United States Court of Appeals

For the First Circuit

Nos. 21-1708, 22-1610

UNITED STATES OF AMERICA,

Appellee,

v.

NATANAEL ACEVEDO-OSORIO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Montecalvo, Lipez, and Thompson,

Circuit Judges.

José David Rodríguez, Research and Writing Specialist, with 

whom Eric Alexander Vos, Federal Public Defender, and Franco L. 

Pérez-Redondo, Assistant Federal Public Defender, Supervisor, 

Appeals Division, were on brief, for appellant. 

Gregory B. Conner, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, and Maria E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, were on brief, for appellee. 

September 24, 2024
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LIPEZ, Circuit Judge. Appellant Natanael Acevedo-Osorio 

("Acevedo") pleaded guilty to one count of coercion and enticement 

of a minor. Pursuant to the plea agreement, Acevedo and the 

government jointly recommended a sentence of 120 months' 

imprisonment, the statutory minimum. Though such a sentence fell 

well below the Guidelines sentencing range calculated for Acevedo, 

the government offered no explanation for its sentencing 

recommendation at the sentencing hearing. The court proceeded to 

sentence Acevedo to 292 months in prison -- more than double the 

sentence asked for by the parties, an increase of fourteen years. 

The court also imposed a condition of supervised release 

prohibiting Acevedo from having unsupervised contact with any 

minor, including his children, and it ordered him to pay a special 

assessment and restitution. 

Acevedo now raises a bevy of challenges to this sentence 

on appeal, highlighting both the government's lack of any 

explanation for the negotiated sentence at the sentencing hearing 

and the severity of the sentence and release conditions imposed.

We agree with Acevedo that the government breached the plea 

agreement, as its laconic approach to the sentencing hearing 

"undermine[d] the benefit of the bargain." United States v. 

Frazier, 340 F.3d 5, 10 (1st Cir. 2003) (internal quotation marks 

omitted). Even so, we conclude that -- under the circumstances 

now before us -- the sentencing court's tacit endorsement of the 
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government's breach does not constitute plain error, and we 

otherwise affirm the length of the sentence as reasonable. For 

the reasons laid out below, we also affirm the restriction on 

Acevedo's unsupervised contact with his children, but we vacate 

and remand the special assessment and restitution orders. 

I.

A. Factual Background

Our description of the facts comes from the plea 

agreement, the change of plea colloquy, the presentence 

investigation report ("PSR"), and the transcript of the sentencing 

hearing. See United States v. Diaz-Serrano, 77 F.4th 41, 44 (1st 

Cir. 2023). 

The relevant events concern Acevedo's sexual contact

with and solicitation of sexually explicit material from S.Q.R. 

Acevedo met S.Q.R. in 2016 at a boxing gym. The first sexual

contact occurred in 2018, when Acevedo was twenty-five and S.Q.R. 

was fifteen. Over the ensuing months, Acevedo subsequently had

sex with S.Q.R. many more times, and, on one occasion, Acevedo 

took pictures of S.Q.R. without her knowledge while she slept, 

including one in which she was naked, which he then threatened to 

disseminate. When S.Q.R.'s mother became aware of Acevedo's 

treatment of her daughter, she reported Acevedo to the police1 and 

1 The record does not explain the outcome of this complaint 

to the police. 
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sent S.Q.R. from Puerto Rico to Pennsylvania to live with S.Q.R.'s 

father.

Acevedo continued to communicate with S.Q.R., using 

messaging apps and social media, to solicit and receive sexually 

explicit depictions of S.Q.R. On one occasion, during a video 

chat, he asked S.Q.R. to perform sexual acts, and, unbeknownst to 

her, recorded her doing so. Acevedo threatened to disseminate the 

video unless she sent him more sexually explicit material, which 

she did. Acevedo also pressured S.Q.R. to return to Puerto Rico 

and live with him, which S.Q.R. unsuccessfully attempted to do. 

After this event, her father confiscated her cell phone, but the 

two maintained communication using another device. 

Eventually, Acevedo sent a naked picture of S.Q.R. to 

one of her coworkers, which prompted S.Q.R. to quit her job and 

move to Oklahoma to live with her brother. Afterward, Acevedo 

continued to solicit and receive explicit photos from S.Q.R., which 

he again threatened to distribute. He also demanded to know her 

whereabouts, commanded her to respond to his communications 

instantly, and peppered her with jealous questions about her sexual 

activity. Whenever she failed to respond promptly or provide 

explicit photos of herself, he berated her with foul language. 

All told, between June and August of 2019, the period charged in 

the indictment, when S.Q.R. was 16 years old, Acevedo received at 

least forty sexually explicit photos of her.
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S.Q.R. returned to Puerto Rico in August 2019. After 

learning of her return, Acevedo instructed her to see him within 

forty-eight hours. He threatened to pay someone to burn her 

mother's car, break down her door, and abduct her if she refused.

That night, the car of S.Q.R.'s mother exploded after Acevedo 

purportedly paid someone to set it on fire. 

B. The Indictment and Plea Agreement

In 2019, a grand jury returned a three-count indictment 

against Acevedo, charging him with the production of child 

pornography, see 18 U.S.C. § 2251(a), (e) (Count 1); coercion and 

enticement of a minor, see 18 U.S.C. § 2422(b) (Count 2); and 

receipt of child pornography, see 18 U.S.C. § 2252(a)(2)(A), 

(b)(1) (Count 3). Acevedo agreed to plead guilty to coercion and 

enticement of a minor in exchange for the dismissal of Counts 1 

and 3.

The plea agreement included a total offense level 

calculation of 29, reflecting a base offense level of 32 because 

the offense involved "causing . . . a minor to engage in sexually 

explicit conduct for the purpose of producing a visual depiction 

of such conduct," U.S.S.G. § 2G1.3(c)(1); see also id. § 2G2.1(a), 

with a three-level reduction for acceptance of responsibility, see

id. § 3E1.1. The parties did not stipulate to a criminal history 

category ("CHC"). Regarding the sentence to be recommended, the 

agreement stated:
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After due consideration of the relevant 

factors enumerated in 18 U.S.C. § 3553(a), in 

exchange for the defendant pleading guilty to 

Count Two of the [i]ndictment, the parties 

will request the mandatory minimum sentence of 

one hundred twenty (120) months. The parties 

agree that the defendant shall serve at least 

five years of supervised release. The 

defendant agrees that the sentence range[2] is 

reasonable pursuant to Title 18, United States 

Code, § 3553(a).

In the statement of facts incorporated into the plea 

agreement, Acevedo admitted only that he "requested [S.Q.R.] to 

send him sexually explicit images of her through the WhatsApp 

Messaging Application and then threatened to disseminate her 

images if she did not comply with his demands." The statement 

also noted that S.Q.R.'s phone contained sexually explicit images 

of herself with timestamps corresponding to written requests from 

Acevedo for such images. The district court accepted Acevedo's 

guilty plea.

C. The PSR

The PSR outlined Acevedo's alleged acts in much more 

specific and lurid detail than the admissions in the plea 

agreement. Of particular significance, the PSR revealed that 

Acevedo had not only threatened to disseminate explicit images of 

S.Q.R. but had actually done so; that he had received at least 

2 Notwithstanding use of the word "range," we understand this 

word to refer to the jointly recommended 120-month sentence. The 

parties do not suggest otherwise.
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forty explicit images of her; that he had frequent sexual contact 

with her starting when she was fifteen; and that he had threatened 

to pay someone to burn her mother's car shortly before it exploded.

With one exception,3 this information was drawn from unsworn, 

arguably uncorroborated statements by S.Q.R. to law enforcement 

and in her victim impact statement. 

The PSR calculated a total offense level of 38. As in 

the plea agreement, this calculation included a base offense level 

of 32, see U.S.S.G. §§ 2G1.3(c)(1), 2G2.1(a), and a three-level 

decrease for acceptance of responsibility, see id. § 3E1.1. But 

the calculation in the PSR added a two-level increase for knowingly 

distributing sexually explicit material involving a minor, see id.

§ 2G2.1(b)(3); a two-level increase for using a computer or 

interactive computer service to entice a minor to engage in sexual 

conduct, see id. § 2G2.1(b)(6)(B); and a five-level increase for 

engaging in a pattern of prohibited sexual activity with a minor, 

see id. § 4B1.5(b).

The PSR also included a criminal history score of 

five -- three points for a prior firearms conviction, see id.

§ 4A1.1(a), and two points for committing the instant offense 

during a term of probation.4 That score placed Acevedo in the CHC 

3 According to the PSR, the FBI case agent verified the fact 

that S.Q.R. sent Acevedo at least 40 sexually explicit images.

4 In 2023, the Guidelines were amended to eliminate the 

automatic application of two criminal history points for offenses 
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of III, yielding a Guidelines sentencing range of 292-365 months. 

U.S.S.G. ch. 5, pt. A (sentencing table). The PSR noted that 

Acevedo had experienced trauma, including a turbulent childhood 

and the murders of both his father and brother, as a mitigating 

factor to consider. On the other hand, the PSR stated that 

Acevedo's threatening and abusive conduct, as well as his violation 

of probation, "demonstrat[ed] [Acevedo's] total disregard for the 

law."

D. The Sentencing Hearing

At the sentencing hearing, Acevedo's counsel objected to 

the PSR's reliance on S.Q.R.'s unsworn statements in its statement 

of facts and victim impact statement. Counsel also argued that 

some of the statements were unrelated to the crime of conviction. 

The sentencing court overruled that objection, stating broadly 

that "the information provided by the victim is reliable and 

verified enough" to include in the PSR as discovery information 

pertinent to the indicted conduct and noting that the sentencing 

enhancements supported by those statements do not require a 

conviction.

Counsel next objected to the recommendation in the PSR

of a special assessment of $5,000 pursuant to the Justice for 

committed during probation previously imposed under U.S.S.G. 

§ 4A1.1(d). This amendment is not relevant to the issues on 

appeal. 
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Victims of Trafficking Act ("JVTA"), see 18 U.S.C. § 3014(a), 

arguing that it was inapplicable because Acevedo was indigent. 

The court denied that objection but said it would reconsider if

"Mr. Acevedo can later indicate that he will not be able to pay 

the $5,000 because of inability to have a job." Lastly, counsel 

objected to the PSR's proposed condition of supervised release 

that would restrict him from having unsupervised contact with his 

own minor children.5 At the court's prompting, the probation 

officer explained that Acevedo would be able to contact his 

children with a chaperone, and that the restriction could later be 

lifted with the approval of his probation officer, his mental 

health treatment provider, and the children's mothers. On that 

understanding, the court overruled the objection.

With respect to Acevedo's requested sentence, Acevedo's 

counsel emphasized Acevedo's turbulent upbringing and the recent 

murder of his brother as mitigating factors. She also pointed to 

the ongoing support of his family, the mothers of his children, 

and his boxing coach as evidence of his good character. Lastly, 

counsel noted that Acevedo would have to serve one year in state 

5 The proposed condition provided: "[Acevedo] shall not have 

unsupervised contact as to any other related or non-related child 

below the ages of 18, specifically his children, unless determined 

to be appropriate by the treatment provider and the Probation 

Officer and always in the presence of his children's mothers." To 

be clear, Acevedo has not challenged the restriction against 

unsupervised contact with minor children other than his own. 
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prison due to the revocation of his probation and would have to 

register as a sex offender as additional consequences of his crime. 

Counsel argued that these considerations supported the jointly 

recommended 120-month sentence. 

The government offered only the following: "Good 

morning, Your Honor. On behalf of the Government, we would be 

recommending 120 months pursuant to the plea agreement. Thank 

you."

Agreeing with the PSR, the court calculated a total 

offense level of 38 and a CHC of III, for a Guidelines sentencing 

range of 292 to 365 months. After recounting Acevedo's criminal 

history and the PSR's description of events, the court found 

Acevedo's "abusive and threatening conduct" outweighed any 

mitigating circumstances. The court stated that the recommended 

120-month sentence "does not reflect the seriousness of Mr. 

Acevedo's offense, does not promote respect for the law, does not 

protect the public from future crimes from Mr. Acevedo, and does 

not address the issues of deterrence and punishment." It then 

sentenced Acevedo to 292 months' imprisonment, the bottom of the 

calculated Guidelines sentencing range. 

Consistent with the recommendation in the PSR, the court 

also imposed a fifteen-year term of supervised release, three times 

greater than the five-year term recommended by the plea agreement,

and the condition that he have no unsupervised contact with any 
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minors, including his children. The court ordered the $5,000 JVTA 

assessment. The court also ordered Acevedo to pay restitution but 

opted to defer deciding the amount to later proceedings. In a 

subsequent filing, the government requested $3,275 of restitution 

for the destruction of S.Q.R.'s mother's car. Before Acevedo could 

file a response, the court granted that request.

In this timely appeal, Acevedo argues that the 

government breached the plea agreement. He also challenges the 

sentence as procedurally unreasonable, and he seeks vacatur of the 

restriction on unsupervised access to his children, the JVTA 

assessment, and the restitution order. 

II.

We begin with Acevedo's 292-month sentence. 

A. Breach of the Plea Agreement

Given that Acevedo did not assert that the government 

breached the plea agreement during the sentencing proceedings, our 

review is for plain error. See United States v. Sierra-Jiménez, 

93 F.4th 565, 570 (1st Cir. 2024). To satisfy this "rigorous"

standard, United States v. Ortiz, 741 F.3d 288, 293 (1st Cir. 

2014), Acevedo must show "(1) that an error occurred (2) which was 

clear or obvious and which not only (3) affected the [appellant's] 

substantial rights, but also (4) seriously impaired the fairness, 

integrity, or public reputation of judicial proceedings," United 
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States v. Cheveres-Morales, 83 F.4th 34, 42-43 (1st Cir. 2023)

(alteration in original).

1. Background Law

"There is no doubt whatsoever that plea agreements play 

an 'important role . . . in our criminal justice system.'" United 

States v. Cortés-López, 101 F.4th 120, 127 (1st Cir. 2024)

(omission in original) (quoting Frazier, 340 F.3d at 10). After 

all, plea bargains facilitate the "prompt" administration of 

justice, thus warding off the "corrosive impact" on defendants of 

lengthy pretrial detention, "protect[ing] the public" when such 

detention is not imposed, and "enhanc[ing] . . . the 

rehabilitative prospects of the guilty." Frazier, 340 F.3d at 10

(quoting Santobello v. New York, 404 U.S. 257, 261 (1971)). Plea 

bargaining also "benefits a host of [other] important 

constituencies," including the government and the public in the 

form of preserved resources and efficient law enforcement, as well 

as victims of crimes, who secure a quick and final judgment. 

Jeffrey Bellin, Plea Bargaining's Uncertainty Problem, 101 Tex. L. 

Rev. 539, 548-49 (2023). 

Pleading guilty is also a weighty decision for a 

defendant, who typically agrees to waive important constitutional 

rights in exchange for the government's promise to lend its 

"prestige" to the defendant's requested sentence, and with it the 

added "potential to influence the district court" to accept the 
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agreed-upon sentence. United States v. Velez Carrero, 77 F.3d 11, 

11-12 (1st Cir. 1996) (emphasis omitted). At bottom, hence, our

strict enforcement of plea agreements stems from our desire to 

protect defendants from forsaking their fundamental trial rights 

in exchange for empty promises, see Frazier, 340 F.3d at 10. 

Accordingly, to preserve faith in the plea-bargaining process, "we

'hold prosecutors to the most meticulous standards of promise and 

performance.'" United States v. Brown, 31 F.4th 39, 50 (1st Cir. 

2022) (internal quotation marks omitted) (quoting United States v. 

Marín-Echeverri, 846 F.3d 473, 478 (1st Cir. 2017)). As this 

formulation implies, traditional contract principles guide our 

assessment of the plea agreement and the government's adherence to 

it. Id.; see also Puckett v. United States, 556 U.S. 129, 137 

(2009) ("[P]lea bargains are essentially contracts."). 

Broadly speaking, the government may breach a plea 

agreement in two ways. First, it can breach the agreement's 

express terms by doing something that it promised not to do, see, 

e.g., Santobello, 404 U.S. at 262 (finding breach when government 

promised to make no sentencing recommendation but did so), or 

failing to do something that it promised to do, see, e.g., Velez 

Carrero, 77 F.3d at 11-12 (finding breach when government promised 

to oppose an offense level adjustment but instead "ma[de] no 

suggestion to the court" as to a potential adjustment).
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Second, even when the government is in "technical 

compliance" with the plea agreement's express terms, the 

prosecutor's actions may implicitly "undercut" the deal. United 

States v. Almonte-Nuñez, 771 F.3d 84, 89, 90 (1st Cir. 2014). As 

we have often stated, the government may not merely pay "lip 

service" to the plea agreement, "reaffirm[ing] a promise to the 

defendant out of one side of [its] mouth" but "try[ing] to subvert 

it out of the other side." Id. at 91. After all, "as in all 

contracts, plea agreements are accompanied by an implied 

obligation of good faith and fair dealing." Frazier, 340 F.3d at 

11 (quoting United States v. Ahn, 231 F.3d 26, 35-36 (D.C. Cir. 

2000)); see also Cortés-López, 101 F.4th at 128 ("[T]he defendant 

is entitled to both the 'benefit of the bargain struck in the plea 

deal and to the good faith of the prosecutor.'" (quoting United 

States v. Lessard, 35 F.4th 37, 42 (1st Cir. 2022))).

While there is no "magic formula" for evaluating claims 

of breach, United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 

2004), the government's "overall conduct must be reasonably 

consistent with making [the agreed-upon] recommendation, rather 

than the reverse," United States v. Canada, 960 F.2d 263, 269 (1st 

Cir. 1992). Put another way, we must examine the "net effect of 

the government's behavior" to determine whether, on balance, it 

has "undermine[d] the benefit of the bargain." Cortés-López, 101 

F.4th at 128 (internal quotation marks omitted) (quoting Frazier, 
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340 F.3d at 10). We thus must examine the totality of the 

circumstances in a case-by-case approach. Id.

Typically, cases of implicit breach involve the 

government saying or doing something that could signal to the 

sentencing court its dissatisfaction with the agreed-upon 

sentence. See United States v. Miranda-Martinez, 790 F.3d 270, 

275 (1st Cir. 2015) (noting that breach may occur when the 

prosecutor engages in "implicit advocacy" for a result contrary to 

the plea agreement). In Canada, for instance, we found that the 

prosecutor had engaged in such a wink and a nod by making only 

"grudging and apologetic" comments in support of the agreed-upon 

sentence while stressing the need for "a lengthy period of 

incarceration" and emphasizing facts that supported an enhancement 

not contemplated by the plea agreement. 960 F.2d at 269 (internal 

quotation marks omitted). Likewise, in Gonczy, the prosecutor 

ostensibly stood by the plea agreement's recommendation but then 

emphasized the harmful consequences of the defendant's acts so 

much that no "impartial observer [would] think that [the

government] thought [the agreed-upon sentence] was 

. . . adequate." 357 F.3d at 54; see also United States v. 

Mojica-Ramos, 103 F.4th 844, 850 (1st Cir. 2024) (finding breach 

where government called the defendant "exception[ally]" dangerous 

and adduced copious evidence of uncharged criminal behavior); 

Cortés-López, 101 F.4th at 132-33 (finding breach where, 
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unprompted, the government endorsed the Guidelines calculation in 

the PSR rather than the less harsh calculation in the plea 

agreement).

On the other hand, the government ordinarily has no 

"obligation . . . to further explain its recommendation," even in 

the case of a downward variance, "when such an obligation is not 

explicit in the plea agreement." United States v. Cruz-Agosto, 

102 F.4th 20, 26 (1st Cir. 2024); see also Lessard, 35 F.4th at 44 

(holding that, unless contemplated by the plea agreement, the 

government has "no affirmative obligation of either advocacy or 

explication"). Nor must the government present the recommended 

sentence enthusiastically. Cruz-Agosto, 102 F.4th at 25. Indeed, 

unless expressly disallowed by the terms of the plea agreement, 

the government has a right to explain to the court its rationale 

for agreeing to and recommending the sentence in terms unfriendly 

to the defendant, by, for example, explaining that the sentence is 

warranted by the need for punishment, so long as it does not imply 

that a greater sentence is called for. See, e.g., Brown, 31 F.4th 

at 50-51 (finding no breach where, despite emphasizing that the 

defendant had acted "reckless[ly]," the government's conduct was 

consistent with recommending the agreed-upon sentencing range).

These limitations accord with traditional contract 

principles. While the government must act in good faith, Frazier, 

340 F.3d at 11, that duty only prohibits the government from 
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interfering with a defendant's reasonably expected benefit of the 

bargain, Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 

(Fed. Cir. 2014). It does not impose upon the government 

additional "duties beyond those in the express contract or create 

duties inconsistent with the contract's provisions." Id. (quoting 

Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 

(Fed. Cir. 2010)); but see id. (explaining that the implied duty 

of good faith and fair dealing "prevents a party's acts or 

omissions that, though not proscribed by the contract expressly, 

are inconsistent with the contract's purpose and deprive the other 

party of the contemplated value").

Notwithstanding our general rule that the government has 

no implied duty to explain a plea deal's recommended sentence, we 

have recognized that the government may be obliged to offer "some 

minimal explanation" in the rare circumstance in which the parties 

agree to jointly recommend a sentence that amounts to such a 

"dramatic downward variation" that, without some justification by 

the government, "the district court [would be] left to speculate 

about what rationale might reasonably support such a seemingly 

off-kilter, well-below guidelines recommendation." Cortés-López, 

101 F.4th at 132-33. Thus, in Cortés-López, we found that the 

government was obliged to provide some justification for its 

recommendation, pursuant to the plea agreement, of what appeared 

to be an extremely lenient sentence -- twenty-four months' 
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probation -- as compared to the calculated low-end sentence of 

seventy-eight months' imprisonment laid out in the PSR. Because

the recommended sentence differed from the applicable Guidelines 

sentence so drastically, in both degree and in kind, the 

government's "reserve" could only be interpreted as "a repudiation 

of the agreement."6 Id. at 133. 

Finally, despite the government's obligation to honor 

the bargain struck in the plea agreement, we have recognized that 

the government has "a concurrent and equally solemn obligation to 

provide relevant information to the sentencing court." 

Almonte-Nuñez, 771 F.3d at 86, 90; see also 18 U.S.C. § 3661 ("No 

limitation shall be placed on the information concerning the 

background, character, and conduct of a person convicted of an 

offense which a court of the United States may receive and consider 

for the purpose of imposing an appropriate sentence."); U.S.S.G. 

§ 1B1.4 (same). At times, this obligation to the court may come 

into "tension" with "the fact that 'certain factual omissions, 

6 We note that in Cruz-Agosto -- a decision issued just four 

days after Cortés-López -- we stated that "we have never imposed 

an obligation on the government to further explain its 

recommendation for a downwardly variant sentence." Cruz-Agosto, 

102 F.4th at 26 (emphasis added). However, Cruz-Agosto does not 

cite Cortés-López, and we assume that the later panel was simply 

unaware of that just-issued opinion requiring explanation in 

certain extreme circumstances. In any event, the jointly 

recommended downward variance in Cruz-Agosto -- which was only 

twenty months shorter than, or about 35% less than, the lower end 

of the Guidelines range -- was far less significant than the 

"dramatic" variance requested in Cortés-López. 
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helpful to the defendant, may be an implicit part of the bargain 

in a plea agreement.'" United States v. Davis, 923 F.3d 228, 237 

(1st Cir. 2019) (internal quotation marks and alteration omitted) 

(quoting Miranda-Martinez, 790 F.3d at 274).

In assessing the government's conduct, we must balance 

these competing interests, recognizing that the government will 

rarely breach a plea agreement merely by providing relevant 

information to the court that happens to be unfavorable to a 

defendant, so long as it does not cross the line into express or 

implicit advocacy for a greater-than-agreed-upon sentence

recommendation. See Almonte-Nuñez, 771 F.3d at 90 (finding no 

breach where the government agreed that there was a factual basis 

for an offense-level adjustment not contemplated by the plea 

agreement but continued to advocate for the agreed-upon sentence). 

It is particularly significant in the breach analysis when the 

information provided by the government came at the court's 

prompting. See, e.g., id.; United States v. Saxena, 229 F.3d 1, 

7 (1st Cir. 2000) ("We consider it important that the AUSA's 

remarks came at the court's urging and in direct response to 

defense counsel's attempt to put an innocent gloss on the post-plea 

activities.").

2. Discussion 

Acevedo argues that, during the sentencing hearing, the 

government both breached the plea agreement's express terms and 
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implicitly repudiated it. We need not treat these theories of 

breach as wholly separate. Because we assess the totality of the 

circumstances, we must consider both the terms of the agreement 

and the government's conduct, viewed holistically, to assess 

whether, overall, the government acted consistently with Acevedo's 

reasonable expectations. See Canada, 960 F.2d at 268-70

(concluding that the government had breached the plea agreement 

based on explicit and implicit factors). 

Our focus on Acevedo's reasonable expectations follows 

from the contract principles discussed above. As noted, plea

agreements, like all contracts, "are accompanied by an implied 

obligation of good faith and fair dealing," Frazier, 340 F.3d at 

11 (quoting Ahn, 231 F.3d at 35-36), which obligates the government 

to refrain from "acts or omissions that . . . are inconsistent 

with the contract's purpose and deprive the other party of the 

contemplated value," Metcalf Const. Co., 742 F.3d at 991; see also

Restatement (Second) of Contracts § 205 (Am. L. Inst. 1981) ("Good 

faith performance or enforcement of a contract emphasizes 

faithfulness to an agreed common purpose and consistency with the 

justified expectations of the other party"); 23 Williston on 

Contracts § 63:22 (4th ed. 2024) ("[W]hen one party performs the 

contract in a manner that is unfaithful to the purpose of the 

contract and the justified expectations of the other party are 

thus denied, there is a breach of the covenant of good faith and 
- 21 -

fair dealing."). Accordingly, in construing plea agreements, 

"[t]he touchstone is the 'defendant's reasonable understanding' of 

the agreement." United States v. Gardner, 5 F.4th 110, 114 (1st 

Cir. 2021) (quoting United States v. Conway, 81 F.3d 15, 17 (1st 

Cir. 1996)); cf. United States v. Gall, 829 F.3d 64, 72 n.6 (1st 

Cir. 2016) (citing cases for the general proposition that a court's 

construction of a plea agreement should align with the reasonable 

expectations of the parties). The government's conduct must be 

"reasonably consistent," Canada, 960 F.2d at 269, with the benefit 

of the bargain that induced the defendant to forgo important 

constitutional trial rights and instead admit guilt. 

The agreement states that "[a]fter due consideration of 

the relevant factors enumerated in 18 U.S.C. § 3553(a), in exchange 

for the defendant pleading guilty to Count Two of the Indictment, 

the parties will request the mandatory minimum sentence of one 

hundred twenty (120) months." Acevedo argues that the phrase 

"[a]fter due consideration of the relevant factors" obligated the 

government, during the sentencing hearing, to contextualize its 

recommendation within the sentencing factors. Another possible 

interpretation, however, is that this reference merely reflects 

the parties' understanding that the sentence aligns with the 

sentencing factors. "[W]hen the words of a plea agreement are 

unclear, extrinsic evidence may be considered to clarify the 

parties' understanding." Gall, 829 F.3d at 72. Neither party, 
- 22 -

however, points to extrinsic evidence clarifying the agreement's 

meaning, and our independent review of the record is likewise

unavailing. We thus fall back on the general contract principle 

that, as the drafter of the agreement, "[a]mbiguities in plea 

agreements are construed against the government." United States

v. Newbert, 504 F.3d 180, 185 & n.3 (1st Cir. 2007); see also

United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988) 

("Given the relative interests implicated by a plea bargain, we 

find that the costs of an unclear agreement must fall upon the 

government."). Therefore, the phrase, even if ambiguous, informs 

our understanding of what Acevedo reasonably expected to get out 

of pleading guilty: a sentencing hearing in which the court would 

understand why, under the relevant sentencing factors, the 

government believed a 120-month sentence was appropriate. 

Hence, to resolve Acevedo's claim that the government 

implicitly repudiated the agreement with its terse presentation, 

we must determine if the government acted consistently with 

Acevedo's expectation. Whereas many of our cases finding an 

implicit breach involved plainly discernable cues to the 

sentencing judge that the government disapproved of the 

agreed-upon sentence, see, e.g., Mojica-Ramos, 103 F.4th at 850; 

Gonczy, 357 F.3d at 54; Canada, 960 F.2d at 268-69, here any such

wink or nod by the government was far more subtle. That is, the 

government never affirmatively sent such a message of disapproval. 
- 23 -

Indeed, the prosecutor uttered only 16 words of substance: "On 

behalf of the Government, we would be recommending 120 months 

pursuant to the plea agreement." 

The government defends that tightlipped approach 

entirely on the general principle that, absent an express statement 

in the plea agreement, it has "no affirmative obligation of either 

advocacy or explication," Lessard, 35 F.4th at 44, even when 

recommending a substantial downward variance, see Cruz-Agosto, 102 

F.4th at 26 (finding no breach where the parties agreed to 

recommend a thirty-seven-month sentence whereas the Guidelines 

sentencing range was fifty-seven to seventy-one months). The 

government's sole reliance on that principle is difficult to 

square, however, with our recent decision in Cortés-López. See

101 F.4th at 132-33 (finding breach where government's only 

affirmative acknowledgment of the agreed-upon sentence was its 

statement that it would "stand by" the agreement, spoken after its 

unprompted assent to the drastically higher loss amount in the PSR 

than contemplated by the plea agreement).

As we discuss below, there are several meaningful 

factual differences between that case and the present 

circumstance. Nonetheless, the core principle articulated in

Cortés-López -- that in certain circumstances the government owes 

at least a "minimal explanation," id. at 132, when it agrees to 

jointly recommend a dramatic downward variance -- leads us to 
- 24 -

conclude that here "the government's failure to provide at least 

some explanation for its decision to lend its prestigious 

imprimatur to such a dramatic downward variation likely caused the 

district court to view the government's 'stand by' statement as 

just hollow words, undermining any notion that the government 

viewed the plea agreement as fair and appropriate," id. at 133.7

Most significantly, the jointly recommended sentence 

here was the statutory minimum of 120 months' imprisonment, whereas 

the applicable Guidelines sentencing range called for 292-365 

months. In other words, the government agreed to recommend a 

sentence that was, in raw terms, fourteen years less than the

minimum sentence called for by the Guidelines, and, in relative 

terms, less than half as long. 

Additionally, similar to Cortés-López, see 101 F.4th at 

132-33, we find the government's reserved approach especially

remarkable considering the stark differences between the plea 

agreement and the PSR.8 As we have noted, the PSR described in 

7 The fact that we decided Cortés-López after Acevedo's 

sentencing proceeding does not affect our analysis. See United 

States v. Delgado-Sánchez, 849 F.3d 1, 13 (1st Cir. 2017) ("[P]lain 

error review requires us to evaluate whether the law is clear now, 

at the time we are conducting appellate review, regardless of 

whether the law was unclear at the time of sentencing."). 

8 In Cortés-López, which involved financial fraud, the PSR 

calculated a much greater loss amount than the one calculated by 

the parties, which resulted in a far greater total offense level 

and Guidelines sentencing range that further underscored the 

lenient sentence recommended pursuant to the plea agreement. 
- 25 -

painful detail a long-running, sexually exploitative 

"relationship" beginning when S.Q.R. was just fifteen years old, 

characterized by abusive language and threats of humiliation. 

Moreover, the PSR divulged the production of a sexually explicit 

video, the exchange of approximately forty sexually explicit 

photos of S.Q.R., the unwanted distribution of one such photo to 

her coworker, and the purported destruction of S.Q.R.'s mother's 

car. By contrast, Acevedo understood that he was pleading guilty 

to one count of coercion and enticement of a minor, based on the 

minimal, unadorned admission of soliciting an explicit video on 

one occasion and a vague admission of threatening to distribute. 

That sparse narrative informed the parties' agreement to jointly 

recommend the most lenient possible sentence for that offense, 

while dismissing the additional charges of production and receipt 

of child pornography.9 Ultimately, the revelations in the PSR, 

which supported several sentencing enhancements absent from the 

plea agreement, led the probation office to calculate a total 

offense level and Guidelines sentencing range that dwarfed the one 

calculated by the parties and painted a damning portrait of 

Acevedo. 

9 We note that the statutory minimum sentence for production 

of child pornography would have been fifteen years' imprisonment 

rather than the ten-year statutory minimum for Acevedo's crime of 

conviction. See 18 U.S.C. § 2251. 
- 26 -

We can see no reason why the government would not have 

been aware of this information when it entered into the plea 

agreement. Other than some details introduced by S.Q.R.'s victim 

impact statement, most of the PSR's narrative comes from the 

government's discovery, particularly S.Q.R.'s statements to 

investigators.10 The government thus surely understood that, by 

agreeing to dismiss the child pornography charges and recommending

the most lenient possible sentence despite the severity of 

Acevedo's wrongful conduct, it was making Acevedo an unusually 

generous offer that would induce the reasonable expectation, 

informed by the advice of counsel, that his acceptance of 

responsibility would yield a sentencing proceeding that gave him 

some hope of leniency. Yet, despite the stark narrative 

differences between the plea agreement and the PSR, the government 

made no effort to explain why it thought a 120-month sentence was 

still warranted under the sentencing factors. Instead, "the 

district court was left to speculate about what rationale might 

reasonably support such a seemingly off-kilter, well-below 

guidelines recommendation." Cortés-López, 101 F.4th at 133.

10 Acevedo argues that merely by providing this information 

to the probation office, the government breached the plea 

agreement. Given the government's "solemn obligation to provide 

relevant information to the sentencing court," Almonte-Nuñez, 771 

F.3d at 86, 90, we disagree. 
- 27 -

In short, Acevedo did not get what he bargained for: a 

sentencing hearing in which an inevitably skeptical court could at 

least comprehend why, in the government's view, the sentence was 

proper. Of course, such a proceeding would not have guaranteed 

Acevedo the lenient sentence he hoped to secure when he agreed to 

plead guilty, but it would have at least delivered the promised 

benefit of a realistic chance at such an outcome. The government's 

failure to offer a "minimal explanation," id. at 132, for 

recommending what appeared to be a startingly lenient sentence

deprived Acevedo of the added "prestige" necessary for the 

government's recommendation to have any "potential to influence 

the district court," Velez Carrero, 77 F.3d at 11-12 (emphasis 

omitted). In the circumstances of this case, the government's

perfunctory performance was thus not "reasonably consistent with 

making [the agreed-upon] recommendation." Canada, 960 F.2d at

269. Rather, the "net effect of the government's behavior 

undermine[d] the benefit of the bargain upon which [Acevedo] has 

relied." Frazier, 340 F.3d at 10 (internal quotation marks 

omitted). 

3. Plain Error Review

Though we conclude that the government's failure to 

explain its sentence recommendation in this case was "tantamount 

to a repudiation of the agreement," Cortés-López, 101 F.4th at 

133, we must still consider whether Acevedo has satisfied the 
- 28 -

remaining prongs of our plain-error test. Our analysis ends, 

however, with the second requirement: that the government's breach 

had to be clear and obvious in light of existing law. See

Cheveres-Morales, 83 F.4th at 43. To rise to that level, the

"error must, at the very least, contradict existing law." United 

States v. Gonzalez, 981 F.3d 11, 22 (1st Cir. 2020). Accordingly, 

"ambiguous case law does not give rise to the clear or obvious 

error necessary to comport with the plain-error construct," id., 

required to vacate Acevedo's sentence.

Notwithstanding our recognition that Cortés-López helps 

explain why the government's conduct was improper, we perceive 

enough differences between that case and the present case that we 

cannot conclude that the "error [was] 'indisputable' in light of 

controlling law." Gonzalez, 981 F.3d at 22 (quoting United States

v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014)). For one thing, in 

Cortés-López, we emphasized that the sentence recommendation 

warranting a minimal explanation from the government was not only 

much shorter than the Guidelines sentencing range but also took a 

different form -- probation rather than imprisonment. 101 F.4th 

at 133. Here, the recommended sentence has a much greater 

disparity in length, but had no difference "in kind." Id. 

Additionally, in Cortés-López, the prosecutor made an unprompted 

statement agreeing with aspects of the PSR that differed from the 

plea agreement and supported a higher sentence. Id. at 132-33. 
- 29 -

While we did not rest our analysis in Cortés-López on that fact 

alone, the presence of such a statement undermining the plea 

agreement is a significant factual difference from the present

case.

Indeed, as we have noted, other cases identifying an 

implicit repudiation of the plea deal have involved similar 

affirmative conduct by the government signaling its 

dissatisfaction, as opposed to the government's omission here. 

See, e.g., Mojica-Ramos, 103 F.4th at 850; Gonczy, 357 F.3d at 54; 

Canada, 960 F.2d at 268-69. Considering this pattern in our past 

cases, the general principle that the government has "no 

affirmative obligation of either advocacy or explication,"

Lessard, 35 F.4th at 44, and the various factors distinguishing 

Acevedo's circumstances from those present in Cortés-López, we

cannot say that the government's omission of an explanation here 

was a clear or obvious breach so as to satisfy the high bar set by 

this prong of plain error review. We therefore decline to vacate 

Acevedo's sentence, notwithstanding the government's breach.

B. Procedural Reasonableness

Acevedo asserts that his sentence was not supported by 

a preponderance of the evidence, as it must be, see United States

v. Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017), because the 

court's factfinding depended upon statements in the PSR that are, 

in Acevedo's telling, unreliable. Because Acevedo preserved this 
- 30 -

objection, we review the court's factfinding for clear error within 

the abuse-of-discretion framework that accompanies claims of 

procedural error. See United States v. Mejia, 55 F.4th 1, 9 (1st 

Cir. 2022). Under this deferential standard, "[w]e must uphold 

the district court's ruling unless 'we are left with the definite 

and firm conviction that a mistake has been committed.'" Sanchez

v. Roden, 808 F.3d 85, 90 (1st Cir. 2015) (quoting United States

v. Mensah, 737 F.3d 789, 796–97 (1st Cir. 2013)).

The gravamen of Acevedo's complaint is that the district 

court relied largely on unsworn, uncorroborated statements by 

S.Q.R. contained in the PSR to calculate the Guidelines sentencing 

range, as well as to form its qualitative view of Acevedo's 

conduct. Acevedo accurately describes the court's reasoning: 

S.Q.R.'s account in the PSR led the court to calculate a total 

offense level of 38, including enhancements of seven levels for 

engaging in a pattern of sexual misconduct with a minor and 

distributing sexually explicit material of a minor. Likewise, the 

PSR's lurid account of a long-running exchange of sexually explicit 

material and Acevedo's manipulative and threatening behavior 

clearly influenced the court's sentencing rationale. S.Q.R. was 

the source of nearly all these allegations, most of which were not 

corroborated by any direct evidence.11 Our task, therefore, is to 

11 As noted, the fact that Acevedo received forty explicit 

photos was corroborated by the FBI investigation. The government's 
- 31 -

determine whether the sentencing court's heavy reliance on 

S.Q.R.'s statements to support these two enhancements and to 

otherwise guide its sentencing rationale was procedural error. 

"[A] district court 'must take pains to base sentencing 

judgments upon reliable and accurate information.'" United States

v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir. 2021) (quoting

United States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993)).

According to Acevedo, S.Q.R.'s statements were not reliable 

because they were unsworn, lacked corroboration, had some internal 

inconsistency, and included "multiple-level hearsay."12 This 

challenge to the reliability of information in the PSR is an uphill 

battle, as we generally presume that "a PSR bears sufficient 

indicia of reliability to permit the district court to rely on it 

at sentencing." United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 

2003) (quoting United States v. Taylor, 277 F.3d 721, 724 (5th 

Cir. 2001)). Acevedo offered the district court no "countervailing 

evidence or proffers" to challenge the PSR's reliability, as he 

must to generate a "genuine and material dispute" during 

appellate brief also states that the allegation that Acevedo sent 

an explicit photo to S.Q.R.'s coworker was corroborated by that 

coworker. We do not rely on this out-of-record representation. 

12 "[N]either the Federal Rules of Evidence nor the Sixth 

Amendment's confrontation clause applies" during sentencing 

hearings, and thus a sentencing court may rely on hearsay evidence. 

United States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018). 

We understand Acevedo's claim that the statements are hearsay to 

simply be another reason why they are unreliable. 
- 32 -

sentencing. Id. Rather, he merely asserted that S.Q.R.'s 

statements were "unverified" and "unrelated to the crime of 

conviction." When faced with "objections to the PSR [that] are 

merely rhetorical and unsupported by countervailing proof, the 

district court is entitled to rely on the facts in the PSR." Id.

Acevedo's argument for procedural error thus closely 

resembles the one we rejected in United States v. Santiago-Colon, 

918 F.3d 223, 226 (1st Cir. 2019). In that case, the defendant 

challenged the reliability of uncorroborated, uncharged statements 

by a sexual abuse survivor whose statements were included in the 

PSR. We explained, just as here, that the defendant's claim failed 

because he offered no evidence that the statements were unreliable. 

Id. Acevedo argues that Santiago-Colon is distinguishable 

because, in that case, the challenged statements were consistent 

with the trial testimony of other survivors. But we did not uphold 

the sentencing court's factfinding on that basis -- we were 

satisfied that the PSR was presumptively reliable, and the 

defendant had failed to prove otherwise. Id. The same is true 

here. 

We note, moreover, that S.Q.R.'s statements are 

consistent with the (minimal) information admitted to by Acevedo 

in the plea agreement. See Cyr, 337 F.3d at 100 (noting that the 

reliability of detailed information in the PSR was supported by 

less detailed admissions in the plea agreement). In the plea, 
- 33 -

Acevedo accepted responsibility for soliciting explicit photos 

from S.Q.R. and threatening to distribute them. The plea also 

confirms that S.Q.R. took explicit photos of herself at the time

Acevedo requested them. These acknowledged facts align with 

S.Q.R.'s allegations, which are far more detailed but ultimately 

relate to Acevedo soliciting and receiving explicit images from 

S.Q.R. and then using the photos to coerce and intimidate her. 

Because the district court's reliance on S.Q.R.'s 

statements in the PSR was not clearly erroneous, we reject 

Acevedo's broad procedural challenge to the district court's 

factfinding, as well as his attack on the two specific enhancements 

premised on S.Q.R.'s statements.13

13 Acevedo also argues that the two-level enhancement for 

distribution was unwarranted because the PSR only describes the 

photo distributed to S.Q.R.'s coworker as a "naked picture," 

whereas the enhancement applies only to depictions of "sexually 

explicit conduct," as defined under 18 U.S.C. § 2256(2). See

U.S.S.G. § 2G2.1, cmt. 1; see also United States v. Amirault, 173 

F.3d 28, 33-35 (1st Cir. 1999) (holding that a photo depicting 

"mere nudity" does not meet the statutory definition of sexually 

explicit conduct (analyzing 18 U.S.C. § 2256(2))). This argument 

is meritless. Most of the photos described in the PSR included 

"lascivious exhibition of the anus, genitals, or pubic area." 18 

U.S.C. § 2256(2). Absent any offer of proof to the contrary, the 

district court's inference that the photo Acevedo distributed was 

also of this nature was not clearly erroneous. See Brown, 31 F.4th 

at 46 ("We will not find clear error in the court's application of 

the guidelines to the facts 'as long as the district court's 

decision is based on reasonable inferences drawn from adequately 

supported facts.'" (quoting United States v. Martin, 749 F.3d 87, 

92 (1st Cir. 2014))).
- 34 -

* * *

In sum, the court did not commit plain error by 

overlooking the government's breach of the plea agreement. Having 

also rejected Acevedo's claim of procedural error, we affirm 

Acevedo's 292-month prison sentence.

III.

We next consider the condition of supervised release 

restricting Acevedo's unsupervised contact with his children.14 As 

Acevedo raised this objection to the district court, we review his 

challenge for abuse of discretion, revisiting legal issues de novo, 

assessing the district court's factual findings for clear error, 

and viewing deferentially the court's "judgment calls." United 

States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (quoting Riva v. 

Ficco, 615 F.3d 35, 40 (1st Cir. 2010)). 

The sentencing court must set forth a "reasoned and 

case-specific explanation" for the conditions of supervised 

release. United States v. DaSilva, 844 F.3d 8, 11 (1st Cir. 2016)

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

Cir. 2009)). These conditions must "involve[] no greater 

deprivation of liberty than is reasonably necessary to achieve the 

goals of the sentence," and must be "reasonably related both to 

these goals and to the nature and circumstances of the offense and 

14 At the time of sentencing, Acevedo had four minor 

children: three daughters and a son.
- 35 -

the history and characteristics of the defendant." Id. (quoting 

Perazza-Mercado, 553 F.3d at 69). We require a "greater 

justification" for special conditions "that would impair a 

defendant's relationship with his child[ren]." United States v. 

Del Valle-Cruz, 785 F.3d 48, 62 (1st Cir. 2015). 

While the district court did not expressly explain the 

restriction on Acevedo's access to his children, the requirement 

that it explain its reasoning is satisfied "so long as the court's 

reasoning can be deduced from the record." United States v. Leach, 

89 F.4th 189, 201 (1st Cir. 2023). Here, the court solicited, and 

accepted, an explanation from the probation officer during the 

sentencing hearing. The probation officer explained that the 

nature of the offense made the restriction necessary "to protect 

the community and to protect minors." With regard to Acevedo's 

children, specifically, the officer explained that Acevedo would 

have chaperoned contact and that unsupervised visits could be 

possible, in consultation with mental health professionals and the 

children's mothers.

Acevedo argues that the restriction is not supported by 

the record, which shows that he is a good father and that his 

conduct did not involve a family member or occur inside the 

familial home. He also points out that during the period charged 

in the indictment S.Q.R. was sixteen, and, thus, though a minor 

for the purposes of 18 U.S.C. § 2422(b), she was of the age of 
- 36 -

consent in Puerto Rico, see 33 L.P.R. § 4770(a), and that he and 

S.Q.R. were, as he puts it, "romantically involved, their 

relationship bearing no resemblance to anything like a parental or 

familial association." Thus, he asserts, the restriction is not 

reasonably related to his offense and unduly intrudes upon his 

parental liberty interests.

The PSR, however, does not describe a "romantic"

entanglement. Rather, it describes an exploitative relationship 

between a teenager and an older man who used abusive language and 

threats of humiliation to solicit sexually explicit images from 

her and manipulate her behavior. Although Acevedo is correct that 

most of these events occurred after S.Q.R. was sixteen years old, 

their sexual relationship began when she was fifteen, and they met 

several years before that. We also find it significant that 

S.Q.R.'s parents put thousands of miles between Acevedo and their 

child and restricted her access to technology in their repeated 

efforts to block contact between them. Nonetheless, Acevedo 

subverted these extensive measures, contacting S.Q.R. through 

alternative channels and urging her to run away from home.

Acevedo's threatening behavior culminated in the distribution of

a sexually explicit photo of S.Q.R. and the purported torching of

her mother's car.

We have little difficulty distinguishing these 

circumstances from the facts of previous cases in which we have 
- 37 -

vacated restrictions on parental contact. In Del Valle-Cruz, for 

example, the defendant's instant offense -- failing to update his 

sex offender registration -- did not itself involve a sexual act, 

his underlying sexual offense was over a decade old, and the record 

contained no overtly violent or threatening conduct. See 785 F.3d 

at 59-64; see also United States v. Fey, 834 F.3d 1, 4 (1st Cir. 

2016) (similar); United States v. Cabrera-Rivera, 893 F.3d 14, 33 

(1st Cir. 2018) (vacating restriction where defendant lacked 

"violent inclinations" (quoting United States v. Pabon, 819 F.3d 

26, 33 (1st Cir. 2016)). Rather, the present case resembles other 

cases upholding similar restrictions in light of the defendant's 

recent history of violent or threatening behavior. See, e.g., 

Pabon, 819 F.3d 32-33 (upholding restriction where the defendant 

had a "copious criminal history" and his offense "involved a 

prolonged sexual relationship with a minor over whom he was in a 

position of apparent trust and authority"); United States v. 

Mercado, 777 F.3d 532, 538-39 (1st Cir. 2015) (upholding 

restriction in light of the defendant's "persistent criminal 

involvement"); cf. United States v. Benoit, 975 F.3d 20, 26-27 

(1st Cir. 2020) (upholding restriction on defendant having 

unsupervised contact with his children and distinguishing Del 

Valle-Cruz partially on the ground that the relevant conduct 

justifying the restriction was more recent). 
- 38 -

As in those cases, we also note that the "conditions 

imposed by the district court do not comprise an outright ban on 

the defendant's ability to associate" with his children. Mercado

777 F.3d at 539; see also Benoit, 975 F.3d at 27; Pabon, 819 F.3d 

at 33. Acevedo remains able to contact his children with 

supervision, and "[t]here is no basis for believing that the 

probation officer will unreasonably withhold permission for the 

defendant to see his own children." Mercado 777 F.3d at 539. Nor 

is he without redress if that occurs. Id.; see also 18 U.S.C. 

§ 3583(e)(2). Indeed, as noted during the sentencing hearing, the 

restriction can be modified, including by removing it entirely if 

his mental health treatment provider and the children's mothers 

deem it appropriate.

Because the record offers a reasonable explanation for 

restricting Acevedo's unsupervised contact with his children, see

DaSilva, 844 F.3d at 11, we will not disturb the district court's 

judgment call that such a condition is presently warranted. 

IV.

Finally, we consider the $5,000 special assessment and 

the restitution order of $3,275 to S.Q.R.'s mother for the mother's 

destroyed car. 

A. Special Assessment

We review the special assessment order for abuse of 

discretion. See United States v. Procell, 31 F.4th 32, 35 (1st 
- 39 -

Cir. 2022) (reviewing JVTA special assessment order for abuse of 

discretion). Ultimately, however, Acevedo's challenge raises a 

legal question, which, within our abuse of discretion framework, 

we review de novo. Hood, 920 F.3d at 92.

The JVTA requires the court to "assess an amount of 

$5,000 on any non-indigent person or entity convicted" of several 

offenses, including the offense of coercion and enticement of a 

minor to which Acevedo pleaded guilty. 18 U.S.C. § 3014(a). 

Acevedo argues that he adduced copious evidence that he is indigent 

within the meaning of section 3014(a). He also points out that 

the district court did not make any finding as to Acevedo's 

financial condition, but, instead, ordered the assessment and 

stated that it was open to revisiting the issue if Acevedo was 

unable to obtain future employment. The government defends the 

court's "provisional" decision by pointing out that a sentencing 

court is entitled to consider the defendant's future ability to 

pay.

The government's defense of the court's order as 

"provisional" is revealing. The statute speaks in mandatory 

terms: "[T]he court shall assess an amount of $5,000 on any 

non-indigent person or entity convicted of an offense" covered by 

the statute. 18 U.S.C. § 3014(a) (emphasis added). As other

circuits have concluded, this language means that "the district 

court has no choice but to impose the $5,000 assessment if it 
- 40 -

determines that the defendant is non-indigent. And the opposite 

is also true: the district court cannot impose the assessment on 

an indigent defendant." United States v. Shepherd, 922 F.3d 753, 

757 (6th Cir. 2019); see also United States v. Kibble, No. 20-

4106, 2021 WL 5296461, at *3 (4th Cir. Nov. 15, 2021) (stating 

that "a district court must make a finding [regarding indigency]

before imposing the $5,000 special assessment pursuant to the JVTA"

(emphasis added)). To be sure, the indigency finding need not be 

express, so long as the "record is sufficient to permit appellate 

review." United States v. Rowe, 268 F.3d 34, 39 (1st Cir. 2001); 

see also Shepherd, 922 F.3d at 760 (applying this principle in the 

JVTA context). But "[t]here is a difference between an implicit 

finding of non-indigency and no finding at all," Kibble, 2021 WL 

5296461, at *4, and, hence, the record must confirm that such an 

implicit finding occurred. Here, the government does not even 

attempt to suggest that the court made an implicit indigency 

finding, instead admitting that "[i]n effect, the district court 

deferred ruling on indigency."

The record supports that characterization. At the 

sentencing hearing, the court asked for the probation officer's 

evaluation of Acevedo's indigency, and the officer responded that 

"at this time we don't have enough information," recommending that 

the court instead "give [Acevedo] a chance to get employment"

before "mak[ing] an assessment." The court then overruled 
- 41 -

Acevedo's objection to the special assessment, stating that it 

would "reconsider" the fine "if Mr. Acevedo can later indicate 

that he will not be able to pay the $5,000 because of inability to 

have a job."15 Contrary to the government's suggestion, the court's 

reference to Acevedo's future employment did not assess his "future 

earning potential to render him non-indigent." Procell, 31 F.4th 

at 38. The district court did not make any finding of 

non-indigency premised on Acevedo's employment prospects, instead 

indicating that it would make a future indigency finding based on 

Acevedo's actual employment outcomes.

The court thus erroneously imposed the special 

assessment without any finding regarding Acevedo's indigency, and, 

consequently, we vacate the $5,000 assessment. Acevedo further 

argues that the record establishes his indigency: he has limited 

income, receives SNAP benefits, lacks assets, and has burdensome 

child support obligations. That determination properly lies with 

the district court in the first instance, however, and we therefore 

remand the issue to the district court. See United States v. 

Irizarry-Colón, 848 F.3d 61, 70 (1st Cir. 2017).

15 Acevedo notes that, as a consequence of the court's decision 

to assess the fine but "defer" an indigency finding, Acevedo is 

presently obligated -- but purportedly unable -- to pay the fine, 

which means interest may be unnecessarily accruing.
- 42 -

B. Restitution

Finally, Acevedo challenges the restitution order of 

$3,275 for the destruction of S.Q.R.'s mother's car. We disagree 

with the government that the restitution order should be reviewable 

only for plain error. The district court granted the government's 

restitution request -- made in a post-sentencing memo -- before 

Acevedo had an opportunity to file a timely opposition. Federal 

Rule of Criminal Procedure 51(b) provides that "[i]f a party does 

not have an opportunity to object to a ruling or order, the absence 

of an objection does not later prejudice that party." The 

government's contention that Acevedo forfeited his objection 

because he had prior notice that some restitution might be awarded 

in unavailing. He had no notice of the issue on appeal -- whether

he owed S.Q.R.'s mother restitution for her car -- until the 

government's post-sentencing memo. We thus review the restitution 

order for abuse of discretion, see, e.g., United States v. 

Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018), meaning that, once 

again, our review is functionally de novo since Acevedo's appeal 

concerns a legal question, see Hood, 920 F.3d at 92.

Acevedo argues that this restitution order is improper 

because the Mandatory Victims Restitution Act ("MVRA") authorizes 

restitution to be paid to the "victim" of a crime,16 see 18 U.S.C. 

16 The MVRA also authorizes restitution to non-victims "if 

agreed to by the parties in a plea agreement." 18 U.S.C. 
- 43 -

§ 3663A(a)(1), (b)(1), yet the district court identified only 

S.Q.R. as a victim, with her mother being S.Q.R.'s 

"representative." The government responds that S.Q.R.'s mother 

was a victim within the statutory definition and the district court 

understood her as such, and, in any event, she may receive 

restitution as S.Q.R.'s representative.

The MVRA defines a victim as "a person directly and 

proximately harmed as a result of the commission of an offense for 

which restitution may be ordered . . . ." Id. § 3663A(a)(2). On 

the face of this definition, we can understand why the government 

regards S.Q.R.'s mother as a victim.17 Whether, in our view, the 

facts show that S.Q.R.'s mother satisfies the statutory definition 

of "victim" is not the relevant question on appeal, however. 

§ 3663A(a)(3). Here, the plea agreement does not contemplate 

restitution to S.Q.R.'s mother. 

17 The MRVA, as relevant here, "appl[ies] in all sentencing 

proceedings for convictions of, or plea agreements relating to 

charges for, any offense-- (A) that is-- (i) a crime of violence, 

as defined in [18 U.S.C. § 16] [or] (ii) an offense against 

property . . . ." 18 U.S.C. § 3663A(c)(1). Acevedo was not 

charged with an offense against property, and we have not opined 

on whether any of Acevedo's charged offenses qualify as a "crime 

of violence." But see United States v. Champion, 248 F.3d 502, 

506 (6th Cir. 2001) (holding that each of the offenses relevant to 

this appeal is a "crime of violence"); see also United States v. 

Williams, 529 F.3d 1, 5 (1st Cir. 2008) ("[I]llicit sexual activity 

between an adult and a minor . . . poses a significant risk that 

force will be used in the consummation of the crime."). Nor is it 

clear that the burning of the car is sufficiently related to the 

charged offenses to qualify. Acevedo, however, has not raised 

these issues, and we therefore consider only whether S.Q.R.'s 

mother is statutorily eligible to receive restitution. 
- 44 -

Because such a factfinding properly lies with the district court 

in the first instance, see Irizarry-Colón, 848 F.3d at 70, the 

question is whether the district court found S.Q.R.'s mother to be 

a victim and whether, if not, it properly awarded her restitution 

anyway.

During the sentencing hearing, the district court 

expressly identified only one victim: S.Q.R., describing S.Q.R.'s 

mother not as a victim, but as S.Q.R.'s representative. There is 

nothing else in the record from which we can infer that the 

district court nonetheless made an implicit finding that S.Q.R.'s 

mother is herself a victim when entering its restitution order. 

The government points out that the PSR identified both S.Q.R. and 

her mother as victims, but, of course, a district court is not 

required to agree with the PSR, and the district court notably 

departed from the language of the PSR in describing only S.Q.R. as 

Acevedo's victim. Indeed, the court referred in the singular to 

"the victim" throughout the sentencing hearing, always in 

reference to S.Q.R. In the government's post-sentencing 

memorandum, moreover, it likewise referenced one "victim," meaning 

S.Q.R., and at one time described the damaged property as "her 

mother's car," while at other times referring to the car as 

S.Q.R.'s property.18 In the district court's subsequent 

18 To the extent the district court premised its restitution 

order on the understanding that the car was S.Q.R.'s property, 
- 45 -

unexplained order granting restitution, it again ordered Acevedo 

to pay restitution to "the victim." In short, on this record, we 

cannot conclude that the district court made a finding, express or 

implicit, that S.Q.R.'s mother is a victim within the statutory 

definition.

The government argues, in the alternative, that S.Q.R.'s 

mother was entitled to receive restitution for her damaged property 

as S.Q.R.'s representative. The MVRA provides that "[i]n the case 

of a victim who is under 18 years of age . . . the legal guardian 

of the victim . . . may assume the victim's rights under this 

section." 18 U.S.C. § 3663A(a)(2). We have not previously 

considered whether this text entitles a victim's representative to 

restitution for the representative's own losses, but several other 

circuit courts have rejected that interpretation. See United 

States v. Casados, 26 F.4th 845, 853 (10th Cir. 2022) ("[The MVRA] 

limits restitution to losses incurred by the victim, and the 

victim's representative assumes the right to receive restitution 

for exactly those losses incurred by the victim, and not [the

representative's] own losses."); United States v. Wilcox, 487 F.3d 

1163, 1177 (8th Cir. 2007) ("The section does not allow the legal 

such a finding would be clearly erroneous, as the record makes 

clear that the car belonged to S.Q.R.'s mother, not S.Q.R.
- 46 -

guardian to substitute [the guardian's] own losses for those of 

the victim.").19

We agree. The MRVA authorizes a victim's representative 

only to "assume the victim's rights under this section." 18 U.S.C. 

§ 3663A(a)(2) (emphasis added). In other words, the statute 

authorizes a representative to collect the restitution owed to the 

victim for losses the victim suffered. It does not separately 

authorize restitution for the losses of the victim's 

representatives. The rest of section 3663A confirms our reading. 

The statute authorizes "restitution to the victim." Id.

§ 3663A(a)(1) (emphasis added). As relevant to this case, the 

statute requires restitution for "damage to or loss or destruction 

of property of a victim," id. § 3663A(a)(2) (emphasis added), and 

to "reimburse the victim for lost income and necessary child care, 

transportation, and other expenses incurred during participation 

in the investigation or prosecution of the offense or attendance 

at proceedings related to the offense," id. § 3663A(b)(4) 

(emphasis added). The statute also specifies that it is only 

applicable where "an identifiable victim or victims has suffered 

19 By contrast, in United States v. Pizzichiello, the Ninth 

Circuit held that a deceased victim's family could recover 

restitution for their own travel expenses, reasoning that if the 

victim had survived, he would have incurred travel expenses of his 

own. See 272 F.3d 1232, 1241 (9th Cir. 2001). As the Tenth 

Circuit notes in Casados, see 26 F.4th at 852, Pizzichiello does 

not engage with the statutory text whatsoever and is thus not a 

persuasive authority on the statute's plain meaning. 
- 47 -

a physical injury or pecuniary loss." Id. § 3663A(c)(1)(B) 

(emphasis added). And it only contemplates recovery for 

non-victims when specifically provided by a plea agreement. Id.

§ 3663A(a)(3).

Simply put, any right of recovery assigned to a victim's 

representative must relate to a loss suffered by that victim, as 

the statute describes the term. Since the district court did not 

make any finding that S.Q.R.'s mother, in addition to being

S.Q.R.'s representative, is also a victim of Acevedo's charged 

conduct in her own right, we reject the government's contention 

that she is nonetheless entitled to recover for her own losses 

solely on account of being S.Q.R.'s representative.

The restitution award was thus erroneous. Acevedo asks 

that we strike the award, without remand. We disagree that that 

is the proper remedy. As we read the record, the district court 

never made a finding, one way or the other, about whether S.Q.R.'s 

mother meets the statutory definition of a victim entitled to 

restitution. Since such factfinding is the domain of the 

sentencing court, we will vacate the restitution award and remand

the issue for further consideration. See Casados, 26 F.4th at 854 

(taking the same approach). 

* * *

In sum, we affirm Acevedo's 292-month sentence and the 

condition of supervised release restricting Acevedo from having 
- 48 -

unsupervised contact with his children. We vacate, however, the 

special assessment under the JVTA and the restitution order and 

remand those issues to the district court for proceedings 

consistent with this opinion.

So ordered.