United States Court of Appeals

For the First Circuit

No. 13-1050

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS MANUEL DEL VALLE-CRUZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

 Torruella, Thompson, and Barron,

Circuit Judges.

Jedrick H. Burgos-Amador for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, Chief,

Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United

States Attorney, was on brief, for appellee.

April 6, 2015
THOMPSON, Circuit Judge. Defendant Carlos Manuel Del

Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in

prison and seven years of supervised release after pleading guilty

to one count of failing to register as a sex offender. By our

count, this is the third time Del Valle-Cruz has been convicted of

failing to register since his 1997 sex offense conviction. As

troubling as that is, we note that he has not been charged with any

other sex offenses in the intervening eighteen years. The terms of

Del Valle-Cruz's supervised release include a series of special

conditions that prohibit him from contact with minors and require

him to undergo sex offender treatment -- terms that were not

imposed as part of his sentence for the underlying sex offense. 

Moreover, these conditions were imposed in a boilerplate fashion,

devoid of any explanation by the district court.

Del Valle-Cruz now seeks to vacate his conviction or,

failing that, the aforementioned special conditions. A waiver of

appeal bars Del Valle-Cruz's appeal of his conviction, as well as

his appeal of most of the special conditions. However, as to his

appeal of the conditions that would interfere with his relationship

with his son, to avoid a miscarriage of justice, we decline to

enforce the waiver and instead vacate those conditions that would

prevent Del Valle-Cruz from contact with, or residing with minors. 

We will remand for de novo resentencing with respect to the

supervised release term, so that the district court can consider

-2-
the supervised release conditions as a whole and in light of

intervening precedent. Upon remand for further proceedings on the

special conditions, we invite the district court to revisit the

conditions and to explain their justification in this case.

I.

Background

In Oklahoma in 1997, Carlos Manuel Del Valle-Cruz pled

guilty to a sex offense against a child -- sexual battery.1

 The

charges arose from an incident that occurred while Del Valle-Cruz

was working in a nursing center. He approached a fifteen-year-old2

volunteer, pushed her against a wall and touched and kissed her.

Del Valle-Cruz, then thirty, claimed the encounter was consensual,

but given the girl's age, consent was no defense. He was sentenced

to five years imprisonment, with three years suspended.

As a result of this conviction, Oklahoma required Del

Valle-Cruz to register as a sex offender for a period of not less

than ten years, commencing with his release from prison in 2001. 

In the event that he moved to another state, Del Valle-Cruz was

required to register in the new state. Although Del Valle-Cruz

registered while living in Oklahoma, he moved to Florida and did

1

Because the instant appeal arises from a conviction following

a plea agreement, we draw the facts from the sentencing materials

and plea colloquy. See United States v. Whitlow, 714 F.3d 41, 42

(1st Cir. 2013).

2

Although the Pre-Sentencing Report states that the victim was

fifteen years old, Del Valle-Cruz contends that she was sixteen.

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not register there. In 2003, he was arrested in Florida for

domestic battery, and was also charged with failing to register as

a sex offender. He pled guilty to both charges and was sentenced

to a year in jail and three years probation.

In 2007, after a routine check of registered sex

offenders, Florida authorities discovered that Del Valle-Cruz had

absconded from his registered address. He was charged with, and

again pled guilty to, failing to register, and received three years

probation.

The following year, Del Valle-Cruz received a letter from

the Oklahoma authorities notifying him that he had been assigned as

a level three sex offender and would now be required to register

for his lifetime. The letter directed him to contact the

coordinator of the registration unit with any questions. He

neither called nor took any action to challenge that

classification. 

In 2009, Del Valle-Cruz moved to Puerto Rico and began

pursuing a degree in computer information systems. Although he

once again failed to register, Del Valle-Cruz apparently worked

diligently at his studies, and expected to graduate in May 2014. 

However, after Florida authorities discovered that he had once

again absconded from his address there, they found out that Del

Valle-Cruz had moved to Puerto Rico. A warrant was issued for his

-4-
arrest, and in April 2012, Del Valle-Cruz was indicted federally

for failing to register pursuant to 18 U.S.C. § 2250(a).3

Del Valle-Cruz pled guilty pursuant to a plea agreement. 

The agreement contained a waiver of appeal clause that stated:

"[T]he defendant . . . waives and permanently surrenders his right

to appeal the judgment and sentence in this case." An expedited

Pre-Sentence Investigation Report ("PSR") was prepared and

disclosed to Del Valle-Cruz on December 11, 2012; the PSR

recommended a variety of special conditions of supervised release. 

The next day, the district court conducted a hearing and sentenced

Del Valle-Cruz to a term of imprisonment of twenty-one months, and

a supervised release term of seven years. The district court set

specific conditions of Del Valle-Cruz's supervised release. 

Pertinent to this appeal, the court accepted probation's

recommendation that: (1) Del Valle-Cruz would have to participate

in mental health and sex offender treatment, including submission

to polygraph and PPG4 testing; and (2) he was to have no contact

with minors under the age of 18, would not be allowed to reside in

318 U.S.C. § 2250(a) provides for a fine or imprisonment for

up to ten years for sex offenders who travel in interstate commerce

and knowingly fail to register or update a registration.

4

"PPG testing 'involves placing a pressure-sensitive device

around a man's penis, presenting him with an array of sexually

stimulating images, and determining his level of sexual attraction

by measuring minute changes in his erectile responses.'" United

States v. Medina, 779 F.3d 55, 65 (1st Cir. 2015) (quoting United

States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006)).

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the home with a child under the age of 18, and could not work or

volunteer with minors. The conditions specified that Del ValleCruz was not to have any contact with minors "unless approved in

advance by the U.S. Probation Officer."5 Notably, Del Valle-Cruz

has a son who is approximately nine years old.

After the court pronounced the sentence, Del Valle-Cruz

objected, saying the original offense was (then) some fifteen years

ago and the record did not reflect justification for the sentencing

conditions. With no further elaboration on his objection Del

Valle-Cruz simply asked the court "to make a record of that." The

court noted the objection, but imposed the conditions. 

Notwithstanding his waiver of appeal, Del Valle-Cruz filed a timely

appeal.

In March 2014, subsequent to filing this appeal, Del

Valle-Cruz received a letter from the Oklahoma Department of

Corrections informing him that he no longer needed to register in

that state. The letter cited a recent Oklahoma Supreme Court

decision which held retroactive application of that state's sex

offender registration statute to be a violation of the Oklahoma

state constitution's ex post facto clause. See Starkey v. Okla.

Dep't of Corr., 305 P.3d 1004 (Okla. 2013).

5

We shall explore the individual conditions in greater detail

below.

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II.

Discussion

On appeal, Del Valle-Cruz seeks to vacate his conviction,

citing the Oklahoma court's decision to support his argument that,

at the time of his arrest, he had no duty to register. 

Alternatively and notwithstanding his appeal waiver, Del Valle-Cruz

seeks to vacate some of the sentencing conditions as not reasonably

related to the nature and circumstances of the offense of failing

to register, or to his history and characteristics. He contends

that the conditions deprive him of more liberty than is necessary

to achieve the goals of supervised release. Specifically, he

challenges the following conditions: 5) which prohibits him from

working with minors; 6) which requires him to submit to sex

offender treatment; 11) which requires him to submit to mental

health treatment if he is diagnosed with a mental health disorder;

13) which prohibits any personal contact with minors; 14) which

prohibits him from volunteering with minors; and 15) which

prohibits him from residing with a minor without prior approval by

the probation officer.

We can make quick work of Del Valle-Cruz's condition 11

challenge. He makes only a passing reference to condition 11, but

makes no argument as to why imposing the mental health treatment

condition would result in a miscarriage of justice. "[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

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at developed argumentation, are deemed waived." United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Accordingly, we deem this

argument waived. That leaves us with conditions 5, 13, 14, and 15,

which relate to interactions with minors, and condition 6, which

involves sex offender treatment. We shall address these conditions

separately.

The government points to the waiver of appeal clause and

says that, contrary to Del Valle-Cruz's protestations, it should be

enforced to bar the instant appeal, including the terms of release. 

Alternatively, the government argues that the imposition of the

conditions of supervised release was not an abuse of discretion.

A. Waiver of Appeal

We begin with the waiver of appeal clause in Del ValleCruz's plea agreement and determine whether it should bar this

appeal. We review the validity of waivers of appeal by applying

the three-prong Teeter test and ask: (1) whether the waiver's scope

was clearly delineated; (2) whether the district court specifically

inquired about the waiver of appellate rights; and (3) whether 

denial of those rights would constitute a miscarriage of justice. 

United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001). The

first two prongs of this test are directed to ensuring that "the

defendant freely and intelligently agreed to waive [his] right to

appeal." Id. Although Del Valle-Cruz concedes in his reply brief

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that his waiver was knowing and voluntary, he argues that enforcing

the waiver would result in a miscarriage of justice.

"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. Santiago, 769 F.3d 1,

8 (1st Cir. 2014) (internal quotation marks omitted) (citing United

States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013)). Del ValleCruz argues that there are two such errors. First, his actual

conviction for failing to register, because he claims that under

Oklahoma law, he was no longer required to register at the time of

his arrest. Second, the sentencing conditions, which he argues are

not reasonably related to the goals of supervised release. We will

address each in turn.

1. Waiver of Right to Appeal Conviction

Del Valle-Cruz first argues that we should not enforce

the waiver to bar the appeal of his conviction for failing to

register, because his Oklahoma registration period was

impermissibly enlarged from ten years to his lifetime, without the

benefit of a hearing. Del Valle-Cruz supports this argument by

citing the letter he received last year advising him that he was no

longer required to register in Oklahoma, a letter prompted by the

ruling in Starkey. According to Del Valle-Cruz, because extensions

like his violated the Oklahoma state constitution's ex post facto

-9-
clause, he was only required to register for the originally-imposed

ten years. That registration period would have lapsed by the time

he was arrested in Puerto Rico in 2012, and therefore Del ValleCruz contends it cannot be used to support his federal failure-toregister conviction.

Del Valle-Cruz was convicted under the federal Sex

Offender Registration and Notification Act ("SORNA"), which was

enacted in 2006 in an effort to make the existing scheme of state

registration "more comprehensive, uniform, and effective." Carr v.

United States, 560 U.S. 438, 441 (2010). SORNA defines "sex

offender" as "an individual who was convicted of a sex offense,"

and requires that "[a] sex offender shall register, and keep the

registration current, in each jurisdiction where the offender

resides." 42 U.S.C. §§ 16911, 16913. 

The triggering event for the duty to register is a sex

offense conviction, not a state sentence requiring registration as

Del Valle-Cruz argues. It would be illogical for SORNA to operate

to make state registrations more uniform, while at the same time

allowing individual states to determine which sex offenders have a

duty to register when they leave that state. Further, SORNA sets

out the minimum duration of registration for three "tiers" of

offenders. 42 U.S.C. § 16915 requires a registration period of

fifteen years for tier I sex offenders, twenty-five years for tier

II and lifetime for tier III. According to the Attorney General,

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SORNA "establishes minimum national standards, setting a floor, not

a ceiling" for the individual states. The National Guidelines for

Sex Offender Registration and Notification, 73 Fed. Reg. 38,030-01,

38,032 (July 2, 2008). Jurisdictions may choose to exceed the

guidelines in some areas, including the duration of registration,

but they must meet the minimum standards to comply with SORNA. Id.

Del Valle-Cruz's original conviction for a sex offense

against a child makes him a sex offender under SORNA. And once he

crossed the Oklahoma state line, he had a duty under federal law to

register. SORNA's shortest registration period is fifteen years,

and that period begins when the offender is released from prison.

See 42 U.S.C. § 16915(a) (registration period excludes time the

offender was in custody). Del Valle-Cruz was released in 2001;

even at tier I his duty under the federal statute would continue

until 2016. 

Accordingly, we find no error, let alone an error

significant enough such that enforcing the waiver of appeal would

result in a miscarriage of justice. Del Valle-Cruz's waiver is

enforceable to bar the appeal of his conviction for failing to

register.

2. Waiver of Right to Appeal Sentencing Conditions

Del Valle-Cruz also appeals certain conditions of his

supervised release, and the government presses its argument that

-11-
the waiver of appeal clause should operate to bar his challenge to

all of these conditions. 

a. Sex Offender Treatment

Knowing and voluntary waivers of appeal are binding as

long as the denial of the right to appeal would not constitute a

miscarriage of justice. Teeter, 257 F.3d at 25. That is a high

hurdle for Del Valle-Cruz to clear. Del Valle-Cruz contends that

the imposition of sex offender treatment with no explanation, and

without any indication that he had an inclination to commit another

sex offense, is an error rising to the level of a miscarriage of

justice. 

We find that Del Valle-Cruz's case is much like United

States v. Morales-Cruz, 712 F.3d 71 (1st Cir. 2013), which involved

similar facts. There we affirmed the imposition of sex offender

conditions upon a defendant whose sex offense had been committed

some sixteen years prior to his conviction for failing to register. 

Like Del Valle-Cruz, the defendant in Morales-Cruz also had

multiple failure to register convictions, and a more recent

conviction for domestic battery. Id. at 73. Although the MoralesCruz court did not give a very lengthy explanation for the

imposition of sex offender treatment, in stating that the sentence

and conditions were appropriate, the court referenced the goals of

deterrence, avoiding recidivism, protecting the community, and

rehabilitation. Id. at 73-74. Here, the court imposed sex

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offender treatment conditions upon Del Valle-Cruz without any

justification or explanation, and although it may have been error

to provide no reasoning for its decision, given our precedent

upholding such conditions under similar factual circumstances, we

cannot say it was "an increment of error more glaring than routine

reversible error." Santiago, 769 F.3d at 8. In light of MoralesCruz, we see no miscarriage of justice and find that the waiver of

appeal bars our review of the merits of the sex offender treatment

condition.6

b. No Interaction With Minors

Del Valle-Cruz next argues that the sentencing conditions

barring him from personal contact with minors impermissibly

interfere with his constitutional right to raise his child. On

this point, we at least partially agree.

6Recently, in Medina, where a waiver did not prevent our

reaching the merits of a similar condition, we found the use of PPG

testing extremely troubling due to its questionable reliability and

its extraordinary intrusiveness. 779 F.3d at 74. Given the

humiliating nature of the testing, and concerns about its record as

a "treatment" tool, we held that "in order for the condition

[imposing PPG] to be deemed facially reasonable, district courts

must provide a more substantial justification, at least once a

defendant objects." Id. at 72. Del Valle-Cruz did not voice a

specific objection to PPG testing. However, we are remanding for

resentencing as explained infra. Upon remand, while revisiting the

special conditions of supervised release, the district court must

also give due consideration to our decision in Medina. 

Additionally, conditions of supervised release can be modified once

a defendant is released from imprisonment. Fed. R. Crim. P.

32.1(c).

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"Relief under the miscarriage of justice exception is

often sought but seldom meted out." Santiago, 769 F.3d at 10.

Nevertheless, we have granted relief when an error of significant

or constitutional dimension is clear, and where there is "little 

prejudice to the government should we take up the merits of [the

defendant's] appeal given that the government fully briefed this

issue." Id. Here, the error is clear. Not only did the district

court impose onerous conditions without explanation or

justification, but more importantly, two of these conditions (13,

prohibiting personal contact with minors, and 15, prohibiting

residing with minors) implicate a fundamental constitutional

liberty interest -- the relationship between parent and child. See

Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

When imposing special conditions we, along with our

sister circuits, have "consistently required district courts to set

forth factual findings" to justify those conditions. United States

v. Perazza-Mercado, 553 F.3d 65, 75 (1st Cir. 2009) (quoting United

States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)). Other

circuits have vacated conditions barring contact with minors when

they were imposed with no explanation. United States v. Thompson,

777 F.3d 368, 376 (7th Cir. 2015) ("Because the district court has

not provided any explanation of how this condition [barring contact

with minors] is reasonably related to [the defendant's] offense and

background or to the goals of punishment, involving no greater

-14-
deprivation of liberty than is reasonably necessary to achieve

these goals, we vacate the condition." (quoting United States v.

Goodwin, 717 F.3d 511, 523-24 (7th Cir. 2013))); see also United

States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006) (finding that a

district court's failure to make an individualized determination

before imposing conditions that interfered with the defendant's

parental rights was clear error).

The record before us is devoid of any justification for

the imposition of conditions that would deprive Del Valle-Cruz of

any meaningful relationship with his son. The imposition of these

conditions -- justified by neither the government nor the court --

was a significant error. Although a court's failure to explain its

reasoning for the imposition of conditions does not automatically

result in a miscarriage of justice, where, as here, the error is of

this constitutional dimension, there can be no doubt that

enforcement of the waiver would be a miscarriage of justice. As

for prejudice, we conclude the government will suffer no detriment

if we allow Del Valle-Cruz to challenge these conditions, as it has

amply briefed the issue. Accordingly, we decline to enforce the

waiver of appeal as it relates to conditions 13 and 15.

Del Valle-Cruz also challenges the imposition of

condition 5, prohibiting him from working with minors, and

condition 14, prohibiting him from volunteering with minors. He

makes no specific argument relative to these two conditions,

-15-
leaving us to surmise that he intended that his arguments against

the "contact with minors" conditions would apply equally to all

four of the challenged conditions. However, conditions 5 and 14

are different; these conditions touch upon Del Valle-Cruz's liberty

interest, but they do not present as great an infringement. 

Although we are troubled by the imposition of conditions that would

prevent him from engaging in activities such as volunteering at his

son's school, particularly since his underlying offense is so

temporally remote and since he has shown no inclination to abuse

minors in the intervening years since his initial offense, we

cannot say with assurance that their imposition would result in a

miscarriage of justice. Because Del Valle-Cruz's underlying

conviction arose from an incident that took place in his workplace,

with a minor volunteer, these two restrictions are at least

reasonably related to his history and characteristics. 

Accordingly, we will enforce the waiver of appeal as it relates to

conditions 5 and 14, and we will proceed to consider the merits of

the appeal of the remaining conditions, 13 and 15.

B. Appeal of Sentencing Conditions

Del Valle-Cruz challenges the sentencing conditions

prohibiting him from having personal contact with, and living with,

any minor child as not reasonably related to either his offense or

his history and characteristics, arguing the district court abused

its discretion because there is nothing in the record to suggest

-16-
that he poses a danger to children. As such, he contends that

these conditions would deprive him of more liberty than is

necessary because they would interfere with his ability to "form a

family with a single mother and partake in raising his son."

We have frequently stated that conditions and terms of

supervised release are part of a defendant's sentence. Santiago,

769 F.3d at 7 (citing 18 U.S.C. § 3583). We review conditions of

supervised release for abuse of discretion. Morales-Cruz, 712 F.3d

at 72. Despite the brevity of the defendant's objection at his

sentencing hearing, we see no reason to apply plain error review,

particularly because the government and Del Valle-Cruz agree that

our review is for abuse of discretion. "[A]buse of discretion is

not a monolithic standard. Within its margins, embedded issues may

receive attention under more narrowly focused standards. Thus,

embedded questions of law engender de novo review and embedded

findings of fact engender clear-error review." United States v.

Carrasco-De-Jesús, 589 F.3d 22, 27 (1st Cir. 2009). The abuse of

discretion standard "is not a rubber stamp, counseling affirmance

of every discretionary decision made by a trial court." ColonCabrera v. Esso Standard Oil Co. (P.R.), Inc. 723 F.3d 82, 88 (1st

Cir. 2013) (internal quotation marks omitted). "The court exceeds

its discretion when it fails to consider a significant factor in

its decisional calculus, if it relies on an improper factor in

computing that calculus, or if it considers all of the appropriate

-17-
factors but makes a serious mistake in weighing such factors." Id.

(internal quotation marks omitted).

In assessing the validity of the conditions of supervised

release,

we apply 18 U.S.C. § 3583(d) and U.S.S.G.

§ 5D1.3(b), which require that special

conditions cause no greater deprivation of

liberty than is reasonably necessary to achieve

the goals of supervised release, and that the

conditions be reasonably related both to these

goals and to the nature and circumstances of

the offense and the history and characteristics

of the defendant.[7] 

Perazza-Mercado, 553 F.3d at 69 (internal quotation marks and

citations omitted). The district court is required to provide a

"reasoned and case-specific explanation" for the conditions it

imposes. Id. at 75. This requirement is rooted in 18 U.S.C.

§ 3553(c) which mandates that "[t]he court, at the time of

sentencing, shall state in open court the reasons for its

imposition of the particular sentence." In addition to ensuring an

individualized sentence, this reasoned explanation enables our

appellate review. Perazza-Mercado, 553 F.3d at 75. Further,

"courts of appeals have consistently required district courts to

set forth factual findings to justify special probation

conditions." Id. (quoting Warren, 186 F.3d at 366). These factual

7

The goals of supervised release include: affording adequate

deterrence; protecting the public; and rehabilitating the

defendant. 18 U.S.C. § 3553(a)(2).

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findings must have "adequate evidentiary support in the record." 

United States v. York, 357 F.3d 14, 20 (1st Cir. 2004).

Although we oblige the district court to "provide a

reasoned and case-specific explanation," no explanation was

provided here. Perazza-Mercado, 533 F.3d at 75. Nevertheless, our

analysis does not end there; "even in the absence of an explanation

from the court, a court's reasoning can often be inferred after an

examination of the record." Id. (internal quotation marks

omitted). Accordingly, because the district court has given us no

guidance whatsoever as to the rationale for the conditions it

imposed, we look to the record to determine whether the court's

reasoning can safely be inferred. 

As we said, Del Valle-Cruz disputes the validity of 

conditions 13 and 15, which, to remind the reader, relate to

personal contact with minors and residing with minors,

respectively. Because both of these conditions would greatly

impact Del Valle-Cruz's ability to have a normal relationship with

his son, we will address them together.

Reasonable Relation

We recognize that a district court "may impose any

special condition of supervised release that it considers

appropriate," but the court's discretion is limited by the caveat

that the conditions must be reasonably related to "the nature and

circumstances of the offense and the history and characteristics of

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the defendant." Morales-Cruz, 712 F.3d at 74 (internal quotation

marks omitted). Del Valle-Cruz first argues that these conditions

are not reasonably related to his offense, because the crime of

failing to register did not involve sexual conduct, and the

underlying sex offense was temporally remote. Moreover, he points

out that these conditions were not even imposed at the time of his

original sex offense conviction. Nor, he contends, are the

conditions reasonably related to his characteristics, because he

has not committed similar conduct in the intervening eighteen

years, and there is no evidence to suggest that he has a propensity

to commit a future sex offense.

In United States v. Medina, we vacated a condition

barring a defendant's access to otherwise legal pornography as not

reasonably related because "there [was] no evidence in the record

to indicate that such material contributed to [the defendant's]

offense or would be likely to contribute to recidivism in the

future given [his] particular history and characteristics." 779

F.3d 55, 63 (1st Cir. 2015) (internal quotation marks omitted). 

Similarly, there is nothing in the record before us to indicate

that the presence of a child in the home contributed to Del ValleCruz's offense, nor that residing with a child would increase Del

Valle-Cruz's risk of recidivism.

It is also troubling that the conditions were imposed so

many years after Del Valle-Cruz's underlying sex offense

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conviction. In Morales-Cruz, 712 F.3d at 75-76, we analyzed six

cases from other circuits that reversed sentencing conditions while

expressing this same concern. Ultimately, we determined that all

of those cases were distinguishable. Id. However, the defendant

in Morales-Cruz challenged the imposition of sex offender

treatment, not conditions barring contact with minors. Id. at 72. 

Here, given the gravity of the liberty interest at stake, the

concept of basing such an invasive condition on an offense many

years in the past remains disturbing. Although not binding on us,

we note our sister circuits continue to take a dim view of

equivalent sentencing conditions based on temporally remote sex

offense convictions where there has been no subsequent similar

conduct. 

The Seventh Circuit, in Goodwin, 717 F.3d at 523, vacated

a condition prohibiting contact with minors, saying, "We are

skeptical that such a sweeping condition could be reasonably

related to [defendant's] offense, history and characteristics,

particularly since there is no evidence in the record of any

incidents involving minors in the almost two decades since

[defendant's] 1994 conviction." Notably, the district court in

Goodwin "did not discuss its reasons for imposing" the special

conditions, leading the Seventh Circuit to caution that "district

courts' ability to impose no-contact conditions does not absolve

them of their responsibility to explain why such conditions are

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warranted in particular cases." Id. at 515, 524. In United States

v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014), the Tenth Circuit

held that a sex offense conviction twelve years earlier, absent

either a history of other sexual offenses or evidence of a

propensity to commit future sex offenses, was "simply too remote in

time, standing alone" to justify the imposition of conditions that

would limit the defendant's ability to live with his children.8 

We find the reasoning of these cases persuasive in this

particular instance. Here, although Del Valle-Cruz was convicted

of violating SORNA by failing to register, that offense "is not

itself a sex offense." United States v. Mercado, 777 F.3d 532, 538

(1st Cir. 2015) (citing U.S.S.G. § 5D1.2, cmt. n.1). Del ValleCruz has not committed a sex offense in the eighteen years since

his original conviction. Moreover, the special conditions were not

imposed when Del Valle-Cruz was initially sentenced for the earlier

sex offense. In the intervening years, although Del Valle-Cruz has

8

In United States v. Bear, a defendant who had been convicted

in 2001 of two counts of committing lascivious acts with a child

(having forced one child under twelve to engage in oral sex and

intercourse, and fondled the genitals of another child), appealed

the conditions imposed after his second failure-to-register

conviction. 769 F.3d 1221, 1225 (10th Cir. 2014). The defendant

challenged conditions ordering sex offender treatment, as well as

conditions prohibiting contact with minors. Id. at 1226. The 10th

Circuit cited our decision in Morales-Cruz as authority for

affirming sex offender conditions for SORNA violations, and

affirmed the imposition of sex offender treatment, but vacated the

restrictions on contact with minors because they posed a greater

deprivation of liberty than reasonably necessary. Id. at 1226-27,

1229.

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committed other crimes, he has not been arrested for any crime

sexual in nature or involving a minor.9 Like Goodwin, the district

court offered no hint of the reasoning behind the imposition of

these conditions. 717 F.3d at 515. There is simply nothing in the

record before us that indicates a propensity to commit a future sex

offense, particularly as it relates to minors. 

Although we recently upheld similar restrictions on

contact with minors in Santiago, 769 F.3d at 4-5, we note that the

facts surrounding the underlying sex offense conviction in Santiago

are distinguishable. The defendant in Santiago was convicted of

failing to register in 2012; ten years earlier, he had been

convicted of lewd molestation and child abuse after molesting the

seven-year-old daughter of his live-in girlfriend. Id. We

affirmed the imposition of the "undoubtedly stringent" conditions

limiting Santiago's contact with minors in part because his "living

arrangements mirrored those from when the [underlying sex offense]

occurred." Id. at 9. The same danger does not exist here. Del

Valle-Cruz did not victimize a child in his home. In fact, he has

two older (now adult) children, with whom he lived without incident

for six years. We also note that the district court in Santiago

9Since his 1997 sex offense conviction, in addition to failing

to register as a sex offender, Del Valle-Cruz had been convicted of

possessing contraband in a penal institution (1998), petit larceny

(2002), possession of marijuana (2002), and domestic battery

(2003).

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reasonably explained the necessity of imposing the conditions;

here, the district court offered no justification whatsoever. 

More recently, in Mercado, 777 F.3d at 535, we reviewed

for abuse of discretion a condition that prohibited a defendant

from contact with minors (including his two children) without the

prior approval of his probation officer. We find Mercado and Del

Valle-Cruz's case factually dissimilar. The defendant in Mercado

was convicted of indecent assault in 2002 -- a charge that arose

from the rape of a fifteen-year-old girl. Id. at 534. This was

not an isolated incident; his resume of criminal activity spanned

a period of over twenty years. Id. By the time he pled guilty to

failing to register as a sex offender, some ten years after the

rape, he had racked up "over 45 infractions running the gamut from

drug offenses to property crimes to violent crimes (such as

domestic assault and domestic battery)." Id. This was a spree so

impressive that the district court observed "the defendant had what

may have been one of the most profuse criminal histories" that

court had ever seen. Id. Even after his arrest for failing to

register, he didn't allow the terms of his pretrial release to

break his stride. Id. Instead, while awaiting trial, he continued

to fail to register, blew off a court appearance for driving

without a license, tested positive for cocaine use and scored "no

fewer than ten instances of failing to comply with location

-24-
restrictions." Id. Not surprisingly, the court determined that he

presented an "obvious risk of recidivism." Id. at 539.

The Mercado court spun "a web of special conditions" in

the hope 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." Id. at 535. Among these

conditions were restrictions on living with or interacting with

minors. Id. In imposing these conditions, the court gave

detailed, case-specific reasons for their imposition, explaining,

"the 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." Id. In addition to demonstrating that the

conditions were related to the defendant's history and

characteristics, the court explained that the conditions "would

promote the defendant's rehabilitation," "were intended to mitigate

the risk of this particular defendant re-offending," and "promoted

public safety." Id. at 538-39. We affirmed the challenged

conditions, holding that "the court specifically linked the

rehabilitative and deterrent features of the supervised release

term and its conditions to the defendant's lengthy criminal history

and his persistent failure to comply with the terms of his pretrial

release." Id. at 539.

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The Mercado court's careful explanation of its reasoning

made plain the conditions were reasonably related to the

defendant's history and characteristics, and to the goals of

sentencing. By contrast, the district court here offered no

explanation whatsoever for the conditions imposed on Del ValleCruz, whose criminal history is not nearly as lengthy or as violent

as that of the defendant in Mercado. Aside from failing to

register, Del Valle Cruz has stayed out of trouble since 2003.

While the Mercado court crafted its conditions to give

the defendant "a chance to break the 'cycle of crime' that

characterized his adult life," id. at 535, Del Valle-Cruz's adult

history, though blemished, simply does not come close to resembling

Mercado's. Since moving to Puerto Rico, he has taken affirmative

steps to turn his life around. According to his PSR, he has

completed 90 credits of a BA in Computer Science, and at the time

of his arrest, was employed by a newspaper as a telemarketer, while

also working freelance as a computer repair technician. The

conditions that were carefully reasoned (and amply explained) in

Mercado do not serve the same purpose in this case. Mercado's

criminal history showed little regard for the welfare of his

children or for maintaining a healthy and nurturing family life. 

Del Valle Cruz, on the other hand, once lived successfully with his

older children, and his schooling and employment demonstrate

increasing stability in recent years.

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The district court provided us no clue as to its

reasoning, and our review of the record offers little to enlighten

us. Although the PSR recommends the conditions, it offers nothing

in its recitation of the defendant's history or characteristics to

justify them, and absent any basis in the record, their imposition

appears to be arbitrary. We fail to see how prohibiting Del ValleCruz from living with his son and having a normal family life (that

would involve at least some contact with minors) is related to

either his offense of failing to register, or to his history and

characteristics. 

Deprivation of Liberty

Del Valle-Cruz also argues that the effect of these

conditions would deprive him of his liberty interest in maintaining

a relationship with his son. We have frequently stated that

conditions may not deprive a defendant of "more liberty than is

reasonably necessary." Perazza-Mercado, 553 F.3d at 70. The

government points to Del Valle-Cruz's initial offense against a

fifteen year old as justification for imposing the prohibition

against contact with all minors, including his own son. The

fallaciousness of this argument is indicated by the government's

failure to explain why these conditions do not deprive Del ValleCruz of more liberty than is reasonably necessary. Instead, the

government relies on an escape hatch -- that Del Valle-Cruz can

seek a modification of these conditions. 

-27-
In Mercado, we affirmed similar conditions, saying "the

conditions imposed by the district court do not comprise an

outright ban on the defendant's ability to associate (or even live)

with his minor children. They merely require that his association

with his children be pre-approved by the probation officer and take

place in the presence of an adult familiar with his criminal

history." 777 F.3d at 539. However, as previously explained, the

Mercado court's rationale for the conditions was clear and

detailed, and grounded in concern over his extensive criminal

history. "[T]he court specifically linked the rehabilitative and

deterrent features of the supervised release term and its

conditions to the defendant's lengthy criminal history and his

persistent failure to comply with the terms of his pretrial

release."10 Id. 

Because conditions that would impair a defendant's 

relationship with his child involve a very significant deprivation

of liberty, they require a greater justification. See Medina, 777

F.3d at 72. The explanation for the imposition of these conditions

10Similarly, in United States v. Smith, 436 F.3d 307, 310 (1st

Cir. 2006), we affirmed the imposition of a condition that

prohibited a defendant from contact with his minor daughter "unless

and until the Probate Court ordered otherwise." The condition was

imposed after the defendant violated the terms of his supervised

release by causing a disruption at two schools and a school

district office, demanding to see his daughter. Id. at 310. In

imposing the condition, the Smith court expressed a concern that

members of the public, including the daughter, needed to be

protected from the defendant -- a concern not present here. Id. at

312. 

-28-
on Del Valle-Cruz is entirely missing, as is any indication in the

record that his history and characteristics should evoke similar

concerns. The fact that the probation officer retains the

discretion to allow a father to contact his son cannot relieve the

district court of the obligation to provide a reasoned explanation

for giving the officer that power in the first place. We have

previously stated that the imposition of these conditions by the

court appears to be arbitrary. Likewise, Probation's

recommendation of the conditions with no explanation appears

equally arbitrary. We therefore decline the government's

invitation to punt by placing a probation officer between parent

and child.

Our sister circuits have refused to delegate this

authority to Probation absent some justification for imposing the

condition. The Third Circuit warned that courts should "proceed

cautiously in imposing any condition that could impact [a

defendant's] parental rights absent sufficiently reliable

supporting evidence." United States v. Voelker, 489 F.3d 139, 155

(3d Cir. 2007). In Voelker, the court vacated a condition

restricting the defendant from associating with minors without the

prior approval of a probation officer, and remanded for further

findings of fact after determining that the district court had

"delegated absolute authority to the Probation Office to allow any

such contacts while providing no guidance whatsoever for the

-29-
exercise of that discretion." Id. at 154. As a result of this

delegation, the "[p]robation [o]fficer becomes the sole authority

for deciding if [the defendant] will ever have unsupervised contact

with any minor, including his own children, for the rest of his

life." Id. The Voelker court acknowledged that parental rights

are not absolute, but stated that before restrictions can be placed

on those rights "there must be sufficient evidence to support a

finding that children are potentially in danger from their

parents." Id. (internal quotation marks omitted).

The Fourth Circuit held a prohibition on contact with

minors to be error when it affected a defendant's relationship with

his family in the absence of any justification. Worley, 685 F.3d

at 408. The Worley court held "if the evidence fails to show that

the defendant poses a danger to his own child or loved one, a

condition that limits access to those individuals is not reasonably

necessary to protect those individuals or further the defendant's

rehabilitation." Id. Likewise, the Eighth Circuit modified a

sentencing condition that would have prevented a defendant 

convicted of receiving child pornography from having any contact

with his daughter.11 Davis, 452 F.3d at 995. Despite the sexual

nature of the conviction, the Davis court found that the lower

11It is worth noting that in both Worley and Davis, the court

struck down conditions that, like Voelker, allowed at least some

contact if first approved by a probation officer. 685 F.3d at 407;

452 F.3d at 994. 

-30-
court had failed to make an "individualized analysis" of the case;

an analysis that would have revealed no evidence in the record that

the defendant had ever sexually abused a child, or would pose a

danger to his daughter. Id. The court held that when a condition

would interfere with a defendant's "constitutional liberty interest

in raising his own child, the government may circumscribe that

relationship only if it shows that the condition is no more

restrictive than what is reasonably necessary." Id. Finally, and

most recently, the Tenth Circuit vacated a condition prohibiting a

defendant from contact with minors without prior approval from

probation, saying, "Given the importance of this liberty interest,

special conditions that interfere with the right of familial

association can do so only in compelling circumstances, . . . and

it is imperative that any such restriction be especially fine-tuned

to achieve the statutory purposes of sentencing." Bear, 769 F.3d

at 1229 (internal quotation marks and citations omitted). Given

the facts of Del Valle-Cruz's case, we find the reasoning of our

sister circuits persuasive in this instance.

Our review of the record reveals no showing that 

conditions 13 and 15 are no more restrictive than reasonably

necessary, and as stated above, there is nothing to indicate that

Del Valle-Cruz poses a danger to his son. We have found that the

conditions are not reasonably related to either the offense, or to

Del Valle-Cruz's history and characteristics. At the same time,

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these conditions prohibiting contact with, or residing with minors

would interfere with his relationship with his son, and deprive him

of far more liberty than is reasonably necessary. Even were the

conditions amended to allow him to live with his son, the

prohibition against contact with other minors would ensure that Del

Valle-Cruz could not engage in the normal rhythms and pleasures of

parenting, such as attending birthday parties, family gatherings,

or school outings. For those reasons, we vacate conditions 13 and

15.

III.

Conclusion

We dismiss Del Valle-Cruz's appeal of his conviction, as

well as the conditions imposing sex offender treatment, and

prohibiting working with or volunteering with minors. We vacate

conditions 13 and 15, and we remand to the district court for resentencing consistent with this opinion. The re-sentencing shall

be limited to the terms of supervised release, and at that time,

given the concerns we have expressed herein, the district court may

revisit all of the special conditions. United States v. Francois,

715 F.3d 21, 34 (1st Cir. 2013) ("[P]recedent in this Circuit

establishes that 'an appellate ruling invalidating a sentence . . .

may implicate the trial judge's comprehensive, interdependent

imposition of a penalty and thus require resentencing on all

counts.'" (quoting United States v. Melvin, 27 F.3d 710, 712 (1st

-32-
Cir. 1994))). At resentencing the district court should explain

its reasons for the imposition of conditions and provide factual

findings supported by the record.

-Concurring Opinions Follows-

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TORRUELLA, Circuit Judge, concurring, with whom THOMPSON,

Circuit Judge, joins in the concurrence. I join the court's

opinion but write separately to note my continued and vehement

disagreement with United States v. Morales-Cruz, 712 F.3d 71 (1st

Cir. 2013), a case that forecloses us from finding a miscarriage of

justice with respect to the sex offender treatment condition. See

Slip. Op. at 12-13. As I explained in my dissent in Morales-Cruz,

a case remarkably similar to the one presently before us, "the

district court's imposition of the special condition of supervised

release -- participation in a sex offender treatment program with

accompanying requirements -- [wa]s not reasonably related to the

factors set forth in section 3553(a)(1)," nor was it "sufficiently

related to one or more of the permissible goals of supervisory

release." Morales-Cruz, 712 F.3d at 76 (Torruella, J., dissenting)

(internal quotation marks and citations omitted). The same is true

here. The district court inexplicably failed to give any

explanation as to why it was imposing this condition on Del ValleCruz or how the condition was reasonably related either to the

nature and circumstances of his failure to register offense or to

his criminal history and characteristics. Yet, because of MoralesCruz, this panel cannot remedy what, in my view, is a clear abuse

of discretion and miscarriage of justice by the district court.

Unfortunately, this is not an isolated occurrence. There

is a disturbing trend in this circuit of district courts imposing

-34-
similar boilerplate conditions of supervised release on every

defendant convicted of a failure to register charge under SORNA.12

Even more troubling, these district courts often neglect to provide

any rationale for the imposition of these harsh and exacting

conditions; instead, they simply note that the conditions "are

fairly standard" in these types of cases. See, e.g., United States

v. Mercado, 777 F.3d 532, 535 (1st Cir. 2015) (approving of the

district court's thorough explanation for why numerous conditions

of supervised release were imposed but also quoting the district

court as stating that the no contact with minors conditions "are

fairly standard in sex offender cases"). Morales-Cruz implicitly

endorses this practice through its faulty reasoning. Thus, not

only is Morales-Cruz wrong on the merits, but it also provides

fodder for a disturbing and questionable practice. I strongly urge

my colleagues to reconsider this erroneous decision.

12Like Del Valle-Cruz, these conditions include invasive sex

offender treatment and proscription against any contact with

minors.

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