          United States Court of Appeals
                      For the First Circuit


No. 14-1850

                     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]


                              Before

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


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


                           April 8, 2016
             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


                                 - 2 -
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 release1 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

     1 Originally, the district court had imposed ten years of
supervised release. Pabon appealed that sentence, and in light of
a recent Seventh Circuit case, United States v. Goodwin, 717 F.3d
511 (7th Cir. 2013), the United States agreed that the ten-year
term was error. We remanded. See United States v. Pabon, No. 11-
2005 (1st Cir. Oct. 1, 2013) (unpublished order). At resentencing,
the district court reduced the supervised release term to five
years.
     2 The district court also required Pabon to participate in a

mental health treatment program and to comply with sex offender
registration laws. Pabon does not appeal these conditions.


                              - 3 -
            (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 advance, by the
            probation officer."

Pabon's counsel objected to these conditions as unreasonable in

violation of 18 U.S.C. § 3583(d).           Notwithstanding, the district

court imposed the conditions, finding that they were reasonably

necessary     to      achieve      deterrence,       incapacitation,        and

rehabilitation in light of Pabon's profuse criminal history.             That

history   includes    the     underlying   sex   offense   conviction,   four

assault convictions (two within the past ten years), and another

SORNA violation just months after the sex offense conviction.

            Pabon timely appealed.3          On appeal, he continues to

challenge the conditions as unreasonable, in violation of 18 U.S.C.

§ 3583(d).    He asserts that they restrict his liberty more than

reasonably necessary to accomplish the goals of sentencing, that

the district court failed to provide an adequate explanation for

them, and that they are unsupported by the record.               In addition,

he raises several new arguments.           He asserts that the conditions

impermissibly      delegate    authority    to   a   probation    officer   in


     3 We note that although Pabon agreed to an appeal waiver, the
government has expressly declined to rely on the waiver. See Gov't
Br. 8 ("It is easier to resolve the appeal on the merits, however,
so the Court should bypass [the waiver] argument."). We have the
discretion to proceed to the merits. United States v. Carrasco-
De-Jesús, 589 F.3d 22, 26 n.1 (1st Cir. 2009).



                                    - 4 -
violation      of    Article     III     of   the       Constitution,       that     the

associational conditions unconstitutionally infringe his right to

associate with his minor daughter, that the employment condition

violates 18 U.S.C. § 3563(b)(5) and U.S.S.G. § 5F1.5, and that the

polygraph test condition is inherently unreliable and violates the

Fifth Amendment privilege against self-incrimination.

II. Reasonableness

             We hold that the conditions are reasonable under 18

U.S.C.   §     3583(d).        Because    Pabon      properly      preserved       these

challenges below, we review for abuse of discretion. United States

v. Mercado, 777 F.3d 532, 537 (1st Cir. 2015).

             In assessing the validity of the conditions of
             supervised release, we apply 18 U.S.C.
             § 3583(d) and U.S.S.G. § 5D1.3(b), which
             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. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015)

(internal formatting and citation omitted).                     These goals include

"the need to deter the defendant from further criminal 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."                    United States v.

York,    357    F.3d    14,    20    (1st     Cir.      2004)     (citing    U.S.S.G.


                                         - 5 -
§ 5D1.3(b)(1); 18 U.S.C. § 3583(d)(1)); see also 18 U.S.C. §

3553(a)(2)(B)-(D).       "The critical test is whether the challenged

condition is sufficiently related to one or more of the permissible

goals of supervised release, and the fact that a condition of

supervised   release     is    not    directly     related       to    the      crime    of

conviction does not render that condition per se invalid."                        United

States v. Sebastian, 612 F.3d 47, 50 (1st Cir. 2010) (quoting York,

357 F.3d at 20) (some internal formatting omitted).                     The condition

imposed    must   also   be    "consistent        with    any    pertinent        policy

statements from the Sentencing Commission."                 York, 357 F.3d at 20

(citing U.S.S.G. § 5D1.3(b)(2)).

            In addition, the district court is "required to provide

a reasoned and case-specific explanation for the conditions it

imposes." Del Valle-Cruz, 785 F.3d at 58 (internal quotation marks

and   citations    omitted).         Not   only    does    such       an   explanation

facilitate appellate review, but the statute also requires it.

Id. (quoting 18 U.S.C. § 3553(c)).              Nevertheless, even absent an

adequate explanation by the district court, we may infer the

court's reasoning from the record.              Id. at 58-59.           In all cases,

however, the sentence must find "adequate evidentiary support in

the record."      Id. at 58.

            Applying     the   above       principles,      we    have       found      sex

offender   treatment     conditions        a   reasonable       means      of   enabling

defendants to "manage their impulses and . . . reduce recidivism."


                                       - 6 -
United States v. Morales-Cruz, 712 F.3d 71, 75 (1st Cir. 2013)

(quoting McKune v. Lile, 536 U.S. 24, 33 (2002)); see also Mercado,

777 F.3d at 538 (sex offender treatment condition "is reasonably

related to rehabilitation and protecting the public").            For sex

offenders, that risk of recidivism is "frightening and high."

Sebastian, 612 F.3d at 51 (quoting Smith v. Doe, 538 U.S. 84, 105

(2003)) (internal quotation marks omitted).         Moreover, subsequent

criminal conduct, whether or not of a sexual nature, indicates an

enhanced risk of recidivism.         See Mercado, 777 F.3d at 539;

Morales-Cruz, 712 F.3d at 75; York, 357 F.3d at 21.             Thus a sex

offender treatment condition may be reasonable even where the

present offense is not sexual in nature.      See Mercado, 777 F.3d at

538.

          Accordingly,   we   have   upheld   sex    offender    treatment

conditions -- despite the conviction not being a sex offense --

where the defendant committed a prior sex offense in recent years,

see York, 357 F.3d at 20-21, or where the intervening time between

a distant sex offense and the present conviction is marked by

substantial criminal activity, see Mercado, 777 F.3d at 537-38;

Morales-Cruz, 712 F.3d at 74-76; Sebastian, 612 F.3 at 50-51. More

generally, even when a defendant has not previously committed a

sex offense, a sex offender treatment condition may be proper if

the defendant has otherwise exhibited an enhanced risk of sexual




                                - 7 -
misconduct.     See United States v. Prochner, 417 F.3d 54, 63-64

(1st Cir. 2005).

           Our analyses of restrictions on association with minors

have followed an analogous approach.          Such restrictions operate to

protect the public, especially children, from the defendant, see

United States v. Santiago, 769 F.3d 1, 9 (1st Cir. 2014); United

States v. Smith, 436 F.3d 307, 312 (1st Cir. 2006), as well as to

promote the defendant's rehabilitation.           See Mercado, 777 F.3d at

538; Prochner, 417 F.3d at 64.         Similar to sex offender treatment

conditions,     associational    conditions     may   be    proper      where    the

defendant has recently committed a sex offense against a minor, or

where the intervening time between a prior sex offense and the

present conviction is marked by substantial criminal activity, see

Mercado, 777 F.3d at 538-39; Santiago, 769 F.3d at 9, or where the

defendant's     conduct   otherwise     indicates     an    enhanced     risk     to

minors, see Prochner, 417 F.3d at 64-65; Smith, 436 F.3d at 311-

12.   By contrast, we have vacated associational conditions where

the defendant's prior sex offense occurred in the distant past,

the intervening time was marked by lawful social activity, and the

district   court    did   not   otherwise     explain      the   need   for     such

restrictions.      See Del Valle-Cruz, 785 F.3d at 59-64.

           In      addition,    our     cases    upholding         associational

conditions have emphasized a key limitation.                     Generally, such

conditions are "sufficiently circumscribed" when they do not place


                                      - 8 -
an outright ban on association with minors, but only curtail

association, such as by requiring pre-approval by the probation

officer or another authority, see Mercado, 777 F.3d at 539;

Santiago, 769 F.3d at 6; Smith, 346 F.3d at 312, or by operating

in limited contexts, see Prochner, 417 F.3d at 64-65 (upholding

condition       prohibiting     "unsupervised   contact"   with   minors    and

"direct supervision" of minors).          Where the restriction is subject

to supervision by the probation officer, a safeguard is that the

defendant can petition the district court to modify the condition

in the event that approval has been unreasonably withheld.                  See

Mercado, 777 F.3d at 539 (citing 18 U.S.C. § 3583(e)(2); Fed. R.

Crim. P. 32.1 advisory committee's note); Prochner, 417 F.3d at 65

n.8.4

                Recently, we applied the above principles in two SORNA

sentencing cases.       Del Valle-Cruz, 785 F.3d 48; Mercado, 777 F.3d

532.        In both cases, as here, the defendant failed to register in

violation of SORNA, and the district court imposed a sentence of

incarceration        followed     by   supervised   release   with    special

conditions.        See Del Valle-Cruz, 785 F.3d at 53-54; Mercado, 777

F.3d at 534-35.        As here, the special conditions included a sex

offender        treatment   program    with    polygraph   testing,   and    no




        4
       In noting this limitation, we do not decide that an absolute
ban on association would be error under similar circumstances. It
suffices that we do not face a scenario here involving such a ban.


                                       - 9 -
contacting, residing, working, or volunteering with minors without

advance approval by the probation officer.           The Mercado panel

affirmed the sentence, finding the conditions adequately supported

by the district court's findings and the defendant's criminal

history, including a prior sex offense conviction that occurred

some ten years prior and substantial criminal activity in the

intervening time.    See 777 F.3d at 537-39.

            By contrast, Del Valle-Cruz vacated the contact and

residence   restrictions.    785   F.3d   at   52.   In     doing   so,   we

emphasized two key distinctions from Mercado and other cases.

First, the defendant's criminal history was notably less.                 His

sole prior sex offense conviction had occurred fifteen years

earlier.    See id. at 61-62.   And he had not committed any crimes

for nearly a decade prior to the present conviction but had pursued

a college degree and, at the time of his arrest, worked two jobs.

See id.      Second, the district judge "offered no explanation

whatsoever for the conditions imposed."        Id. at 61.    And in light

of the defendant's sparse criminal history, the panel did not find

the conditions adequately supported by the record.          See id. at 62.

            Pabon's case is similar to Mercado and unlike Del Valle-

Cruz.     He has a copious criminal history and received a clear

explanation for the conditions imposed.           As for his criminal

history, in 2005, he repeatedly molested the fourteen-year-old




                                - 10 -
daughter of his then-girlfriend in her mother's home.5             He was

convicted in 2008, less than three years before the present

conviction.    Not only was this offense close in time to the SORNA

violation, but it also involved a prolonged sexual relationship

with a minor over whom he was in a position of apparent trust and

authority.     This grave offense warranted an eight-year prison

sentence.     That seven of those years were suspended does not

detract from the gravity of the crime.        See Sebastian, 612 F.3d at

51.

             Moreover, Pabon has accumulated a staggering array of

other convictions.      At the time of sentencing, he had committed

enough criminal activity to put him in the highest criminal history

category (VI) under the sentencing guidelines.             As previously

noted, among his convictions were four for assault, with two in

the last ten years, and a prior SORNA violation mere months after

his sex offense conviction.

             Against   the   backdrop   of   this   substantial   criminal

history, the district court explained the rationale for imposing

the conditions. The court found that the conditions were necessary

in order to keep the public safe, and especially to protect minors


      5The uncontested facts from the presentence investigation
report show that Pabon molested the minor "on numerous occasions"
in her mother's home. He evaded the mother's notice by molesting
the minor only when the mother was in a different part of the
house. In addition, Pabon and the minor exchanged furtive letters
that were replete with sexual references.


                                  - 11 -
from Pabon's violent inclinations.         It explained that Pabon had

"demons" he needed to deal with, a history of beating up women

that needed to be addressed, and an inability to control his anger

that made him a potential danger to children.       Moreover, the court

also   found   that   the     conditions    would   facilitate   Pabon's

rehabilitation, noting that Pabon's demons would not just go away

by themselves.

          In addition, the district court did not ban Pabon's

association with minors, but instead required prior approval by

the probation officer.      This diminishes the deprivation of Pabon's

liberty, for "[t]here is no basis for believing that the probation

officer will unreasonably withhold permission."       Mercado, 777 F.3d

at 539.   And in the event that the officer denies permission

unreasonably, Pabon may petition the district court for redress.

See id.; 18 U.S.C. § 3583(e)(2).

          In sum, the district court adequately justified the

sentence in relation to the goals of sentencing and Pabon's

offense, history, and characteristics.        It also properly limited

the conditions so as not to deprive more liberty than necessary to

achieve the sentencing goals.        The court acted well within its

discretion.

III. Remaining Challenges

          At most, we review the remainder of Pabon's challenges

for plain error.   Pabon has waived these challenges because he has


                                  - 12 -
not even attempted to meet his four-part burden for forfeited

claims under United States v. Padilla, 415 F.3d 211, 218 (1st Cir.

2005) (en banc).        In any event, the district court did not commit

plain error.      Most of Pabon's claims are foreclosed by precedent.

Of the three claims that are not, one fails on the second prong of

the plain error test.        The other two assume improper constructions

of the conditions, and we note the correct constructions.

            Under the plain error doctrine, "[i]f an error is not

properly preserved, appellate-court authority to remedy the error

. . . is strictly circumscribed."             Puckett v. United States, 556

U.S. 129, 134 (2009); see also Padilla, 415 F.3d at 218 ("the plain

error    test    constitutes    a   mandatory     limitation    on    a    federal

appellate court's remedial authority").            "[A] reviewing court may

set aside a challenged portion of a criminal sentence if, and only

if, the appellant succeeds in showing (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."       Padilla, 415 F.3d at 218 (internal quotation marks

omitted).       The party asserting plain error bears the burden of

persuasion.      Id.

            Measured against this familiar rubric, Pabon has waived

review of his forfeited claims because he does not even attempt to

meet the four-part test.            It is well established that "issues


                                     - 13 -
adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."                      United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).                      Although Pabon argues

that the district court has erred in numerous ways, he does not

anywhere cite the four-factor test or attempt to establish its

latter three factors.                 Even after the government pointed this

deficiency out to Pabon in its briefing, Pabon still failed to

address the Padilla factors in his reply brief.                      Having failed to

do so, Pabon has waived these claims.

             In    any       event,    there    was    no   plain   error.      We   have

previously rejected similar challenges on plain error review.                        See

Mercado, 777 F.3d at 536-37 (rejecting Article III challenge to

delegation of authority to a probation officer); id. at 539

(rejecting    freedom          of     association      challenge    to    associational

conditions); Prochner, 417 F.3d at 65 (rejecting 18 U.S.C. §

3563(b)(5)        and    U.S.S.G.        §     5F1.5    challenge        to   employment

condition); York, 357 F.3d at 23 (rejecting inherent unreliability

challenge to polygraph test condition).

             Pabon's most plausible challenge is that the district

court   failed          to    make      sufficient      findings     justifying       the

restrictions on association with his minor daughter.                             Relying

primarily on the Ninth Circuit's decision in United States v. Wolf

Child, 699 F.3d 1082 (9th Cir. 2012), he asserts that the district

court was required to make a particularized finding that he poses


                                             - 14 -
a danger to his own child, not merely to minors in general.      At a

minimum, this challenge falters on the second prong of plain error

review, which requires the asserted error to "be clear or obvious,

rather than subject to reasonable dispute."      Puckett, 556 U.S. at

135.       While we have held that an infringement of a parent's right

to associate with his child requires "a greater justification,"

Del Valle-Cruz, 785 F.3d at 62, we have never before required the

kind of particularized finding that Pabon asserts is necessary.6

Moreover, at least two courts of appeals have held that a prior

sex offense against a minor is sufficient to justify similar

associational conditions, even where the record did not include

particularized findings.      See United States v. Rodriguez, 558 F.3d

408, 417 (5th Cir. 2009); United States v. Heidebur, 417 F.3d 1002,

1005 (8th Cir. 2005).        Where, as here, there is no controlling

authority or clearly established legal norm, and other circuits

have differing views, we think that the issue is, at best, one of

reasonable dispute.      Thus there is no clear or obvious error.


       6We recently recognized, in dictum, that whether a
defendant's right to associate with his minor son may be restricted
based on prior sexual misconduct toward minor girls presents
"substantial constitutional questions." United States v. Vélez-
Luciano, __ F.3d __, No. 14-1738, 2016 WL 759876, at *7 (1st Cir.
Feb. 25, 2016).     Vélez-Luciano, however, did not decide that
question, and neither do we.     In any event, the Vélez-Luciano
dictum is inapposite, as it was based on the fact that sexual
proclivities toward girls do not necessarily indicate sexual
proclivities toward boys.    Id. at 21.    Here, Pabon, who has a
history of sexual misconduct toward girls, is seeking to associate
with his minor daughter.


                                  - 15 -
            Pabon's two remaining challenges fail given the proper

construction of the district court's order.          First, Pabon argues

that the polygraph test condition requires him to answer self-

incriminating questions lest his release be revoked in violation

of   his   Fifth   Amendment   privilege   against   self-incrimination.

Revoking a probationer's release for asserting his Fifth Amendment

rights is plainly unconstitutional.        See York, 357 F.3d at 24-25.

However, the condition does not spell out that forbidden penalty,

but merely requires Pabon to participate in polygraph testing.

Thus we do not read the polygraph test condition as also obliging

Pabon to disclose information that may lead to a separate criminal

conviction.    See id. at 25 (citing United States v. Davis, 242

F.3d 49, 52 (1st Cir. 2001)).

            Second, Pabon claims that the no-contact condition is

overbroad because it prohibits even incidental encounters with

children and practically amounts to house arrest.         It takes more

than a stretch to read the condition as one intended to place Pabon

under house arrest, and nothing in the record supports such a

reading.    More generally, associational restrictions are usually

read to exclude incidental encounters.       See Arciniega v. Freeman,

404 U.S. 4, 4 (1971); accord, e.g., United States v. Shultz, 733

F.3d 616, 622 (6th Cir. 2013); United States v. Soltero, 510 F.3d

858, 866 (9th Cir. 2007); United States v. Johnson, 446 F.3d 272,

281 (2d Cir. 2006); United States v. Loy, 237 F.3d 251, 269 (3d


                                  - 16 -
Cir. 2001); United States v. Paul, 274 F.3d 155, 166 (5th Cir.

2001).   Thus, we read the no-contact condition as only covering

intentional contact.

IV. Conclusion

             For the foregoing reasons, we AFFIRM the sentence as

construed.




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