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First Circuit Vacates Supervised Release Condition Effectively Prohibiting Contact with His Minor Children

by Matt Clarke

On June 20, 2018, the U.S. Court of Appeals for the First Circuit held that a condition of supervised release prohibiting contact with minors without pre-approval from a probation officer in a plea-bargained possession of child pornography case was clear error and a miscarriage of justice as it prevented contact with a minor son and daughter and was unsupported by the record. The condition was vacated, and the case remanded for the district court to reconsider the condition.

Edwin Cabrera-Rivera was charged with one count each of production and possession of child pornography. He pleaded guilty to the possession count in exchange for a recommendation of a 108-month sentence. The written joint recommendation contained a waiver of appeal and no mention of length or conditions of supervised release. The court sentenced him to 108-months imprisonment and 144 months of supervised release, imposing numerous conditions of supervised release, including one prohibiting him from residing with, accompanying, or socializing with any person younger than 18 years without pre-approval from his probation officer. Cabrera appealed.

The First Circuit held that, because the sentence Cabrera received was the sentenced he agreed to in the joint recommendation, he could not appeal the length of his sentence or supervised release or its conditions due to the waiver of appeal he signed. The only exception would be for a miscarriage of justice or clear error, which, with one exception, did not apply to this case.

The Court upheld five of the six challenged supervised release conditions. One condition prohibited Cabrera from residing with, accompanying, or socializing with minor children without the pre-approval of his probation officer. This would restrict his constitutional right to raise his children. Because the district court gave no explanation for imposing such a restriction in the record, it “meets the stringent criteria under the miscarriage-of-justice exception,” wrote the Court.

The Court noted that, as Cabrera’s offense was based on his having convinced an intellectually-disabled 16-year-old girl to send him at least 58 sexually explicit photos of herself, it is possible that the district court could have supported the supervised release restrictions with some factual findings on the record. In this case, there was no explanation as to why the conditions were imposed. Rather, the six challenged conditions appeared to have been adopted wholesale, along with fourteen other supervised release conditions, from the recommendations of the Probation Office in its Pre-Sentencing Report.

The Court dismissed Cabrera’s appeal of the length of his sentences and term of supervised release along with five of the six conditions of supervised release he challenged. However, it vacated the condition of supervised release prohibiting him from residing with, accompanying, or socializing with children under the age of 18 without prior approval from his probation officer.

Accordingly, the Court vacated that condition of his supervised release and remanded to the district court for reconsideration of the condition. See: United States v. Cabrera-Rivera, 893 F.3d 14 (1st Cir. 2018). 

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