          United States Court of Appeals
                     For the First Circuit


No. 16-1035

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JOSE PADILLA-GALARZA,

                      Defendant, Appellant.


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

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.


     Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                         March 23, 2018
          BARRON, Circuit Judge.       Jose Padilla-Galarza appeals his

convictions for possession of a controlled substance with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1), and for being

a prohibited person in possession of ammunition, in violation of

18 U.S.C. § 922(g)(1).    He contends that both convictions must be

reversed on the ground that the evidence of his knowing possession

of the contraband was insufficient.        He argues in the alternative

that the convictions must at least be vacated due to various

alleged errors in the proceedings below -- principally that he was

"forced" to represent himself pro se because, in his view, the

District Court did not grant a sufficiently long continuance to

enable his preferred court-appointed attorney to prepare for trial

as full counsel.   He also challenges two aspects of his sentence:

a condition of his supervised release that he be evaluated for

participation in a mental health treatment program and a child

pornography forfeiture order.          We affirm his convictions and

sentence, subject to a remand for the limited purpose of striking

the child pornography forfeiture order.

                                      I.

          On   January   9,   2015,    federal   law   enforcement   agents

executed a search warrant at a house in Toa Baja, Puerto Rico,

which the government alleges was Padilla's residence.            Padilla,

together with two siblings who lived in the continental United

States, had inherited the house from their deceased parents.


                                 - 2 -
During the search, the agents found ammunition and 1,293.10 grams

of marijuana.   A grand jury thereafter indicted Padilla, who has

a prior felony conviction, with one count of being a prohibited

person in possession of ammunition, in violation of 18 U.S.C.

§ 922(g)(1), and one count of possession of a controlled substance

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

          In pre-trial proceedings, two court-appointed attorneys

represented Padilla. However, on August 4, 2015 -- one week before

trial was scheduled to begin on August 11 -- Padilla moved to

dismiss both attorneys.1   After a hearing on that motion on August

5, the District Court denied it.    But, because Padilla indicated

in his motion and at the hearing that he would be forced to

represent himself pro se if his two attorneys were not dismissed,

the District Court held another hearing on August 7 to ensure that

any waiver of Padilla's constitutional right to counsel would be

knowing, intelligent, and voluntary.   At this second hearing, the

District Court offered to appoint a different attorney, whom

Padilla preferred, as either full counsel or standby counsel, and

the District Court ordered a fifteen-day continuance to enable the

attorney to prepare.   Apparently because he thought a continuance




     1 At an earlier pre-trial hearing in July, Padilla had
indicated his dissatisfaction with one of his attorneys because
she did not "see eye to eye in case strategy" with him. But the
District Court found no grounds for dismissing her.



                               - 3 -
of that length would not give that attorney sufficient time to

prepare for trial as full counsel, Padilla decided to proceed pro

se with the assistance of that attorney as standby counsel.

             Padilla was tried on August 26 and 27 of 2015.            At the

close of the government's evidence, Padilla moved for acquittal on

both counts based on the insufficiency of the evidence against

him.   Padilla's standby counsel presented oral argument for the

motion, which the District Court denied.          Thereafter, Padilla did

not testify or otherwise present evidence on his behalf.              The jury

then returned a guilty verdict on both counts. Afterwards, Padilla

renewed his motion for acquittal, but the District Court denied

it.

             The District Court then sentenced Padilla to forty-six

months of imprisonment and three years of supervised release.               The

District   Court   specified   that,      among   the    conditions    of   his

supervised    release,   Padilla   must    "participate     in   an   approved

mental health treatment program for evaluation and/or treatment

services determination."       The District Court's written judgment

also stated that Padilla must forfeit "[a]ny and all materials or

property used or intended to be used in the possession, receipt,

distribution or transportation of child pornography, pursuant to

Title 18, USC Section 2253."

             Padilla then filed this appeal.            This Court appointed

counsel to represent him in these proceedings.


                                   - 4 -
                                     II.

            Padilla first contends that his convictions must be

reversed because the government's evidence was insufficient to

convict him of either possession of a controlled substance with

intent to distribute under § 841(a)(1) or being a prohibited person

in possession of ammunition under § 922(g)(1).               Because Padilla

preserved this argument in his motion for acquittal, we review his

challenge   de   novo,   "viewing    the    evidence   in   the   light   most

favorable to the government and taking all inferences in its

favor."   United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008).

            Padilla's challenge pertains solely to the knowledge

requirement for both crimes.        To sustain a conviction under either

statute, the government must prove, among other things, that the

defendant knowingly possessed the contraband.               United States v.

Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014) (§ 922(g)(1));

United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.

2007) (§ 841(a)(1)).       Padilla acknowledges that marijuana and

ammunition were found inside a bedroom in the house, but he

contends that, notwithstanding this fact, the government failed to

prove beyond a reasonable doubt that he knowingly possessed the

ammunition and the marijuana.2




     2 It is also undisputed that additional ammunition was found
elsewhere in the house. But, because we conclude that the evidence
of Padilla's knowing possession of the ammunition in the bedroom


                                    - 5 -
            Significantly, for the purposes of both statutes under

which Padilla was convicted, knowing possession of the contraband

may   be   inferred   from     evidence    of   actual   possession   (meaning

"immediate,     hands-on      physical     possession")     or    constructive

possession.     Guzmán-Montañez, 756 F.3d at 8 (§ 922(g)(1)); accord

García-Carrasquillo, 483 F.3d at 130 (§ 841(a)(1)).                   And, as

pertinent here, "[i]n order to show constructive possession, the

government must prove that the defendant 'had dominion and control

over the area where the contraband was found.'"             United States v.

Wight, 968 F.2d 1393, 1397 (1st Cir. 1992) (quoting United States

v.    Barnes,   890   F.2d    545,   549   (1st   Cir.   1989))    (discussing

constructive possession in the context of both drug offenses and

§ 922(g)(1)).     Thus, the record need show only that the evidence

was sufficient to permit a reasonable jury to find beyond a

reasonable doubt that Padilla exercised dominion and control "over

the area" in which the contraband was found, as a jury may infer

from such a finding of constructive possession that he knowingly

possessed the contraband if circumstances would make it reasonable

for a jury to do so.         Id.

            The evidence in this case more than sufficed to permit

a jury to reasonably find as much.          To begin with, the jury learned




was sufficient to convict him under § 922(g)(1), we need not
address the evidence of the additional ammunition.



                                     - 6 -
that Padilla had admitted in an interview with federal agents that

he was an owner of the house in which the ammunition and marijuana

were found, that he had made payments on the mortgage for the

house, and that he had installed four surveillance cameras at the

house in order to deter break-ins and vandalism.                Moreover, a

federal agent testified that she conducted drive-by surveillance

of the house ten days before the search of the house, and that

Padilla was standing outside the house as she drove by it.

            The jury further learned that Padilla admitted in the

interview with federal agents that he frequented the house during

the daytime and that he sometimes slept at the house overnight.

In addition, the government's evidence sufficed to show that the

bedroom in which the ammunition and the marijuana were found was

in a more organized and clean condition than the rest of the house,

from which a jury could have reasonably inferred that Padilla slept

in that bedroom when he stayed overnight at the house.           See United

States v. Matthews, 498 F.3d 25, 31 (1st Cir. 2007) (stating that

a   jury   is   "entitled   to   rely    on   plausible   inferences"     from

circumstantial     evidence).       And,      as   Padilla   concedes,     the

contraband was found in that bedroom together with personal items

that   indisputably     belonged        to    Padilla,    including:     photo

identification cards; receipts in his name from the previous year;

old correspondence addressed to him; and mannequins, decorations,




                                   - 7 -
and toy guns that Padilla admitted were his for the purpose of

making movies.

           In   the   face    of   this    evidence,      Padilla   nevertheless

contends that the evidence was insufficient to prove that he

knowingly possessed the contraband.             He points out that there was

no evidence of his fingerprints on the contraband and that the

house was "unkempt, disorganized and full of items."                 But neither

of those facts suffices to show that the jury was compelled to

find in his favor regarding whether he knew the contraband was in

the bedroom, given the government's ample evidence of his dominion

and control over that area.             In particular, Padilla acknowledges

that the evidence showed that the bedroom was relatively "more

organized" than the rest of the house, and that the contraband was

found in that bedroom "with items belonging to [Padilla]."                A jury

could reasonably infer from those facts that Padilla exercised

dominion and control over the area where the contraband was found.

See United States v. Smith, 680 F.2d 255, 259 (1st Cir. 1982)

("[I]f   the    evidence     can   be    construed   in    various    reasonable

alternatives, the jury is entitled to freely choose from among

them.").   And the jury was then entitled to infer knowledge of the

contraband from that evidence of constructive possession, given

that such an inference was reasonable under the circumstances,

even if there was no evidence of actual possession, such as the

type of fingerprint evidence that Padilla demands.


                                        - 8 -
             Padilla also contends that the evidence at trial was too

slight because it did not indicate when he inherited his ownership

share in the house, when he began "frequenting" the house, or when

he stored his personal items in the bedroom inside the house. But,

there is no dispute that those events occurred prior to when the

contraband was found.          And given, for example, the relatively

recent dates of the receipts, the comparatively organized and clean

condition of the bedroom, and the testimony that Padilla was seen

outside the house ten days before the search, a jury could have

reasonably found that his dominion and control over the area where

the contraband was found continued up to the time of the search.

             We therefore conclude that the government's evidence

sufficed   to   prove   that    Padilla    constructively   possessed   the

ammunition and the marijuana found in the bedroom of the house,

from which the jury was entitled to infer that Padilla knowingly

possessed the contraband, as that inference was reasonable in these

circumstances.      We thus affirm the denial of his motion for

acquittal.

                                    III.

             Padilla next contends in the alternative that, even if

the evidence against him was sufficient, both his convictions must

be vacated due to various alleged errors in the proceedings below.

We disagree.




                                   - 9 -
                                  A.

          Padilla's first argument on this score is that he was

"forced" into representing himself pro se in violation of his Sixth

Amendment right to counsel because, in his view, he was not given

a viable alternative to proceed with effective counsel.        Before

addressing the merits of this argument, some additional background

is needed for context.

          As explained above, the trial was originally set to begin

on August 11, 2015.    One week before then, Padilla moved for new

counsel on the ground that he did not trust his two court-appointed

attorneys or agree with their case strategy.          At a subsequent

hearing on August 7, 2015, the District Court offered Padilla a

choice to proceed with a different court-appointed attorney whom

Padilla   preferred,   Carlos   Vázquez,   or,   on    Padilla's   own

suggestion, to represent himself pro se with Vázquez's assistance

as standby counsel.    In either case, the District Court said it

would grant Vázquez only twenty days to prepare, which ultimately

amounted to a fifteen-day continuance.3    The District Court asked

Padilla which option he preferred, and Padilla responded that he

preferred to represent himself with Vázquez as standby counsel.




     3The fifteen-day continuance of the trial actually meant that
Vázquez was ultimately given nineteen, rather than twenty, days to
prepare.   Because neither party raises this point, it has no
bearing on our analysis.



                                - 10 -
The District Court then proceeded with a lengthy colloquy to ensure

both   that   Padilla        understood        his   constitutional   right    to

representation and that he was voluntarily waiving it.

          Padilla's decision to waive his constitutional right to

counsel   must    have       been    made      "knowingly,    voluntarily     and

intelligently."    United States v. Benefield, 942 F.2d 60, 65 (1st

Cir. 1991) (citing United States v. Campbell, 874 F.2d 838, 845-

46 (1st Cir. 1989)). Padilla contends, however, that he was not

actually given an option to be represented by effective counsel

because a longer continuance than the one the District Court

granted was needed in order for Vázquez to have represented him

effectively as full -- rather than merely standby -- counsel.

Padilla thus contends that, absent a longer continuance, he was

forced to make a Hobson's choice, by which his only real option

was to proceed pro se, as the only other counsel available to him,

besides Vázquez, were the two attorneys who he contends could not

represent him effectively.          Thus, in Padilla's view, his waiver of

his constitutional right to representation was not voluntary.

          However,       a    premise     of    Padilla's    challenge   to   the

effectiveness of his waiver -- namely, that the continuance was

too brief to permit Vázquez to provide constitutionally adequate

representation as full counsel and thus that Padilla was not

actually offered an option of choosing an effective counsel -- is




                                     - 11 -
not supported by the record.4        In determining how long to continue

the trial, the District Court reasoned that it was not a "very

complicated" case and that Vázquez would have the benefit of the

preparation done by Padilla's previous two attorneys and their two

investigators.     At the hearing, Vázquez did initially tell the

District Court, with respect to the time that he needed to prepare

as full counsel, that he was "thinking in terms of a month to two

months."     However, when the District Court told Vázquez that one

to two months was not an option and that he would have only twenty

days if Padilla elected to use him as full counsel, Vázquez said

"okay."

             On appeal, Padilla does not dispute that the District

Court had discretion to determine how long of a continuance to

grant,     even   if   that   decision      potentially   implicated    the

constitutional right to counsel.         See United States v. Zimny, 873

F.3d 38, 52 & n.17 (1st Cir. 2017).          Moreover, it is clear that,

in   order   to   establish   that    not   granting   Padilla   a   longer

continuance erroneously deprived him of his right to counsel,

Padilla must show "that the denial amounts to 'an unreasoning and




      4Because we conclude that Padilla had a real option to be
represented effectively by Vázquez as full counsel, we need not
address his other implicit premise that his original two attorneys
could not have represented him effectively. We note, too, that
Padilla has not identified any other ground for concluding that
his waiver of his right to counsel was ineffective.



                                 - 12 -
arbitrary   insistence   upon   expeditiousness   in   the   face   of   a

justifiable request for delay.'"    Id. at 53 (quoting United States

v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)).5        Padilla offers

no persuasive argument, however, as to why, on this record, the

District Court was not entitled to determine that no more than

twenty days was needed for Vázquez to prepare as full counsel.

            In this regard, we see no error in the District Court's

determination that this was not a "very complicated" case.          After

all, the only genuinely disputed issue at the trial was whether

Padilla actually or constructively possessed the contraband found

in the house, and there were relatively few witnesses and exhibits.

See United States v. Rodríguez-Durán, 507 F.3d 749, 767 (1st Cir.

2007) (finding no abuse of discretion in denying continuance in

part because "the factual circumstances were not particularly

complicated" where charges for drug possession with intent to

distribute "stemmed from a single episode with a fixed cast of

participants").6



     5 Because Padilla has not made this showing, we need not
decide whether Padilla would also have to show prejudice in this
context, a question we recently reserved in Zimny, 873 F.3d at 52-
53.
     6 The District Court also pointed out that Vázquez would
benefit from the preparation already done by Padilla's two previous
attorneys and their two investigators.       See United States v.
Hurley, 63 F.3d 1, 16 (1st Cir. 1995) (reasoning that a denial of
a continuance was not an abuse of discretion in part because
counsel benefitted from the work of co-defendants' counsel who had
longer time to prepare).    And, although Padilla states that he


                                - 13 -
          Consistent with this conclusion, we observe that Vázquez

himself responded by saying "okay" when informed of the continuance

that would be allowed, without indicating he would need more time

in order to provide effective representation on that schedule.

Cf. Zimny, 873 F.3d at 55 (noting that a request for a continuance

should be made "in clear, unmistakable terms").7    And we observe

as well that Padilla does not point to any particular reason why

longer than twenty days was in fact needed, such as by identifying

further investigation that the defense would have needed more time

to complete.8   See United States v. Williams, 630 F.3d 44, 48 (1st

Cir. 2010) (finding no abuse of discretion in denying continuance,

which had been requested on the basis of an assertion that the

record was voluminous, given in part that "no specific explanation

ha[d] been provided as to why those particular materials justified

additional time").



distrusted those attorneys and disagreed with their case strategy,
he does not contend that the work they and their investigators
performed on his case could not permissibly be considered by the
District Court in determining the duration of the continuance.
     7 We note that, by way of contrast, Vázquez felt comfortable
telling the District Court "no" when the District Court asked him
if he could be ready as full counsel within two days or one week
from when trial was originally scheduled to begin.
     8 The only investigative work that Padilla references on
appeal was tracking down his father's firearms licenses "that were
critical to his defense."    But, as Padilla acknowledges, those
licenses were ultimately admitted into evidence despite the brief
continuance.



                               - 14 -
          For these reasons, we conclude that it was within the

District Court's discretion to decide not to grant a longer

continuance.   We thus disagree with Padilla that his decision to

instead proceed pro se with standby counsel was a Hobson's choice.

In   consequence,   a   premise   for      Padilla's    challenge   to     the

effectiveness of his waiver of his right to counsel -- that he had

no option of choosing an effective counsel because the continuance

was too brief -- is mistaken.       We thus see no basis for finding

merit in Padilla's contention that his waiver of his right to

counsel was ineffective.

                                    B.

          Padilla   next   contends      that   his   convictions   must    be

vacated on the ground that the District Court erred by not advising

him that he could testify at his trial in narrative form and thus

without anyone asking him questions.         And he contends that he was

thereby prejudiced, because he was not aware that he could have

testified notwithstanding that he was proceeding pro se.

          Padilla asserts that the standard of review is de novo,

but the government suggests that our review is for only plain error

because Padilla did not raise below his claim that the District

Court should have advised him that he could testify in narrative

form. However, because this type of claim "lies in . . . ignorance

of the law," at least one other circuit has held that whether it

was error not to advise a defendant of the option to testify in


                                  - 15 -
narrative   form   is   reviewed   de   novo   notwithstanding    that   the

defendant did not raise a specific objection below.              See United

States v. Ly, 646 F.3d 1307, 1312 & n.5 (11th Cir. 2011).                For

present purposes, we may assume that our review is de novo, because

even under that more favorable standard of review, Padilla's

challenge fails.

            Padilla asserts in his appellate brief that, had he been

advised by the District Court that he could testify in narrative

form, "[h]is testimony would have filled in some of the areas that

were left out by the government's witnesses."           However, Padilla

does not actually tell us what his testimony would have been, so

we have no basis to conclude that his testimony would have had any

effect on the verdict.     But we need not decide whether the alleged

constitutional error here was harmless or whether this type of

error is even subject to harmless error review (a question neither

party briefed), see Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-

08 (2017), because we see no error.

            A district court generally has no duty to apprise a

criminal defendant of the right to testify or to secure an explicit

waiver of that right, as the responsibility to advise a defendant

of the right to testify "rests with his lawyer."            Rosenthal v.

O'Brien, 713 F.3d 676, 687 (1st Cir. 2013) (citing Siciliano v.

Vose, 834 F.2d 29, 30 (1st Cir. 1987)). Padilla proposes, however,

that when a defendant proceeds without a lawyer, it is "incumbent


                                   - 16 -
upon the Court to fulfill this duty," at least where it becomes

manifest that the pro se defendant does not understand that he can

testify without anyone asking him questions.

          But this argument fails because Padilla did proceed with

standby counsel -- whom the District Court described to Padilla as

his resource on federal law and procedure -- who could have

explained to Padilla that he could testify in narrative form.

Indeed, "the wisdom of the trial judge" in appointing standby

counsel lies in the fact that the pro se defendant will therefore

have counsel available "to perform all the services a trained

advocate would perform ordinarily," including "examination . . .

of witnesses."   Mayberry v. Pennsylvania, 400 U.S. 455, 467-68

(1971) (Burger, C.J., concurring).     Thus, we fail to see how it

was manifest that Padilla would have needed the District Court to

apprise him of his right to testify in narrative form.

          Padilla does point to an Eleventh Circuit decision, Ly,

646 F.3d 1307, which held that the district court erred by not

correcting a pro se defendant's "obvious" misunderstanding of his

option to testify in narrative form.    Id. at 1317.   But that case

is quite different from this one.

          In Ly, during a colloquy that the district court had

initiated regarding the pro se defendant's decision not to testify,

the defendant repeatedly told the district court that the reason

he was not testifying was that "I don't have counsel to ask me


                              - 17 -
questions."    Id.   at   1311-12.        Padilla   has   not   persuasively

identified any statement, let alone one from a colloquy over his

right to testify, that would have put the District Court on similar

notice that he was not aware that he could testify in narrative

form.   Padilla certainly never told the District Court that the

reason he was not testifying was that he did not have counsel to

ask him questions.     And, of course, he did have standby counsel

who could have asked him questions.           We thus conclude that the

District Court did not err on this score.

                                     C.

          Padilla also contends that his convictions should be

vacated in light of several statements made by the prosecutor at

trial that Padilla alleges were improper.           Padilla did not object

to any of the statements that he now challenges on appeal.              Nor

did Padilla's standby counsel object to the statements on Padilla's

behalf, even though the standby counsel did make other objections

during the trial.    Accordingly, as Padilla concedes, our review is

only for plain error.

          To show plain error, Padilla must show: "(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant’s substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings."    United States v. Madsen, 809 F.3d 712,




                                - 18 -
717 (1st Cir. 2016) (quoting United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001)).           Padilla has not made such a showing.

                                          1.

               To    begin   with,     Padilla   points   to    the   prosecutor's

references         during    opening    arguments   to    the   house   where    the

contraband was found as Padilla's "residence."9                  Padilla contends

that       these    references   improperly      prejudiced     the   jury   because

whether the house was in fact his residence was a disputed issue.

"Ideally, to preclude any argument of error, the prosecutor might

have used the locution that 'the evidence will show' that" the

house was Padilla's residence.                 United States v. Capelton, 350

F.3d 231, 237-38 (1st Cir. 2003).                But, even assuming a clear or

obvious error, Padilla fails to show how the references affected

his substantial rights by prejudicing the jury and resulted in a

miscarriage of justice.

               In fact, we have previously held that it was not a

manifest abuse of discretion to deny a new trial -- a lower

standard than plain error -- in a case in which the prosecutor

repeatedly referred to each defendant who was charged with drug




       9
       Padilla directs our attention to nineteen references during
the trial to the house as Padilla's "residence."      However, the
majority of the statements that he identifies were in fact made by
government witnesses, not the prosecutor. The only references by
the prosecutor to the house as Padilla's "residence" that Padilla
identifies were made during the opening arguments.



                                        - 19 -
offenses as a "drug dealer" in the opening arguments.             Id. at 238.

We reasoned that the references did not prejudice the jury because

(1) the district court had cautioned the jury before the opening

arguments that the counsel's words were not evidence and (2) the

government     later    introduced     "substantial"   evidence    that   the

defendants were drug dealers.          Id.

             Likewise, here, the District Court instructed the jury

prior to the government's opening argument that what the prosecutor

was going to say was not evidence.               And the government then

introduced substantial evidence from which a jury could reasonably

infer   that   the     house   was   Padilla's   residence,   including   his

admissions during an interview with federal agents that he owned

and frequented the house, the testimony that he was surveilled

outside the house, and the evidence that his personal items were

found inside the house.          Nor does Padilla develop any argument

otherwise.

                                       2.

             Moving on to the closing arguments, Padilla points to

certain statements that the prosecutor made during the rebuttal

portion with respect to Padilla's defense theory, presented during

his own closing argument, that the ammunition found in the house

had belonged to his father and had remained in the house without

Padilla's knowledge since his father's death.             In this regard,

Padilla contends that it was improper for the prosecutor to point


                                     - 20 -
out that some of the caliber sizes of the firearms listed in his

father's firearm licenses "did not match" the caliber sizes of the

ammunition found in the house, given that the government did not

introduce expert testimony on this point.

          The problem with this contention is that evidence of the

caliber sizes of the father's licensed firearms and the caliber

sizes of the ammunition in the house were in the record.         Thus, we

do not see how it was improper -- let alone clearly improper -- for

the prosecutor to comment on an inference that the jury might draw

from the fact that the caliber sizes were different.           See United

States v. Smith, 982 F.2d 681, 683 (1st Cir. 1993) (explaining

that "inferences the jury might draw from the evidence" are "a

proper subject of comment by the prosecutor" in closing arguments).

          Padilla   also   challenges   the   prosecutor's      reference

during the rebuttal to the fact that no firearms were found inside

the house, from which the prosecutor inferred that any firearms

belonging to the father had been removed.         The prosecutor then

suggested to the jury that it would be implausible that any

ammunition belonging to Padilla's father would have remained in

the house after the father's firearms were removed.

          Padilla   asserts   that   this   suggestion   was    improper.

However, "a prosecutor has a right to comment on the plausibility

of the defense theory."    United States v. Henderson, 320 F.3d 92,

106 (1st Cir. 2003) (citing United States v. Garcia, 818 F.2d 136,


                               - 21 -
143 (1st Cir. 1987)).      And Padilla makes no argument as to why the

prosecutor's remark clearly exceeded the scope of that right.

                                         3.

             Finally, Padilla challenges the following statement made

by the prosecutor during the rebuttal portion of closing arguments:

             This case is about an ex PRPD officer,
             convicted   felon,   person   that  has  law
             enforcement background.   This is not a case
             about a grandmother, naive, that had never
             seen any type of narcotics, or was never
             confronted and had no participation in
             narcotics. This is not a case about an old
             grandfather, 85 years old, who had no law
             enforcement background, had never seen a gun
             before, had never seen a bullet before, and
             would not be able to identify them.

             Padilla contends that the fact that he was a former

police officer did not bear on his knowledge about narcotics and

that the implied reference to his "participation in narcotics"

improperly    "insinuated      illegal     usage   or     activity."       He    also

contends that the reference to him as "a convicted felon" "invited

the   jury   to   focus   on   his   bad      character    rather   than    on   the

evidence."

             The government responds that the prosecutor properly

invoked Padilla's former profession in order to rebut Padilla's

theory that he was ignorant of the nature of the contraband found

in the house.     The government also counters that the reference to

Padilla's status as a convicted felon -- which is an element of

the § 922(g)(1) charge -- was proper because it rebutted Padilla's


                                     - 22 -
claim to the jury in his closing argument that the § 922(g)(1)

charge against him "could happen to anybody" who inherits a house

from someone with a weapons permit.

           Even      if   Padilla   is   right    that    these   comments   were

improper, he has failed to make any developed argument as to how

the prosecutor's references to him as a former police officer and

convicted felon affected his substantial rights and resulted in a

miscarriage of justice.         And, in any event, as we explained in

Part II, while Padilla challenges only the sufficiency of the

government's evidence with respect to his knowledge that the

contraband was in the bedroom, the government offered a wealth of

evidence on that score.        Padilla has thus failed to show how these

references made it reasonably probable that, had they not been

made, the outcome at trial would have been different.                See United

States v. Latorre-Cacho, 874 F.3d 299, 303 (1st Cir. 2017) ("[T]he

third   prong   of    the   plain   error      standard   . . .   requires   the

defendant to show . . . that it is reasonably probable that the

clear and obvious error affected the result of the proceedings.").

Accordingly he has failed to satisfy the plain error standard that

applies here.

                                         IV.

           Finally, Padilla challenges two aspects of his sentence.

We reject his first challenge but, in accord with the government's

own view, grant relief with respect to his second challenge.


                                     - 23 -
                                      A.

             To begin with, Padilla objects to a special condition of

his supervised release that he "shall participate in an approved

mental health treatment program for evaluation and/or treatment

services determination."          The condition specifies that, "[i]f

deemed necessary, the treatment will be arranged by the [probation]

officer in consultation with the treatment provider; the modality,

duration and intensity o[f] treatment will be based on the risks

and needs identified."      The presentence report recommended this

condition.     Padilla objected to the condition at the sentencing

hearing,   but   the   District    Court    concluded,    in   light   of   his

experiences interacting with Padilla over the course of the case,

that "this is a good condition for him."

             "We review conditions of supervised release for abuse of

discretion."     United States v. DaSilva, 844 F.3d 8, 11 (1st Cir.

2016) (quoting United States v. Del Valle-Cruz, 785 F.3d 48, 58

(1st Cir. 2015)).      The District Court has "broad discretion" to

impose   conditions    of   release    provided    they    are   "reasonably

related," as pertinent here, to the provision of rehabilitative

treatment for the defendant.        United States v. Rivera-López, 736

F.3d 633, 635 (1st Cir. 2013); see also U.S. Sentencing Guidelines

Manual § 5D1.3(d)(5) (U.S. Sentencing Comm'n 2015) (release may be

conditioned on participation in a mental health program "[i]f the




                                   - 24 -
court has reason to believe that the defendant is in need of

psychological or psychiatric treatment").

            Padilla contends that the District Court abused its

discretion in imposing the mental health counseling condition

because his court-ordered psychiatric evaluation did not diagnose

him with a mental illness.         However, the government points out

that the psychiatric evaluation concluded that Padilla did exhibit

"features" of a particular mental illness -- a point Padilla does

not dispute.   See United States v. Perazza-Mercado 553 F.3d 65, 75

(1st Cir. 2009) (noting, with respect to a court's imposition of

a condition of supervised release, that "a court's reasoning can

often be inferred after an examination of the record" (internal

quotation marks omitted)).       The condition of supervised release at

issue   requires   only   that   Padilla   be   evaluated   for   treatment

services.   Thus, if treatment services are not "deemed necessary,"

then under the plain terms of the condition, no treatment will be

arranged.   Padilla identifies no case law indicating that a mental

health counseling condition like this one can be imposed only if

the defendant is diagnosed with a mental illness. Nor are we aware

of any such authority.     Accordingly, we conclude that the District

Court did not abuse its discretion by including this condition of

supervised release.




                                  - 25 -
                                          B.

             Padilla also challenges the District Court's order of

forfeiture of "[a]ny and all materials or property used or intended

to     be   used      in   the     possession,        receipt,    distribution     or

transportation of child pornography, pursuant to Title 18, USC

Section 2253."        The government agrees with Padilla that this order

of forfeiture was an error and should be excised from the written

judgment.

             Forfeiture under criminal statutes like 18 U.S.C. § 2253

is "an element of the sentence imposed following conviction."

Libretti v. United States, 516 U.S. 29, 38-39 (1995) (emphasis

omitted).       Accordingly, an order of criminal forfeiture must be

supported by a factual foundation in the record.                    See id. at 48.

Nothing in the record here, however, has any discernible connection

to child pornography.            Accordingly, we agree with the parties that

this    order    of    forfeiture     should     be    struck    from   the   written

judgment.

                                          V.

             We therefore remand for the limited purpose of striking

the child pornography forfeiture order, but we affirm the rest of

the District Court's judgment.




                                        - 26 -
