 2002 should
have put Santiago on constructive notice that he would be precluded
from using or possessing sexually explicit material or frequenting
providers of such material in 2013. We conclude that the court
erred in imposing condition thirteen for the first time in the
written judgment; the question remains whether the error was
harmless.
Since the error alleged is a constitutional one, "the
government has the burden of proving beyond a reasonable doubt that
the error did not affect the defendant's substantial rights." Id.
at 171. In the context of Santiago's case, this means the
government must establish that Santiago's ability to object was not
compromised, that is, the condition would have been imposed even if
he was present. See id. at 171-72. The government has not done
this. All it did was point us to the fact that the district court
judge was unconvinced by Santiago's attorney's argument at the
sentencing hearing that the announced special sex offender
conditions were unwarranted. This brief colloquy between the judge
and the attorney does not leave us convinced beyond a reasonable
doubt that condition thirteen would have been imposed had Santiago
been given the opportunity to object. Consequently, we must vacate
condition thirteen.
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VI. Conclusion
Because Santiago waived his right to appeal all of the
special sex offender conditions of supervised release, save
condition thirteen, we dismiss that portion of the appeal.
Condition thirteen, however, cannot stand. It is vacated and we
remand to the district court for re-sentencing consistent with this
opinion.
DISMISSED IN PART, VACATED IN PART, AND REMANDED.
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