As Amended April 24, 2015.
[Copyrighted Material Omitted]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. JoséA. Fusté, U.S. District Judge.
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.
Before Torruella, Thompson, and Barron, Circuit Judges.
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 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.
In Oklahoma in 1997, Carlos Manuel Del Valle-Cruz pled guilty to a sex offense against a child -- sexual battery. The charges arose from an incident that occurred while Del Valle-Cruz was working in a nursing center. He approached a fifteen-year-old 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 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 arrest, and in April 2012, Del Valle-Cruz was indicted federally for failing to register pursuant to 18 U.S.C. § 2250(a).
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 PPG testing; and (2) he was to have no contact with minors under the age of 18, would not be allowed to reside in the home with a child under the age of 18, and could not work or volunteer with minors. The conditions specified that Del Valle-Cruz was not to have any contact with minors " unless approved in advance by the U.S. Probation Officer."  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., 2013 OK 43, 305 P.3d 1004 (Okla. 2013).
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 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 ...