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United States v. Pabon

United States Court of Appeals, First Circuit

April 8, 2016

UNITED STATES OF AMERICA, Appellee,
v.
LUIS E. PABON, JR., Defendant-Appellant

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Mary M. Lisi, U.S. District Judge.

         Lisa Aidlin for appellant.

         Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

         Before Howard, Chief Judge, Selya and Thompson, Circuit Judges.

          OPINION

         HOWARD, Chief Judge.

         Luis Pabon appeals his sentence for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). The district court sentenced Pabon, inter alia, to five years of supervised release with special conditions. The conditions require Pabon to participate in a sex offender treatment program and submit to polygraph testing. They also restrict his association with minors. Pabon alleges that these conditions are unreasonable and violate 18 U.S.C. § 3583(d). On appeal, Pabon also raises several other constitutional and statutory challenges for the first time.

         In light of Pabon's substantial criminal history and the district court's ample explanation for the conditions imposed, we hold that the court did not exceed its sentencing discretion under 18 U.S.C. § 3583(d). Further, a number of Pabon's claims were not preserved and, moreover, have been waived on appeal because he has made no attempt to satisfy the four-part plain error burden. See, e.g., United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en banc). In any event, even if those claims are only forfeited, the district court's sentence, properly construed, does not amount to plain error. Thus we affirm the sentence as construed.

         I. Background

         In 2011, Pabon pled guilty to violating the registration requirements of SORNA. Pabon was required to register because he had been convicted in 2008 of second-degree child molestation for sexually molesting the fourteen-year-old daughter of his then-girlfriend. The district court sentenced Pabon to thirty months in prison and five years of supervised release[1] with special conditions, including:[2]

(1) Sex offender treatment condition: " participate in a sex offender specific treatment program as directed by the probation officer" ;
(2) Polygraph test condition: " participate in testing in the form of polygraphs or any other methodology approved by the Court in order to measure compliance with the conditions of treatment and supervised release" ;
(3) Contact condition: " have no contact with any child under the age of 18 without the presence of an adult who is aware of the defendant's criminal history and is approved, in advance, by the probation officer" ;
4) Residence condition: " live at a residence approved by the probation office, and not reside with anyone under the age of 18, unless approved, in advance, by the probation office" ;
(5) Loitering condition: " not loiter in areas where children congregate," including but not limited to " schools, daycare centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events" ; and
(6) Employment condition: " not be employed in any occupation, business, or profession or participate in any volunteer activity where there is access to children under the age of 18, unless authorized, in ...

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