          United States Court of Appeals
                      For the First Circuit

No. 12-1593

                          UNITED STATES,

                            Appellee,

                                v.

                    JOSÉ FELIPE MORALES-CRUZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
              Torruella and Selya, Circuit Judges.


     Héctor L. Ramos-Vega, Assistant Federal Public Defender, with
whom Héctor E. Guzmán, Jr., Federal Public Defender, and Patricia
A. Garrity, Assistant Federal Public Defender, were on brief, for
appellant.
     Dina Ávila-Jiménez, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.


                          April 5, 2013
          LYNCH,   Chief    Judge.     This    case    concerns   whether    a

district court abused its discretion when, in sentencing José

Felipe   Morales-Cruz,     it   imposed    a   particular    condition      of

supervised release: that "[t]he defendant shall participate in a

sex offender treatment[] and[/]or mental health treatment program

arranged by the probation officer."        Morales-Cruz, who had a 1994

conviction for criminal sexual assault, had failed to register as

required under the Sex Offender Registration and Notification Act

("SORNA"), 18 U.S.C. § 2250(a), when he moved to Puerto Rico in

2010, and he was indicted for that failure.           He had also failed to

register as required by law in 2009 when he lived in Florida.            And

he was convicted in 2002 for failure to register as a sex offender

when he lived in New Jersey.         In addition to Morales-Cruz's sex

offense and his two prior failures to register as a sex offender,

he had an extensive criminal record.            Further, he had a 2010

conviction for battery on the woman he lived with, a battery which

ended only when a security officer intervened.

          Morales-Cruz pled guilty to the federal charge of failure

to register in this case.       The court sentenced him to 48 months of

imprisonment, with a ten-year term of supervised release, subject

to a number of conditions.      These included non-standard conditions

tailored particularly to Morales-Cruz.         On the recommendation of

the Probation Department in the presentence investigation report

("PSR"), one condition imposed was that Morales-Cruz would have to


                                     -2-
participate   in   sex   offender    treatment   and/or   mental   health

treatment programs arranged by the probation office.        He appeals.

                                    I.

          Morales-Cruz does not appeal from his 48-month sentence

and agrees that he is in need of at least mental health treatment.

Nor does he take any issue with the delegation to the probation

officer to choose which type of treatment program he should receive

after his imprisonment.     His sole objection is to the possibility

that the probation officer may deem a sex offender treatment

program to be appropriate.     His primary argument is that his one

conviction for a sex offense was in 1994, some 16 years before his

present offense, that date is too long ago to justify the present

condition, and nothing else about his history of other offenses,

including his multiple failures to comply with SORNA, provided a

permissible justification for the condition.       As a result, he says

the condition is not reasonably related to the nature of the

offense or his history or characteristics.       We disagree.

                                    II.

          Our review of the conditions of supervised release is for

abuse of discretion.     United States v. Sebastian, 612 F.3d 47, 50

n.2 (1st Cir. 2010).     We take the undisputed facts from the record.

          Morales-Cruz's PSR included specific facts concerning the

defendant's characteristics.     At the time of sentencing, Morales-

Cruz was 58 years old, had a seventh-grade education, and was


                                    -3-
single and without dependents, though he had two adult daughters.

His employment was in jobs such as a butcher, a carpenter, an

assistant mechanic, and in maintenance.       He had never paid any

income tax.     Morales-Cruz admitted to using cocaine and heroin

daily since he was twenty years old and had last used these

substances the day before his arrest for the present offense.     He

had never participated in any drug treatment program.

            Morales-Cruz had ten prior convictions, several of which

we highlight.    At age 41, he pled guilty in New Jersey to attempted

criminal sexual assault on an adult female victim.      The crime is

described in the record:

     [O]n September 24, 1994 in Passaic NJ, the defendant
     assaulted [the victim], and tried to force her to have
     sexual intercourse.     The defendant fought with the
     victim, and she sustained a bruise on her right cheek and
     ear, a cut on her right hand, and both knees were
     bruised. The defendant left the apartment on foot. An
     attempt to arrest the defendant at his residence was
     made, to no avail.

Morales-Cruz was arrested four days later and sentenced to 4 years

of imprisonment.

            Morales-Cruz's record shows a pattern of failure to

comply with court orders and conditions of probation imposed for

his crimes.    At ages 44 and 45, Morales-Cruz was found in contempt

of court by two separate courts in New Jersey, arising out of state

offenses.     At age 48, in 2002, Morales-Cruz was convicted in New

Jersey of failure to register as a sex offender and was originally

put on 18 months of probation.     Within six months, his probation

                                 -4-
was revoked and he was sentenced to 15 months of imprisonment.                         At

age   50,    he   was    convicted     of    theft      and   placed    on   probation;

probation was then revoked and he was sentenced to three years of

imprisonment.        There were also drug crimes and a bench warrant

outstanding for him.

             Significantly, in 2010, after he had moved to Florida, he

did not contest the battery charges he faced for assaulting an

adult female victim.          The record states:

      On September 4, 2009 . . . [a] security guard for the
      apartment complex and [sic] while he was on patrol he
      could hear yelling and screaming in the area of apartment
      7-5. When he approached the apartment, the door was open
      and he noticed the defendant, Jose F. Morales, grabbing
      the victim . . . by the hair and tossing her around the
      room. Tavarez then saw Morales strike her in the head
      area with an open hand. Tavarez pulled his taser and
      ordered Morales to the ground. Morales complied and went
      to the ground. Tavarez radioed to his supervisor who
      called 911.    She further stated that the defendant
      arrived home intoxicated and began to argue with her.
      Morales then grabbed her hair and hit her in the head.
      [The victim] never gave Morales permission to hit her or
      pull her hair. Morales and [the victim] had been living
      together as a couple for a period of two years.

Morales-Cruz       was     sentenced   to     a    jail   term   and     320   days   of

probation.        He violated the terms of probation and had an active

Florida warrant at the time of his arrest in Puerto Rico.

             At the April 2012 sentencing hearing, the court correctly

stated      the    legal    requirements          for   imposing       sentencing     and

supervised release.          Morales-Cruz does not suggest otherwise, and

there is no claim of procedural error. The court assessed Morales-

Cruz's particular history, characteristics, and conduct, and stated

                                            -5-
it found the sentence and conditions appropriate because of a need

to protect the community and for deterrence, avoiding recidivism,

and to promote defendant's rehabilitation:

       The Court in making an assessment to impose a sentence
       takes into account other factors in 18 U.S.C. 3553(a) and
       understands that the nature and the circumstances of the
       offense of Defendant reflects that he has a lack of
       respect for other individuals. He has prior records that
       include criminal sexual assault, failure to register, and
       battery, among others. It reflects that as an individual
       he has a lack of control, and there is a need to protect
       the community from this individual.

The court then concluded:

       The Court must promote that Mr. Morales make insight of
       his wrongdoings and that he be afforded adequate -- and
       that adequate deterrence to the criminal -- his criminal
       conduct be afforded.      The Court must protect the
       community from individuals like Mr. Morales who openly
       disrespect the law by engaging in continuous criminal
       conduct and fail to abide by their supervision
       convictions, as failing to register as reflected in the
       presentence investigation report.

                                    III.

            In United States v. York, 357 F.3d 14 (1st Cir. 2004),

this   court   set   forth   the   legal   criteria   for   imposition   of

supervised release conditions, as well as for appellate review of

those conditions.     We stressed that "the facts of [a defendant's]

underlying offense and criminal history are pertinent to the

district court's choice of supervised release conditions":

       This is so by statute. Under 18 U.S.C. § 3583(d), the
       district court may impose any special condition of
       supervised release that it considers "appropriate,"
       provided that the condition satisfies certain specified
       criteria.   One such criterion is that the condition
       imposed be "reasonably related to the factors set forth

                                    -6-
      in section 3553(a)(1)."     Id. § 3583(d)(1).    Section
      3553(a)(1), in turn, requires the court to consider "the
      nature and circumstances of the offense and the history
      and characteristics of the defendant." See also U.S.S.G.
      § 5D1.3(b).

Id. at 17.

            In York, we noted that there were limitations on the

district court's power to fashion conditions of supervised release.

Id.   at   20.     The   critical   test   is    whether     the   condition   is

reasonably related to one or more of the goals of supervised

release. Id. The district court here specifically made that link.

It stated that Morales-Cruz had a lack of control, did not respect

others, needed to be deterred, and that the community needed

protecting from him.

            Morales-Cruz argues that failure to register is not a sex

offense, though he acknowledges that sex offender treatment may be

imposed in a case in which the underlying crime is not a sex

offense.     See id. at 19-20.         Contrary to Morales-Cruz's main

argument,    the   court   appropriately        considered    his   failure    to

register under SORNA in three jurisdictions, and "[t]he condition

that he attend sex-offender treatment is plainly related to his

criminal history," id. at 21, as well as to his present offense.

            SORNA requires sex offenders to "register, and keep the

registration current, in each jurisdiction where the offender

resides," 42 U.S.C. § 16913(a), by providing certain "information

to the appropriate official for inclusion in the sex offender


                                     -7-
registry," id. § 16914(a), and by appearing in person at prescribed

intervals to "allow the jurisdiction to take a current photograph,

and verify the information in each registry in which that offender

is required to be registered," id. § 16916.           Sex offenders must

keep registration current for periods that vary based on the

character of the underlying sex offense, and that may be reduced if

the offender maintains a clean record. Id. § 16915. Jurisdictions

are required to make available on the Internet all information

about each sex offender in the registry.       Id. § 16918.

           SORNA registration serves a purpose: to protect the

community from the risks posed by convicted sex offenders by

requiring registration and then by providing notification.         See 42

U.S.C. § 16901; United States v. Parks, 698 F.3d 1, 5 (1st Cir.

2012); see also Smith v. Doe, 538 U.S. 84, 99 (2003) (noting, with

respect to analogous requirements under Alaska law, that "[t]he

purpose and the principal effect of notification are to inform the

public for its own safety").         Registration requirements such as

those SORNA imposes are justified by the high recidivism rate for

offenders.      Id. at 105 ("[R]ecidivism is the statutory concern").

           Yet Morales-Cruz made a conscious choice to defeat those

purposes in three different jurisdictions.          And he did so in two

jurisdictions after he had already served time in prison for

failing to register in New Jersey, and knew there would be a

penalty   for    failure   to   register.   These   continuing   failures


                                     -8-
certainly permit a rational inference that Morales-Cruz presented

a recidivism risk and warranted deterrent punishment.             His conduct

undermined the efforts made by Congress in SORNA, and by the states

in their statutes, to combat the risks of recidivism.

            In McKune v. Lile, 536 U.S. 24, 33 (2002), the Supreme

Court noted that sexual offender treatment programs while in prison

serve legitimate penological objectives of rehabilitation.                   It

stressed the widespread agreement that such programs "can enable

[defendants] to manage their impulses and in this way reduce

recidivism."    Id.    Given Morales-Cruz's manifest lack of respect

for   the   SORNA   registration    requirements,     and   the     reasonable

inference that his refusal to comply with these requirements poses

a risk of recidivism, the district court's imposition of sex-

offender treatment was reasonably related to Morales-Cruz's present

offense as well as to his criminal history, which included a recent

assault on an adult female.        There was no abuse of discretion.

            To support his argument to the contrary, Morales-Cruz

cites six cases in which courts of appeals reversed conditions of

supervision.    All are distinguishable.         For example, none of the

cases   Morales-Cruz    cites   involve    a    defendant    with    a   recent

conviction for violence against a female victim.            In four of these

cases, the challenged conditions bore no relationship to the

offense of conviction and the defendant's recent criminal history

provided no basis for the conditions.          See United States v. Sharp,


                                     -9-
469 F. App'x 523 (9th Cir. 2012) (sex-offender conditions reversed

where defendant convicted of being a felon in possession of a

firearm,     no    suggestion     of     prior    sex    offender         registration

convictions, and district court failed to provide justification for

challenged conditions); United States v. Carter, 463 F.3d 526 (6th

Cir.   2006)      (sex-offender    conditions         reversed      where    defendant

convicted of being a felon in possession of a firearm, prior sex

offense was 17 years old, and no suggestion of prior sex offender

registration convictions); United States v. Scott, 270 F.3d 632

(8th Cir. 2001) (sex-offender conditions reversed where defendant

convicted of armed bank robbery and no suggestion of prior sex

offender registration convictions); United States v. Kent, 209 F.3d

1073 (8th Cir. 2000) (mental health conditions reversed where

defendant    convicted    of    mail     fraud).        In     a    fifth   case,   the

challenged sex-offender conditions bore no relationship to the

offense of conviction -- robbery of a post office -- the prior sex

offense was 17 years old, and there was no recent incident of

personal violence against women.            See United States v. Dougan, 684

F.3d 1030 (10th Cir. 2012).            The court stated that the defendant's

"failures to register as a sex offender make this a much closer

question."     Id. at 1037.     In the sixth case, the prior sex offense

was over twenty years old, and though the offense of conviction was

failing to register under SORNA, there was no suggestion that the

defendant    had    chronically    failed        to   comply       with   sex-offender


                                         -10-
registration requirements, as here.   See United States v. Rogers,

468 F. App'x 359, 362–64 (4th Cir. 2012) (per curiam).

                               IV.

          The judgment of the district court is affirmed.




                  -Dissenting Opinion Follows-




                              -11-
               TORRUELLA, Circuit Judge (Dissenting).                 Because I find

that the district court's imposition of the special condition of

supervised release -- participation in a sex offender treatment

program   with     accompanying        requirements       --   is    not   "reasonably

related to the factors set forth in section 3553(a)(1)," namely,

the "nature and circumstances of the offense and the history and

characteristics of the defendant," I am forced to dissent.                             18

U.S.C. §§ 3553(a)(1), 3583(d)(1); see also U.S.S.G. § 5D1.3(b).

Nor do I find that the challenged condition is "sufficiently

related to one or more of the permissible goals of supervisory

release," United States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000),

which include: (1) the need to deter the defendant from further

criminal conduct; (2) the need to protect the public from further

crimes    by    the    defendant;      and    (3)   the   effective        educational,

vocational,      medical,    or       other   correctional      treatment        of   the

defendant.            U.S.S.G.    §    5D1.3(b)(1);       see       also    18   U.S.C.

§ 3583(d)(1).

               First, the imposed special condition is not tailored to

the nature and circumstances of the offense or to Morales-Cruz's

criminal history and characteristics as required under U.S.S.G.

§ 5D1.3(b)(2).           The Government offered no evidence regarding

Morales-Cruz's "characteristics" that touch on either past sexual

behavior or misconduct, so my review will focus on whether the

special condition was reasonably related to his criminal history.


                                         -12-
While   Morales-Cruz      has   prior       convictions,      his    conviction     for

attempted    sexual    assault    on    an     adult   female       victim    occurred

approximately eighteen years before the instant SORNA conviction

and   is   too   remote   in    time    to    be   reasonably       related    to   the

imposition of the special condition here. There is ample precedent

from sister circuits rejecting the imposition of special conditions

where the sex offense conviction is temporally remote.                   See United

States v. Dougan, 684 F.3d 1030, 1036 (10th Cir. 2012) (imposition

of special condition of sex offender treatment vacated where most

recent sexual offense occurred sixteen years prior to the convicted

crime); United States v. Rogers, 468 F. App'x. 359, 363 (4th Cir.

2012)   (vacating     imposition       of    sex   offender    treatment      special

condition where criminal sexual assault conviction in over twenty

years old and there was no evidence before the district court that

such an act of violence characterized defendant's offense behaviors

in the years since he was released from incarceration); United

States v. Sharp, 469 F. App'x. 523, 525 (9th Cir. 2012) (special

sex offender treatment conditions vacated where defendant's sex

offense was more than a decade old at the time of sentencing,

"making it too remote to justify the conditions by itself"); United

States v. Carter, 463 F.3d 526, 531 (6th Cir. 2006) (seventeen-

year-old conviction for a sex offense "too remote in time to

justify the imposition of a sex-offender-treatment condition in

2005); United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001)


                                        -13-
(sex offender special condition reversed where fifteen-year-old

conviction for forcible rape and sodomy of defendant's nine-year-

old stepdaughter was too remote); United States v. Kent, 209 F.3d

1073, 1077 (8th Cir. 2000) (abuse against wife thirteen years prior

to mail fraud conviction too remote for imposition of special

condition of supervisory release of mental health treatment).

            While it may be permissible to impose special sex-

offender-related conditions where the convicted crime is not a sex

crime, I agree with the Tenth Circuit that "such cases . . . would

require a stronger nexus . . . between defendant's history and

characteristics and the sex-offender-related conditions before

. . . conclud[ing] that the latter were 'reasonably related' to the

former."    Dougan, 684 F.3d at 1036.   The nexus in this case is not

strong enough.   Morales-Cruz has committed no sexual offense-based

crimes since his 1994 conviction; he is not a recidivist sex

offender.   See United States v. York, 357 F.3d 14, 20 n.5 (1st Cir.

2004) (distinguishing the imposition of the sex offender special

condition to defendant York, "a recidivist sex offender," from the

reversal of such imposition in Scott, where "the only evidence of

sexual misconduct by the defendant was a single conviction over

fifteen years old [and t]he court concluded that that sex-offender

treatment   was unnecessary   because   the   defendant's sex-related

misconduct had ceased.").




                                -14-
            The     instant         and        2002    SORNA     failure-to-register

convictions, while troubling, are not in themselves sufficient to

establish a reasonable relation to the imposition of a special

condition of a sex offender treatment program.                     The SORNA offenses

on their face do not constitute sexual offenses nor are they

defined as such by the Guidelines for purposes of supervised

release. See U.S.S.G. § 5D1.2 cmt. n.1 (2003) ("Sex offense" means

"an offense, perpetrated against a minor," including, inter alia,

domestic    assault        by   a     habitual         offender,        kidnaping,       sex

trafficking, or conspiracy to commit those crimes).                        Further, the

record   provides     no    indication          that   Morales-Cruz's          failure    to

register coincided with or made more likely a return to his

commission of sexual offenses.                 "Even with a failure to register,

no appellate court has upheld the imposition of special sex-

offender conditions of release when based upon an underlying

offense that is seventeen years old," Dougan, 684 F.3d at 1037,

until the majority in this case.                 The reasoning of the majority --

that continuing failures to register permit "a rational inference

that   Morales-Cruz        presented       a     recidivism      risk    and    warranted

deterrent    punishment"        --        is    unwarranted       and     inappropriate

speculation lacking support in the record.                     It confuses a possible

rational inference of recidivism and deterrence concerns as to

criminal conduct generally with the entirely unfounded speculation

that Morales-Cruz presented recidivism risks and needed deterrence


                                           -15-
from committing further sexual offenses.        In fact, there is no

record support for Morales-Cruz's recidivism of sexual offenses.1

Further, the majority's reasoning is ripe for double-counting,

rationalizing a district court's discretion to impose a special

condition outside the Sentencing Guidelines to increase a sentence

due to a harm that has already been fully accounted for and based

on   temporally   distant   sex-offense   and     failure-to-register

convictions that the defendant has already served sentences for.

          Nor does the record show that the special condition was

reasonably necessary to achieve the goals of supervisory release.

Those goals, as summarily listed by the district court at its

sentencing hearing, include: (1) the need to protect the community;

(2) promoting defendant's "insight of his wrongdoings"; and (3)

deterrence.

          First, while Morales-Cruz's criminal record may justify

his sentence and all of the other special conditions imposed by the

district court, it is unclear why a sex offender treatment program

would fulfill the need to protect the community in this particular



     1
      The danger of recidivism should not be construed based on
general statistics of recidivism by sexual offenders, but rather by
an assessment of the conduct of a particular sexual offender,
particularly when a district court imposes a non-guideline
sentence. See, e.g., United States v. Miller, 601 F.3d 734, 739
(7th Cir. 2010) ("An above-guidelines sentence is more likely to be
reasonable if it is based on factors [that are] sufficiently
particularized to the individual circumstances of the case rather
than factors common to offenders with like crimes.") (internal
quotation marks and citations omitted).

                               -16-
case.       The    district   court   has    given   no   indication    of   how

defendant's temporally remote sex-offense conviction followed by a

consistent failure to commit a sexual offense would present a

danger to the community of defendant committing another sexual

offense, thus warranting the imposition of a sex offender treatment

program.     Rather, as stated supra, a contrary inference from the

record is more likely: there appears to be no relationship between

defendant's failure to register and the commission of sexual

offenses.     Further, in demonstrating defendant's danger to the

community,        the   district   court   listed    traits   associated     with

Morales-Cruz's criminal conduct generally, but those traits only

traced a pattern of criminal conduct, not a pattern of committing

offenses with a sexual component (e.g., "The Court must protect the

community from individuals like Mr. Morales who openly disrespect

the law by engaging in continuous criminal conduct and fail to

abide by their supervision convictions . . . .").2

             Second, the goal of promoting defendant's "insight of his

wrongdoings" may be construed as a rehabilitative goal.                However,

while the imposition of a sex-offender treatment program may

rehabilitate a person with a proven proclivity of committing sexual



        2
      We also note that the district court did not order Morales-
Cruz professionally evaluated "for the purpose of obtaining a
reliable expert opinion whether participation in a treatment
program for sexual offenders actually comported with the needs of
society or of" Morales-Cruz himself. See Rogers, 468 F. App'x at
363.

                                      -17-
offenses, Morales-Cruz has demonstrated no such proclivity. He may

have demonstrated a proven proclivity towards criminal conduct, but

not towards sexual offenses.      Therefore, it is unclear how sex

offender treatment would rehabilitate him as to sexual crimes if he

has not committed such crimes in the past 18 years, and it is even

less clear how the treatment program could "rehabilitate" him from

committing the non-sexual offense-based failure-to-register or

other crimes he has committed in the past 18 years.         Unless a sex

offender treatment program could be shown to be reasonably related

to rehabilitation from non-sexual crimes more generally, including

failure-to-register crimes, I cannot find a reasonable connection

here.

            Finally, the above arguments support a finding that there

is no reasonable relationship between defendant's criminal history

and record, the imposition of a sex offender treatment program, and

the goal of deterrence.    See United States v. T.M., 330 F.3d 123,

1240 (9th Cir. 2003) ("The fact that [the defendant] has lived the

last twenty years without committing a sex offense suggests that he

no longer needs to be deterred or shielded from the public.");

Scott, 270 F.3d at 636 ("Because the condition was based on conduct

that occurred more than a decade before the current offense, the

condition   would not   serve   the   goals   of   deterrence   or   public

safety"); Kent, 209 F.3d at 1077 ("[T]he use of the condition as a

deterrent makes little sense in light of the fact that the behavior


                                 -18-
to be deterred had ceased independently.").            The majority opinion

appears to infer a specific subjective state of mind on the part of

Morales-Cruz that would warrant the imposition of the special

condition.    Specifically, it appears to infer from the record a

state of mind from his continued failure to register that "he was

likely to or wanted to commit additional offenses freed from the

constraints of registration."         I find it difficult to join in that

conclusion when defendant has provided us an 18-year record of the

opposite state of mind.      The district court has imposed a sentence

and a series of quite burdensome special conditions tailored to

defendant's record that defendant does not challenge; in my view,

it is unreasonable to impose additional conditions of the type

challenged on appeal which rely on pure speculation and assumptions

regarding    defendant's    propensity       towards   specifically   sexual

offense-based crimes.

            Because   the   special    condition   imposed   constitutes a

"greater deprivation of liberty that is reasonably necessary" to

achieve the purposes of supervisory release, U.S.S.G. § 5D1.3

(b)(2), I respectfully dissent.




                                      -19-
