          United States Court of Appeals
                     For the First Circuit


No. 16-2046

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          ROGER GARCIA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

        [Hon. William E. Smith, Chief U.S. District Judge]


                             Before

                      Howard, Chief Judge,
                Stahl and Lynch, Circuit Judges.


     John T. Ouderkirk, Jr. on brief for appellant.
     Donald C. Lockhart, Assistant United States Attorney, and
Stephen G. Dambruch, Acting United States Attorney, on brief for
appellee.


                       September 22, 2017
            HOWARD, Chief Judge.          Defendant-Appellant Roger Garcia

challenges the district court's imposition of supervised release

conditions, after the district court vacated his original sentence

under Johnson v. United States, 135 S. Ct. 2551 (2015).                       Those

release conditions require him to "participate in a sex offender

specific    evaluation,"    and    restrict       his      contact   with    minor

children.   Perceiving no abuse of discretion, we affirm.

                                        I.

            In   2010,   Garcia    pled      guilty   to    being    a   felon   in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

The   district   court   imposed    a     fifteen-year       mandatory      minimum

sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e).    More than five years later, in the wake of Johnson,

which invalidated the relevant portion of the ACCA, Garcia moved

to vacate his sentence.       The government agreed that this relief

was appropriate.

            The district court granted Garcia's motion, vacated his

prior sentence, and conducted a resentencing hearing.                    The court

sentenced Garcia to time served, which meant that he would be

promptly released, but went on to impose certain special conditions

of supervised release, related to Garcia's history of sex offenses.

These special conditions had not been included in the original

sentence.




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          Garcia's criminal history was indeed substantial.      In

1980, he was convicted of rape and sentenced to three years in

prison.   That same year, he was charged with aggravated sexual

assault on a child, but ultimately pled guilty to assault resulting

in bodily injury and received a one-year sentence. In 1985, Garcia

was convicted of sexual assault in the second degree on a teenage

victim and sentenced to prison for a year.         In 1991, he was

convicted of second degree child molestation based on two separate

incidents at elementary schools.       He received an incarcerative

sentence of eighteen months.    Garcia's criminal conduct during

this time period was not limited to sex offenses. He also compiled

convictions for vehicle theft, robbery by assault, entering a

building with felonious intent, and possession of marijuana.

          While Garcia had not been convicted of any sex offense

since 1991, his recent criminal history remained significant.    He

had been convicted of domestic assault and possession of marijuana

in 2000, as well as distribution of heroin in 2007.

          At the resentencing hearing, the district court provided

the following explanation for imposing the supervised release

conditions:

          [Y]ou have a history of hands-on sex offenses
          in your past. I recognize that these offenses
          are dated, but everything that I know and that
          the Probation Office is aware of in terms of
          the information about sex offenders is that
          there is a propensity to reoffend. This is
          all designed to . . . both protect the public


                               - 3 -
             and to keep you out of trouble. And I think
             that your chances of not offending are
             enhanced by having the evaluation I’m talking
             about in these conditions as well as not being
             put into a situation where you might offend.
             . . . I’ve . . . left a couple of standard
             conditions off of this list that are more
             onerous . . . because I don’t think that given
             the fact that your offenses are dated and that
             it’s not the offense of conviction here, I
             don’t think they're specifically called for.

                                      II.

             Despite characterizing defense counsel's objections to

the supervised release conditions as "somewhat disjointed," the

government "assumes arguendo . . . that review is for . . . abuse

of discretion."        Because Garcia's claim fails even under this

favorable    assumption,   we   will   apply   the    abuse   of   discretion

standard without deciding whether Garcia is entitled to that

standard of review.       See United States v. York, 357 F.3d 14, 19

(1st Cir. 2004).

             Our inquiry is guided by 18 U.S.C. § 3583(d) and U.S.S.G.

§5D1.3(b).      These provisions "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."          United States v. Pabon, 819

F.3d 26, 30 (1st Cir. 2016) (citation omitted). The relevant goals

"include the need to deter the defendant from further criminal


                                  - 4 -
conduct; the need to protect the public from further crimes by the

defendant; and the effective educational, vocational, medical, or

other correctional treatment of the defendant."               Id. (citation

omitted).     While "the district court is required to provide a

reasoned    and    case-specific   explanation   for   the    conditions    it

imposes," we may affirm even without an adequate explanation so

long as the court's reasoning may be inferred from the record.

Id. at 30-31 (citation omitted).

            On appeal, Garcia focuses narrowly on the conditions (1)

requiring him to "comply[] with a sex offender evaluation"; and

(2) restricting his contact with individuals under the age of

eighteen.     According to Garcia, the district court abused its

discretion in imposing these conditions because they were "not

applicable to [his] offense" of conviction, "not based on factual

evidence in the record," and largely predicated on "outdated"

convictions.

            The first of these contentions is easily dispatched.

Indeed, we have recently held that the imposition of conditions

nearly identical to those at issue here "may be reasonable even

where the present offense is not sexual in nature."              Id. at 31.

We went on to specify that conditions requiring sex offender

treatment    and    those   restricting    contact   with    minors   may   be

appropriate "despite the conviction not being a sex offense . . .

where the intervening time between a distant sex offense and the


                                   - 5 -
present conviction is marked by substantial criminal activity."

Id.   This is because "subsequent criminal conduct, whether or not

of a sexual nature, indicates an enhanced risk of recidivism."

Id.; see also United States v. DaSilva, 844 F.3d 8, 12 (1st Cir.

2016) (affirming similar conditions where defendant's last sex

offense was ten years earlier but he had three subsequent criminal

convictions "in the intervening years"); United States v. Mercado,

777 F.3d 532, 538 (1st Cir. 2015) (holding that ten-year-old sex

offense   was   rendered   "highly   relevant"   by   "the   defendant's

persistent criminal involvement over the intervening years").

           In the present case, despite expressly acknowledging

that Garcia's sex offense convictions were "dated," the district

court determined that the challenged conditions were necessary "to

both protect the public and to keep [Garcia] out of trouble."

While the court did not explicitly mention Garcia's significant

criminal history since his last sex offense, its reliance on this

factor is readily inferable from the record.          For one thing, we

have clearly and repeatedly reaffirmed the relevance of such

intervening convictions.    See DaSilva, 844 F.3d at 12; Pabon, 819

F.3d at 31; Mercado, 777 F.3d at 538. Moreover, the district court

was acutely aware of Garcia's criminal history, which had been

laid out meticulously in the Presentence Investigation Report

("PSR") and incorporated into the court's calculation of the

applicable guideline sentencing range.     Regardless of whether the


                                 - 6 -
district court's explanation could have been more fulsome, it bears

marked similarity to reasoning that we have previously found

sufficient.     See Mercado, 777 F.3d at 538 (finding it "nose-on-

the-face plain that the court's sentencing rationale was both

plausible and sufficient" based on district judge's explanation

"that the supervised release term was designed not only to help

the defendant in abating his criminal tendencies but also to

curtail future . . . violations").

             Garcia takes issue with the district court's statement

that "everything that I know and that the Probation Office is aware

of in terms of the information about sex offenders is that there

is a propensity to reoffend."      As an initial matter, the court's

statement on this point finds direct support in Supreme Court

precedent.    See, e.g., Smith v. Doe, 538 U.S. 84, 103 (2003) ("The

risk of recidivism posed by sex offenders is frightening and high."

(citation omitted)).     More importantly, immediately after making

this general statement, the court "went on to explain that [the

relevant] conditions were intended to mitigate the risk of this

particular defendant re-offending."        Mercado, 777 F.3d at 539.

This individualized consideration is evidenced by the court's

decision     that   certain   "standard"   conditions,   namely   those

involving polygraph testing and searches, were not "specifically

called for" in this case.




                                  - 7 -
            The primary authority relied on by Garcia, United States

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

distinguishable. The defendant in that case had a single eighteen-

year-old sex offense on his record.            See id. at 60.     For the prior

twelve years, he had "stayed out of trouble," and had no criminal

convictions other than failure to register as a sex offender.                   Id.

at 61.      Garcia's situation is markedly different.                     Far from

involving a single isolated incident, his criminal history evinces

a pattern of sexual misconduct towards minors.                  See Pabon, 819

F.3d at 32 (noting "repeated[]" nature of defendant's molestation

of minor).    Indeed, the PSR indicates that Garcia committed four

sex crimes, three of which involved young victims.               And Garcia has

not "stayed out of trouble" since the last of these convictions.

Instead, he has continued to engage in serious criminal misconduct,

culminating in a conviction for distributing heroin just three

years before his guilty plea in this case.

            Beyond    the   diverging         personal      histories      of   the

defendants, there are other considerations clearly distinguishing

the present case for Del Valle-Cruz. First, the conditions imposed

in the latter case "implicate[d] a fundamental constitutional

liberty interest" because the restrictions on the defendant's

contact with minors applied to his own son.                 Del Valle-Cruz, 785

F.3d at 56-57.       No such concern is implicated here, as Garcia's

children are all adults.         Moreover, the district court in Del


                                      - 8 -
Valle-Cruz imposed the conditions "without any justification or

explanation."       Id. at 56.     Here, by contrast, the district court

provided a revealing, if not expansive, window into its rationale.

In short, our ruling in Del Valle-Cruz was predicated on the unique

circumstances       of     that   case,   and   we   have   in   other        cases

distinguished this precedent for reasons similar to those outlined

above.   See DaSilva, 844 F.3d at 12-13; Pabon, 819 F.3d at 32.

           Finally, Garcia argues that there is no basis for his

special conditions because they were not imposed at his original

sentencing.     We disagree.       The Supreme Court made clear in Pepper

v. United States, 562 U.S. 476, 490-91 (2011), that district courts

have wide discretion in determining what factors to consider at

resentencing.    There is "[n]o limitation . . . on the information

concerning    the        background,   character,    and    conduct"     of    the

defendant that the district court may "receive and consider for

the purpose of imposing an appropriate sentence," id. (alteration

in original) (quoting 18 U.S.C. § 3661), particularly as it relates

to the need to "protect the public from further crimes of the

defendant," id. at 491 (quoting 18 U.S.C. § 3553(a)(2)).               In light

of Garcia's four prior sex offenses, and the fact that he was

released nine years earlier than he would have been under his

original sentence, it was certainly not an abuse of discretion for

the district court to conclude that the conditions were necessary

"to both protect the public and to keep [Garcia] out of trouble."


                                       - 9 -
          Because the supervised release conditions at issue are

well-grounded in Garcia's criminal history, as well as in the goals

of public protection and rehabilitation, the district court did

not abuse its discretion in imposing those conditions.

                               III.

          For the forgoing reasons, we AFFIRM Garcia's sentence.




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