United States Court of Appeals For the First Circuit

Case Number: 15-1337

Judge: Kermit Lipez

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney

Defendant's Attorney: Julie K. Connolly

Description: Appellant Edwin Cabrera-Rivera
("Cabrera") was charged in a two-count indictment with production
and possession of child pornography. In a deal with the
government, he agreed to plead guilty to the possession count --
an offense with no mandatory minimum sentence -- and the government
agreed to dismiss the production count -- an offense with a
mandatory fifteen-year term of imprisonment. As part of the deal,
the parties agreed to recommend a term of 108 months of
imprisonment. Cabrera also agreed to waive his right to appeal
any sentence consistent with the parties' recommendation. The
district court adopted the joint recommendation and sentenced
Cabrera to the 108-month term. The court also sentenced Cabrera
to a 144-month term of supervised release with multiple conditions.
Cabrera now challenges the length of his terms of
imprisonment and supervised release and several of the supervised
release conditions, contending that his appeal waiver was not made
knowingly and voluntarily, or, in the alternative, that enforcing
the waiver would result in a miscarriage of justice. After
considering these arguments, we dismiss Cabrera's appeal of his
terms of imprisonment and supervised release, as well as his
objections to most of the supervised release conditions. The one
exception is for a condition that, by its terms, prevents Cabrera
from having any contact with his minor children without approval
of a probation officer. Thus stated, the condition implicates


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Cabrera's fundamental constitutional interest in his relationship
with his children, and it was imposed without any explanation of
its necessity. We vacate that condition and direct the district
court to reconsider it on remand.
I.
Because Cabrera's conviction and sentence followed the
entry of a guilty plea, we draw the facts from the change-of-plea
colloquy and the uncontested portions of the amended Presentence
Investigation Report ("PSR"). See United States v. Vélez-Luciano,
814 F.3d 553, 556 (1st Cir. 2016). In 2012, Cabrera, then twenty
five years old, worked for an electrical contractor in
Barranquitas, Puerto Rico. Jane Doe ("Doe"), a sixteen-year-old
female, lived not far from Cabrera's place of work. At some point
during that year, Cabrera and Doe began spending time together.
Although the parties strenuously disagree about the nature of
Cabrera and Doe's relationship -- a matter we discuss in more
detail below -- they do not dispute that Cabrera encouraged Doe to
take sexually explicit photos of herself with a cellphone and send
them to him.
In January 2013, Department of Homeland Security agents
received information that Cabrera had engaged in sexually explicit
communications with Doe. The agents subsequently interviewed Doe
and learned that Cabrera had asked Doe to send him approximately
fifty-eight sexually explicit photos of herself. The agents


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interviewed Cabrera, who admitted that he had requested the photos.
The government then lawfully searched two cellphones owned by
Cabrera and found sexually explicit photos of Doe.
Cabrera subsequently was indicted on one count of
producing child pornography, in violation of 18 U.S.C. § 2251(a),
and one count of possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B). Cabrera and the government agreed that he
would plead guilty to the possession count in exchange for
dismissal of the production count. The plea agreement included a
joint recommendation that Cabrera receive a 108-month term of
imprisonment, but it included no recommendations regarding the
duration or conditions of Cabrera's supervised release term. Under
a section titled "Maximum Penalties," the agreement stated that
Cabrera faced a prison term of no more than ten years and also
noted -- incorrectly, it turned out -- that Cabrera was subject to
a supervised release term of no more than three years. The plea
agreement also included a "Waiver of Appeal" provision, in which
Cabrera gave up his right to appeal his conviction and sentence if
the sentence imposed was consistent with the parties'
recommendation.
At a change-of-plea hearing before a magistrate judge,
the government reviewed the terms of the plea agreement, all of
which Cabrera said he understood. During the colloquy, however,
the court questioned the provision stating that Cabrera's term of


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supervised release would be "not more than three (3) years." After
research by the prosecutor and defense counsel -- who looked up
the relevant statutes on their cellphones -- all agreed that,
pursuant to 18 U.S.C. § 3583(k), Cabrera faced a term of supervised
release of "not less than 5 [years], or life."1 The magistrate
judge gave Cabrera and his counsel a moment to confer about the
change, and the court then told Cabrera:
Okay, Mr. Cabrera, that’s what the law says. There is nothing your lawyer can do about it. I just need to make sure that you understand a possible maximum sentence and part of the maximum sentence could be a term of supervised release of up to life. Do you understand that? Cabrera replied, "Yes."
After advising Cabrera that the sentencing judge would
have considerable discretion in determining his sentence, the
magistrate judge went on to explain the waiver of appeal provision:
"your plea agreement contains a waiver of appeal in which you give
up your right to appeal both the judgment and the sentence if the
court accepts your plea agreement and sentences you according to
its terms, conditions and recommendations. Do you know that?"
Again, Cabrera responded, "Yes."
Upon completing the change-of-plea colloquy, the
magistrate judge found that Cabrera was competent to plead guilty,
1 During the change-of-plea hearing, this language, without our emphasis added, was handwritten as a correction on the plea agreement, and the change appears to be initialed by Cabrera.


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he was aware of the nature of the charged conduct and the impact
of pleading guilty, and his plea was knowing and voluntary. Hence,
the magistrate judge recommended that the district court accept
Cabrera's plea.
In its initial PSR, the Probation Office recommended a
pair of two-point enhancements not contemplated by the plea
agreement -- one for conduct involving the commission of a sexual
act or sexual contact, pursuant to U.S.S.G. § 2G2.1(b)(2)(A), and
one for the use of a computer, pursuant to U.S.S.G.
§ 2G2.1(b)(6)(B). Cabrera objected to the enhancement for sexual
contact, and an amended PSR was issued that omitted it. The
amended PSR determined Cabrera's guideline sentencing range
("GSR") to be 108-120 months, based on a total offense level of 31
and a Criminal History Category ("CHC") of I. The amended PSR
also recommended fifteen special conditions of supervised release.
Cabrera did not object to any of them.
At sentencing in February 2015, defense counsel agreed
with the guidelines calculation set out in the amended PSR and
informed the court that she had discussed the report with Cabrera.
After hearing from Cabrera, Doe, and Doe's mother, the court
explained the factors specified by 18 U.S.C. § 3553(a) that it had
considered,2 and it concluded as follows:
2 The court stated that it had considered the following factors: (1) Cabrera's age and tenth-grade education; (2) that he


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I hope not to be committing a mistake here. But at this time I will go with the recommendation of the government within the plea agreement. I find that still 9 years is a significant period of time and I hope that you use the same to continue reflecting on what you did. For you to realize that it doesn't matter whether the woman is the age of consent but you are not to engage in the type of actions that you engage. You are not to take advantage of persons with learning disabilities, because that is still another enhancement.

Regarding Cabrera's supervised release term, the court stated:
[T]he period of supervised release will be a significant one. In essence it will get to a point where if you do it right, if you restructure your life, if you don't give the Probation Officer any reason to believe that you are engaging in any similar action or in any other type of illegal action they will place you in minimal supervision. But if you set a different course in life, then they will be able to act.

Accordingly, the court sentenced Cabrera to a 108-month term of
imprisonment and a 144-month term of supervised release. Then,
without further explanation, the court imposed virtually all of
the supervised release conditions included in the amended PSR,
along with a few others. The court also reminded Cabrera that,
because he had "stipulated" to the sentence imposed, the waiver of
was in a long-term relationship and has two young children; (3) his status as a first-time offender; (4) his use of alcohol; (5) his stable employment and good conduct while at work; (6) letters of support from relatives, in-laws, and neighbors; (7) that he knew the victim was a minor; (8) that he had been in contact with the victim since 2012 and knew she was receiving psychological therapy; (9) that he taught the victim how to send the sexually explicit images; (10) that he admitted showing the images to his co-workers and that a co-worker had told him the images could lead to trouble; and (11) that he severely injured the victim's brother during a fight with her relatives.


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appeal provision in the plea agreement "has been triggered."
Cabrera timely appealed.
II.
Cabrera seeks review of his sentence on two grounds.
First, he argues that his appeal waiver should not be enforced
because it was not made knowingly and voluntarily. Second, he
argues that, even if the appeal waiver is valid, we should
disregard it and vacate his sentence and six conditions of
supervised release to prevent a miscarriage of justice.
To evaluate the enforceability of a defendant's waiver
of appeal, we consider three questions: (1) was the waiver's scope
clearly delineated? (2) did the district court specifically
inquire about the waiver of appellate rights? and (3) would denial
of those rights constitute a miscarriage of justice? See United
States v. Del Valle-Cruz, 785 F.3d 48, 54 (1st Cir. 2015) (citing
United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001)). The
first two prongs of what we have dubbed "the Teeter test" are
designed to ensure that "the defendant freely and intelligently
agreed to waive [his] right to appeal." Id. (quoting Teeter, 257
F.3d at 24) (alteration in original). "In examining whether the
defendant knowingly and voluntarily waived his appellate rights,
the text of the written plea agreement and the change-of-plea
colloquy are of critical importance." Sotirion v. United States,
617 F.3d 27, 33 (1st Cir. 2010). But, even if the waiver is


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knowing and voluntary, we retain discretion to disregard that
provision if enforcing it would result in a "miscarriage of
justice." Teeter, 257 F.3d at 25.
A. Knowing and Voluntary
The Waiver of Appeal provision in Cabrera's plea
agreement states that "[t]he Defendant knowingly and voluntarily
waives the right to appeal the judgment and sentence in this case,
provided that the defendant is sentenced in accordance with the
terms and conditions set forth in the Sentence Recommendation
provisions of this Plea Agreement." The "Sentence Recommendation"
provision states, in relevant part: "The parties agree to recommend
a term of imprisonment of one hundred and eight (108) months,
should the defendant be a CHC of I, II or III."
Cabrera was sentenced to the specified 108-month term,
and both the magistrate judge and district court reviewed the
waiver with him. Hence, the government argues, this clearly stated
appellate waiver was plainly triggered. Cabrera, however, asserts
that he understood the agreement differently. In his view, "108
months would be the upper limit of any possible total sentence he
might receive, not the time he had actually agreed to serve in
prison." (Emphasis added.) That is, Cabrera maintains that the
combined period of incarceration and supervised release comprise
his "sentence," and the waiver of appeal is thus inoperative
because his total sentence -- which included 144 months of


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supervised release -- exceeded the agreed-upon 108 months. Cabrera
premises this argument on well-established First Circuit precedent
holding that the word "sentence" in a plea agreement "encompasses
every component of the sentence," including imprisonment,
supervised release, and any attendant conditions. United States
v. Santiago, 769 F.3d 1, 7 (1st Cir. 2014).
There are two related problems with this argument.
First, the Sentence Recommendation provision explicitly provided
for "a term of imprisonment of one hundred and eight (108) months,"
not a total "sentence" of that length. (Emphasis added; other
emphasis deleted.) Second, our case law establishes that a
defendant's waiver of the right to appeal his sentence covers the
period of supervised release and any attendant conditions
regardless of whether those post-incarceration penalties are
expressly referenced in the plea agreement. See id.; see also,
e.g., Vélez-Luciano, 814 F.3d at 557-58; United States v. Rojas,
780 F.3d 68, 69 (1st Cir. 2015).
That is not to say, however, that Cabrera's argument is
unreasonable. If, under our precedent, a "sentence" consists of
both incarceration and supervised release, one may logically argue
that a defendant who receives a term of supervised release that is
not included in a "Sentence Recommendation" has not been "sentenced
in accordance with the terms and conditions set forth in the
Sentence Recommendation provisions of [his] plea agreement." But


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even if that argument could fairly be raised under our caselaw
where a term of supervised release is entirely discretionary,3 it
has no traction here. As the magistrate judge clarified at
Cabrera's change-of-plea hearing, Cabrera was subject to a
mandatory minimum term of supervised release of five years. The
plea agreement, as amended, specified this statutory term in the
provision labeled "Maximum Penalties." Hence, in moving forward
with the plea agreement, Cabrera necessarily agreed to both 108
months' imprisonment and a minimum of five years of supervised
3 Where the decision to impose supervised release is left to the district court's discretion, and the parties recommend only a term of imprisonment, a defendant could plausibly contend that, under ordinary contract principles, a sentence that includes a term of supervised release is not "in accordance with" a "Sentence Recommendation" proposing only a term of imprisonment. However, where a statute sets a mandatory minimum term of supervised release, that statutory minimum is unavoidably incorporated within a plea agreement whether or not expressly stated in the Sentence Recommendation. Our precedent does not recognize this discretionary vs. mandatory difference, and the broad language in our cases poses a possible barrier to an appellant seeking to rely on such a distinction. However, as Cabrera points out, the plea agreements in a number of our principal cases on appellate sentencing waivers specified that the defendant faced a mandatory minimum five-year term of supervised release. Hence, we would have had no occasion in those cases to confront any possible differences between discretionary and mandatory terms of supervised release. See Vélez-Luciano, 814 F.3d at 559 (noting five-year mandatory minimum term of supervised release); Rojas, No. 3:13-cr-00149-JAG-MEL, Docket No. 34, at 2 (filed Aug. 6, 2013) (plea agreement specifying "not less than five (5) years"); Santiago, No. 3:12-cr-00260-DRD, Docket No. 31, at 2 (filed Aug. 31, 2012) (same: "not less than 5 years"); Del Valle-Cruz, No. 3:12-cr-00262-JAF, Docket No. 34, at 2 (filed Aug. 6, 2012) (same: "not less than 5 years").


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release. See, e.g., Vélez-Luciano, 814 F.3d at 559 (observing
that "the plea agreement -- which [the defendant] signed and
initialed -- noted that supervised release of at least five years
was part of the maximum sentence").4
Cabrera resists this reasoning by challenging the
adequacy of the plea colloquy concerning his exposure to a mandated
term of supervised release. He contends that "the record is
unclear about whether [he] fully understood the consequences of
[his] guilty plea," noting that even his attorney was confused.
To be sure, as described above, there was initial uncertainty about
whether the applicable term of supervised release was capped at
three years or would be at least five years. Once the court and
counsel determined that the three-year maximum stated in the plea
agreement was wrong, the only explanation of the error was given
to Cabrera by his attorney off the record. The magistrate judge
4 The dissent states that we have incorrectly suggested that "a waiver of appeal may not extend to a term of supervised release where that term is left to the court's discretion by the plea agreement." Dissent, at n.2. Yet, the term (or duration) of supervised release is a statutory element of a sentence for which the parties may, and sometimes do, negotiate. Accordingly, contract principles reasonably could be applied to such negotiated terms. By contrast, the conditions of supervised release are neither governed by statute nor included in the Sentence Recommendation provision of plea agreements. We have no need to consider here the impact on challenges to conditions of release if a waiver of appeal is determined not to bar appeal of the supervised release term.


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then told Cabrera that "[t]here is nothing your lawyer can do about
it."
If this were the entire colloquy, we would be concerned
about what Cabrera's attorney told him and whether Cabrera
understood that he was giving up his right to appeal a "sentence"
that would include at least five years of supervised release in
addition to the 108-month term of imprisonment.5 However, the
magistrate judge went on to expressly advise Cabrera that his
maximum sentence could include "a term of supervised release of up
to life." Asked if he understood that possibility, Cabrera replied
"Yes." Subsequently, the magistrate judge explained the waiver of
appeal provision, again eliciting a "Yes" response after asking
Cabrera if he knew that his "plea agreement contains a waiver of
appeal in which you give up your right to appeal both the judgment
and the sentence if the court accepts your plea agreement and
sentences you according to its terms, conditions and
recommendations."
5 Although certain of Cabrera's contentions in challenging the knowing and voluntary nature of his waiver of appeal appear to implicate his acceptance of the plea agreement itself, Cabrera emphatically disclaims any intention to challenge the agreement as a whole. Absent the plea deal, Cabrera could have faced a fifteenyear mandatory minimum sentence on the count charging him with producing child pornography. See 18 U.S.C. § 2251(e). He asserts that his arguments are focused solely on the scope of the appellate waiver and whether he knowingly waived his right to appeal a "sentence" that exceeded the recommended 108 months' imprisonment.


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Under our precedent on the scope of sentencing appeal
waivers, this colloquy was sufficient to satisfy Teeter's inquiry
requirement. The magistrate judge's explanation of the appeal
waiver's consequences was "specific enough to confirm the
defendant's understanding of the waiver and [his] acquiescence in
the relinquishment of rights that it betokens." Teeter, 257 F.3d
at 24 n.7; see also Sotirion, 617 F.3d at 35 (upholding appellate
waiver as knowing and voluntary where, inter alia, the court "did
not fail to address the waiver provision entirely, nor did he
contradict the terms of the written waiver"). Moreover, if any
uncertainty remained, it was dispelled by the PSR, which reported
both the recommended 108-month term of imprisonment, and the five
year statutory minimum term of supervised release. Indeed, Cabrera
specifically advocated for a 108-month term of imprisonment in his
objections to the PSR, and he recognized in the same document that
he would be subject to a minimum five-year term of supervised
release following the period of incarceration and that he would
face restrictions on contact with his children.
Accordingly, Cabrera may challenge his sentence,
including the term and conditions of supervised release, only if
he can show that his case falls within the rare exception carved
out by the final prong of the Teeter test: that enforcement of the
waiver would work a miscarriage of justice.



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B. Miscarriage of Justice
In Teeter, we cautioned that, because appellate waivers
"are made before any manifestation of sentencing error emerges,
appellate courts must remain free to grant relief from them in
egregious cases." 257 F.3d at 25. Appellate waivers are "meant
to bring finality to proceedings conducted in the ordinary course,"
but they are not intended to leave defendants "totally exposed to
future vagaries (however harsh, unfair, or unforeseeable)." Id.
Therefore, we held that "if denying a right of appeal would work
a miscarriage of justice, the appellate court, in its sound
discretion, may refuse to honor the waiver." Id.
Still, the miscarriage-of-justice exception is to be
applied "sparingly and without undue generosity." Sotirion, 617
F.3d at 36 (quoting Teeter, 257 F.3d at 26); see also Del Valle
Cruz, 785 F.3d at 56 (observing that the exception is "often sought
but seldom meted out" (quoting Santiago, 769 F.3d at 10)); United
States v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006) (noting
that the miscarriage-of-justice standard "requires a strong
showing of innocence, unfairness, or the like"); Teeter, 257 F.3d
at 25 n.10 (stating that "a waiver should [not] be construed to
bar an appeal if the trial court imposes a sentence exceeding the
maximum penalty permitted by law or one that violates a material
term of the plea agreement" (citations omitted)). Thus, "[t]o
successfully invoke the miscarriage of justice exception, a


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'garden-variety error will not suffice,' rather there must be, 'at
a bare minimum, an increment of error more glaring than routine
reversible error.'" Santiago, 769 F.3d at 8 (quoting United
States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013)). In making
that assessment, "we consider, among other things, the clarity of
the alleged error, its character and gravity, its impact on the
defendant, any possible prejudice to the government, and the extent
to which the defendant acquiesced in the result." Gil-Quezada,
445 F.3d at 37; see also United States v. Marte-de la Cruz, 876
F.3d 370, 374 (1st Cir. 2017) (same).
1. Terms of Imprisonment and Supervised Release
Cabrera makes a threshold argument that he should not be
sentenced as a "typical sexual offender" because his relationship
with Doe was "consensual and voluntary." Under Puerto Rico law,
a consensual sexual relationship with Doe would have been lawful.
Moreover, Cabrera emphasizes that there is no evidence of his
"predatory exploitation" of Doe. Indeed, although the government
maintains that Cabrera's "conduct was serious and involved the
sexual exploitation of a minor," including physical sexual conduct
(which Cabrera denies), it concedes that Doe "willingly provided
[Cabrera] with the . . . images." In short, Cabrera argues that
his within-guidelines sentence is unduly harsh given his specific
conduct -- what he calls "consensual sexting" -- and thus enforcing
the waiver of appeal would effect a miscarriage of justice.


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We disagree. A claim that an otherwise lawful, within
guidelines sentence is excessive asserts just the sort of "garden
variety" error that does not surmount the miscarriage-of-justice
hurdle. See, e.g., Santiago, 769 F.3d at 8. Moreover, Cabrera
concedes, as he must, that the terms of the plea agreement required
the parties to jointly recommend a 108-month term of imprisonment
-- a recommendation that Cabrera in fact made, both in his
sentencing memorandum and at sentencing, and which the district
court explicitly adopted. Cabrera can hardly claim that barring
a challenge to his term of imprisonment amounts to a miscarriage
of justice when he received the precise term for which he
advocated.
Cabrera's objection to his term of supervised release
likewise targets the sort of garden-variety error that need not be
reviewed on appeal to avoid a miscarriage of justice. He asserts,
with virtually no elaboration, that the district court gave an
inadequate justification for picking the specific term that it
did, but he does not explain why a twelve-year term is improper.
Although the district court's remarks were brief, the court did
reveal why it chose "a significant" period of time:
[I]f you do it right, if you restructure your life, if you don’t give the Probation Officer any reason to believe that you are engaging in any similar action or in any other type of illegal action they will place you in minimal supervision. But if you set a different course in life, then they will be able to act.



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Moreover, lengthy terms of supervised release for sexual
misconduct crimes are not uncommon. See, e.g., Vélez-Luciano, 814
F.3d at 558 (fifteen years); Del Valle-Cruz, 785 F.3d at 53 (seven
years); Rojas, 780 F.3d at 68 (ten years); Santiago, 769 F.3d at
6 (ten years); United States v. Morales-Cruz, 712 F.3d 71, 72 (1st
Cir. 2013) (ten years); United States v. Perazza-Mercado, 553 F.3d
65, 66 (1st Cir. 2009) (fifteen years). Hence, enforcing the
appellate waiver for Cabrera's contentions that the court
inadequately explained the 144-month term, and should have
selected a shorter term, does not result in a miscarriage of
justice.
2. Supervised Release Conditions
We thus are left with only Cabrera's challenge to the
following six of the twenty-three imposed conditions of supervised
release6:
[1] The defendant shall not associate with codefendants, individuals with whom . . . defendant has previously[] traded illicit[] material, a family member or friend under Criminal Justice supervision for a sex crime or 6 The district court did not number the conditions of supervised release, and we have added numbers here only for ease of reference. We note that, in some instances, the court divided into several separate conditions a single, multi-part recommendation contained in the PSR. Hence, the fifteen numbered conditions listed in the PSR roughly correlate with twenty of the conditions articulated by the court at the sentencing hearing. The additional three conditions prohibited Cabrera from committing another crime or unlawfully possessing controlled substances (requirements noted in the PSR separately from the recommended conditions), and required him to "participate in an approved inpatient or out-patient mental health treatment program."


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identified past victim unless in a therapeutic setting and with the prior approval of the Probation Officer.

[2] The defendant shall have no personal contact with the victim and or minors under the age of 18 through mail, letters, telephone communication, audio or visual computer or electronic devices, visit social networking sights [sic] or third parties unless approved in advance by the Probation Officer. The only exception in this condition relies on the incidental contact in normal life with minors and those that relate to his relatives.

[3] The defendant shall not reside, be in the company, date or socialize by himself with a child or children below the age of 18 unless previously approved by the Probation Officer and after a third party risk has been duly assigned.

[4] The defendant shall not engage in a specified occupation, business or profession bearing a reasonable relationship to the conduct constituting the offense. Specifically the defendant shall not work with children under the age of 18 or hold a job that gives him authority over potential victims, gives him access to vulnerable populations or places him in settings in school or playgrounds. Any employment must be approved in advance by the Probation Officer who will make an assessment of the job placement and set employment restrictions if warranted based on the sex offender management procedure manual.

[5] The defendant shall not participate in any volunteer activity or be involved in any children or youth organization or any group that would bring him in close contact with a child or children under the age of 18 unless prior approval of the Probation Officer.

[6] The defendant shall stay at his approved residence every night and not sleep or stay overnight anywhere else without prior approval from the probation office.

The government concedes that the court did not explain
its reasons for imposing these six conditions. Indeed, based on
our review of the sentencing transcript, the court provided no


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specific explanation for any of the imposed conditions of
supervised release, and instead merely read aloud the list of
conditions largely as proposed in the PSR. Nevertheless, the
government contends that the rationale for the conditions is
apparent from the record. Moreover, the government presses its
argument that Cabrera's appeal waiver should operate to bar his
challenge to all of these condition. Hence, we look to the record
to determine whether the court's reasoning can be inferred as to
each condition, keeping in mind that Cabrera's appeal waiver bars
appellate review of all but the most egregiously unjustified
conditions. See, e.g., Del Valle–Cruz, 785 F.3d at 55-56.
As to the first condition -- which restricts Cabrera's
contact with "codefendants, individuals with whom . . . [Cabrera]
has previously[] traded illicit[] material," persons "under
Criminal Justice supervision for a sex crime," or Doe -- Cabrera
makes only a perfunctory attempt to explain why upholding it would
result in a miscarriage of justice, claiming that this condition
should not apply to him because he never engaged in "illicit
trading" of child pornography, even if he did show the illicit
pictures to his coworkers. Arguing that a boilerplate condition
does not apply precisely to his conduct does not explain why
enforcing the condition would amount to a miscarriage of justice,
especially when unlawfully displaying images to others is conduct
that Cabrera acknowledges doing.


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As to the second, fourth, and fifth conditions -
restricting Cabrera's communication, employment, and volunteer
activities with minors, respectively -- we find no error sufficient
to support a miscarriage-of-justice finding. As we explained in
United States v. Pabon, associational restrictions "operate to
protect the public, especially children, from the defendant, as
well as to promote the defendant's rehabilitation." 819 F.3d 26,
31 (1st Cir. 2016) (citation omitted). And, although the record
supporting these conditions is limited, Cabrera nevertheless pled
guilty to conduct involving the sexual exploitation of a minor,
justifying at least some degree of associational restriction.
Moreover, none of these conditions imposes "an outright ban on
association with minors, but only curtail association, such as by
requiring pre-approval by the probation officer or another
authority." Id. at 31-32. With the opportunity for relief from
the restrictions, and the additional exception made in condition
two for Cabrera's communications with family members, these
conditions are sufficiently circumscribed such that enforcing the
appellate waiver would not constitute a miscarriage of justice.
See id. at 32 ("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 also United
States v. Fey, 834 F.3d 1, 6 (1st Cir. 2016) (upholding a


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condition, imposed without "express explanation," requiring the
defendant to "seek approval from probation before accepting a job
or volunteer activity that would bring him into direct contact
with minors"); Del Valle-Cruz, 785 F.3d at 57 ("Although we are
troubled by the imposition of conditions that would prevent [the
defendant] from engaging in activities such as volunteering at his
son's school, . . . we cannot say with assurance that their
imposition would result in a miscarriage of justice.").
As to the sixth condition -- which requires Cabrera to
"stay at his approved residence every night" unless he has "prior
approval from the probation office" -- we similarly reject the
miscarriage-of-justice contention. Although the court erred by
providing no reasoning for its decision, "we cannot say it was 'an
increment of error more glaring than routine reversible error.'"
Del Valle-Cruz, 785 F.3d at 56 (quoting Santiago, 769 F.3d at 8).
And, as with the associational restriction discussed above,
Cabrera may request exceptions to this condition from his probation
officer. See United States v. DaSilva, 844 F.3d 8, 14 (1st Cir.
2016) ("[G]iving the probation officer some authority to make
exceptions as warranted is generally seen as a benefit of such
orders in that it allows for flexibility and permits personal
circumstances to be dealt with as they arise.").
Cabrera's sole remaining challenge is to the third
condition of supervised release. To the extent that this condition


- 23 -
limits his ability to "reside, be in the company, date or socialize
by himself with" minors generally, we find no miscarriage of
justice for the same reasons we have upheld the appeal waiver with
respect to the other associational conditions. Cabrera argues,
however, that this condition is overbroad because, unlike
condition two, which makes an exception for communication with
family members, condition three makes no exception for Cabrera's
own children -- a son and a daughter who will still be minors when
Cabrera completes his 108-month sentence. Cabrera contends that
this condition impermissibly restricts his constitutional right to
raise his children and, particularly because the district court
gave no reasons for imposing it, barring an appellate challenge
would effect a miscarriage of justice.7
We agree that, in this one respect, Cabrera meets the
stringent criteria for relief under the miscarriage-of-justice
exception. In Del Valle-Cruz, we stated that a waiver of appeal
may be disregarded "when an error of significant or constitutional
dimension is clear, and where there is 'little prejudice to the
7 Our dissenting colleague implies that, instead of deciding the miscarriage-of-justice question, we should remand for clarification on whether the district court meant to include Cabrera's own children within the scope of condition three. In our view, there is no lack of clarity in the condition as announced by the court. In stark contrast to condition two, condition three contains no exception for Cabrera's children. Given that the condition as imposed clearly restricts a fundamental liberty interest, see infra, we can see no justification for avoiding the miscarriage-of-justice inquiry.


- 24 -
government should we take up the merits of [the defendant's]
appeal.'" 785 F.3d at 56 (quoting Santiago, 769 F.3d at 10)
(alteration in original). In particular, we concluded that we
could look beyond the defendant's appellate waiver because the
district court had provided no justification for two conditions
that burdened the defendant's "fundamental constitutional liberty
interest" in his relationship with his child. Id. at 57; see also
Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (recognizing that
"the relationship between parent and child is constitutionally
protected"); Vélez-Luciano, 814 F.3d at 563 & n.12 (noting the
"substantial constitutional questions" concerning restrictions on
the defendant's "relationship with his minor children"); Del
Valle-Cruz, 785 F.3d at 58 (stating that "[t]he district court is
required to provide a reasoned and case-specific explanation for
the conditions it imposes" (internal quotation marks omitted));
Perazza-Mercado, 553 F.3d at 75 (noting that "courts of appeals
have consistently required district courts to set forth factual
findings to justify special probation conditions" (quoting United
States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).
So too here. As in Del Valle-Cruz, the error is
manifest: the district court imposed condition three, restricting
Cabrera's relationship with his children, without any explanation,
despite the clear precedent holding that "a district court is
required to provide a reasoned and case-specific explanation for


- 25 -
the sentence it imposes." United States v. Gilman, 478 F.3d 440,
446 (1st Cir. 2007); cf. United States v. Mercado, 777 F.3d 532,
539 (1st Cir. 2015) (rejecting challenge to conditions restricting
defendant's interactions with minors where the district court
detailed its reasons, including "to mitigate the risk of this
particular defendant reoffending," and also linked "the
rehabilitative and deterrent features of the . . . conditions to
the defendant's lengthy criminal history and his persistent
failure to comply with the terms of his pretrial release" (emphasis
added)).8 In addition, we discern no burden on the government from
merits review of Cabrera's challenge to the condition.
Although in some circumstances there would be reason to
distinguish between a defendant's son and daughter in evaluating
the asserted injustice of enforcing an appellate waiver for the
associational restriction imposed by condition three, see, e.g.,
Pabon, 819 F.3d at 33 n.6; Vélez-Luciano, 814 F.3d at 563-64, the
criminal activity at issue here -- a consensual exchange of
8 In response to an inquiry from the panel, the parties obtained information from the United States Probation Office for the District of Puerto Rico on the use of this condition in that jurisdiction. Probation Officer Charlette Agostini reported that "[t]his special condition is imposed in cases involving sex offenses against minors." She stated that "[t]he courts routinely review each case individually and determine which conditions reasonably apply given the particularity of each case." An onthe-record explanation of the court's reasoning is necessary, however, to confirm that such an assessment took place and to "enable[] appellate review." Perazza-Mercado, 553 F.3d at 75.


- 26 -
sexually explicit images with a non-family member who is of age to
consent under Puerto Rico law -- does not indicate a risk of harm
to either of Cabrera's minor children. Nor does Cabrera's personal
history otherwise present such a risk; his amended PSR reports
stable family relationships and no history of drug use or alcohol
related problems. Absent countervailing considerations -- and the
record before us reveals none -- the court's failure to give any
rationale for depriving Cabrera of this constitutional liberty
interest leaves "no doubt that enforcement of the waiver would be
a miscarriage of justice." Del Valle-Cruz, 785 F.3d at 57; see
also id. (noting that a condition imposed without explanation "does
not automatically result in a miscarriage of justice," but the
standard may be met "where, as here, the error is of this
constitutional dimension").
The dissent contends that our decision protects the
defendant's rights by "ignoring the equal rights of [Cabrera's]
wife and children." To the contrary, we agree that the wellbeing
of Cabrera's family members is a relevant consideration for the
district court in evaluating whether to limit Cabrera's
constitutional right to associate with his children. We hold only
that a miscarriage of justice would result if we denied Cabrera an
opportunity to challenge that significant, yet unexplained,
limitation -- and that, as discussed infra, the condition cannot
be upheld absent explanation.


- 27 -
In arguing that the record reveals the district court's
rationale for condition three, our dissenting colleague points to
the court's "concern[] about the risk of illegal actions by the
defendant while on supervised release" and the court's warnings to
Cabrera not to repeat "the type of actions in which he engaged" or
to take retaliatory action against Doe's family. The court did
not, however, articulate concerns or warnings about Cabrera's
interactions with his children. Hence, the concerns it expressed
do not explain the constitutional limitation imposed by the
condition.
Nor is the court's rationale inferable from the record.
The dissent's detailed recounting of the defendant's activities
with Doe -- a female of consenting age, and not a family
member -- does not demonstrate a need to interfere with Cabrera's
constitutionally protected relationship with his own offspring.
The court did not reject out-of-hand the following depiction of
Cabrera's conduct, which was offered by defense counsel:
[W]e are not here to pass judgment on moral values. Nevertheless he was in a relationship, he began a relationship with this young woman. He was hiding that relationship from his wife. And he incurred in the acts that the Court has before her. But this is not one of these people who prays on young women for the purpose of committing sexual offenses. This is just one of those cases of misjudgment of what the law is in relation to relationships with older young people and younger adults.



- 28 -
The court itself expressly recognized the positive aspects of
Cabrera's background, noting that he "has had a stable relationship
for the past six years," is a first-time offender, maintained
stable employment, and had letters from relatives and neighbors
attesting to his positive character. Our point, simply put, is
that the district court's assessment of the circumstances, not
ours, determines the validity of condition three. And given the
facts as depicted by the court, the need for such a
constitutionally significant limitation is not apparent.
Recognizing the relevance of our decision in Del Valle
Cruz to this case, the dissent attempts to distinguish the facts
with an assertion that Cabrera was more of a danger to his son and
daughter than the defendant in Del Valle-Cruz was to his children.
As our discussion below reveals, the record before us does not
support that conclusion. Our colleague further suggests that
reliance on Del Valle-Cruz is inapt where a defendant is sentenced
for an actual sex offense rather than for failing to register as
a sex offender. Although that distinction is certainly relevant
when we consider a challenge to a condition restricting parental
rights, we have never taken such a categorical approach. Rather,
as reflected in the discussion of our caselaw in the next section,
our inquiry relies on case-by-case scrutiny of individual
circumstances.


- 29 -
Accordingly, we exercise our discretion to bypass the
appeal waiver with respect to condition three and proceed to the
merits of Cabrera's challenge.
C. Cabrera's Contact with His Children.
Cabrera's failure to object to condition three at
sentencing means our review is only for plain error. See Vélez
Luciano, 814 F.3d at 565. The government argues in a footnote,
however, that we should not afford Cabrera even plain error review,
contending that he has waived any arguments regarding his
conditions of supervised release by failing to frame his arguments
under that standard's familiar rubric. Specifically, the
government points to our recent opinion in Pabon, where we held
that a defendant's challenges to his conditions of supervised
release were waived "because he ha[d] not even attempted to meet
his four-part burden for forfeited claims" under plain error
review. Pabon, 819 F.3d at 33. Pabon, however, did not address
such claims in the context of an appellate waiver. See id. at 30
n.3 (noting that the government "expressly declined" to rely on
appeal waiver because it was "easier to resolve the appeal on the
merits"). More importantly, as we have recently indicated, our
circuit precedent is unclear as to "what distinction, if any,


- 30 -
exists between the miscarriage-of-justice and the plain-error
standards." Vélez-Luciano, 814 F.3d at 565 n.15 (emphasis added).9
Given this lack of clarity, we decline to find that Cabrera has
waived his challenge and review for plain error.10
9 We acknowledge the artificiality of deciding that a challenge to a supervised release condition is sufficiently persuasive to meet the miscarriage-of-justice standard, and then separately analyzing the merits of the challenge, when the arguments made for a miscarriage of justice are indistinguishable from the arguments made on the merits. Indeed, it is difficult to imagine any argument that could vault the exceptionally high hurdle imposed by the miscarriage-of-justice standard only to stumble on abuse-of-discretion or plain-error review. See Vélez-Luciano, 814 F.3d at 565 n.15 (finding that condition of supervised release amounted to both a miscarriage of justice and plain error). Regardless, our recent cases in this area follow this two-step approach. See Vélez-Luciano, 814 F.3d at 565 n.15; Del ValleCruz, 785 F.3d at 57 (deciding whether appeal waiver would work a miscarriage of justice before "proceed[ing] to consider the merits of the appeal" under abuse-of-discretion standard). Hence, we will do the same, leaving for another day the questions of whether a separate inquiry on the merits is necessary after finding a miscarriage of justice, and whether plain-error and miscarriageof-justice review are functional equivalents. 10 Notwithstanding our court's recognition of uncertainty about whether the plain error and miscarriage-of-justice standards fully overlap, and the importance of the right at stake here, the dissent takes the unreasonable position that Cabrera is not entitled to plain error review. In justifying that position, the dissent dismisses as irrelevant an important difference between this case and Pabon. In Pabon, we did not address the miscarriageof-justice standard, and the opinion does not describe the arguments, if any, that the defendant offered on that subject. By contrast, in presenting his miscarriage-of-justice argument, Cabrera has, in effect, argued each element of the plain error test, and we have addressed them. See United States v. GaraySierra, 885 F.3d 7, 12 (1st Cir. 2018) (describing the four elements of plain error as "error, plainness, prejudice to [him], and the threat of a miscarriage of justice" (quoting United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (alteration in original)).


- 31 -
None of our prior cases addressing conditions of
supervised release that restrict parental rights is a perfect match
for Cabrera's circumstances. As we shall describe, the defendants'
criminal activities differ considerably from case to case, and the
challenged conditions most often were imposed when the defendant
had failed to register as a sex offender rather than for the sexual
misconduct itself. The lapse in time between the sexual misconduct
and the imposition of the challenged conditions thus also varies.
Nonetheless, taken as a whole, our precedent provides relevant
guidance for the plain error inquiry here.
We begin by elaborating on our analysis in Del Valle
Cruz. As recounted above, we disregarded the defendant's waiver
of appeal because the unexplained imposition of conditions
"prohibiting [the defendant] from having personal contact with,
and living with, any minor child" constituted a miscarriage of
justice when applied to the defendant's own children. 785 F.3d at
52, 57-58. We then decided on the merits that the district court
had abused its discretion in imposing the conditions without
explanation. Id. at 57-64. In reaching that conclusion, we relied
heavily on the lack of a reasonable relationship between the
defendant's crime -- violation of the federal Sex Offender
Registration and Notification Act ("SORNA") -- and the ban on


- 32 -
interaction with his minor children. See id. at 59–62.11 We also
noted the absence of any record evidence that the presence of a
child in the home would create a risk of recidivism; the condition
was imposed eighteen years after the underlying sexual offense;
the defendant had committed no sexual or minor-based crimes during
those eighteen years; he had lived with his older children for six
years without incident; "his school and employment demonstrate[d]
increasing stability in recent years"; and "[t]he district court
provided no clue as to its reasoning." Id. We also held that the
authorization of exceptions for contact with the defendant's own
children, at the discretion of a probation officer, was
insufficient to overcome the underlying error. See id. at 63 ("We
. . . decline the government's invitation to punt by placing a
probation officer between parent and child.").12
11 SORNA defines "sex offender" as "an individual who was convicted of a sex offense," and provides, inter alia, that "[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 34 U.S.C. §§ 20911(1), 20913(a). 12 The dissent fails to adhere to this precedent in concluding that the district court, without explanation, can place a probation officer between Cabrera and his children. Under Del Valle-Cruz, such an intrusion into the parental relationship, absent explanation from the district court, is unsupportable. The case highlighted by the dissent, United States v. Mercado, 777 F.3d 532 (1st Cir. 2015), is not to the contrary. As we explained in rejecting the defendant's challenge to various conditions, including restricted contact with his children, the district court there "specifically linked the rehabilitative and deterrent features of the supervised release term and its conditions to the defendant's lengthy criminal history and his persistent failure to


- 33 -
Subsequently, in Vélez-Luciano, we faced a challenge to
release conditions restricting contact with minors by a defendant
who, like Cabrera, had pled guilty to possession of child
pornography and waived his right to appeal. See 815 F.3d at 557.
There, the record indicated the defendant had sexually abused two
unrelated female minors. See id. at 556-57. We concluded that
the miscarriage-of-justice standard would bar a challenge to the
condition insofar as it applied to the defendant's interactions
with his daughter, see id. at 563, noting, inter alia, that the
defendant had lived for a period of time "in the same house as one
of his minor victims," id. at 564; cf. Santiago, 769 F.3d at 6 &
n.3, 9 (rejecting miscarriage-of-justice claim for a condition
barring contact with minor children, including defendant's own,
where defendant had molested the daughter of his former girlfriend
while living with the girlfriend and her daughter). However, we
also noted in dictum in Vélez-Luciano that applying the condition
to the defendant's minor son raises "substantial constitutional
comply with the terms of his pretrial release." Id. at 539. In this case, however, the court erroneously gave no explanation for condition three. Moreover, the panel in Mercado noted that the defendant had neither lived with, nor supported, his two minor children for some years. Id. at 539 n.3. By contrast, the record indicates that Cabrera's nuclear family was intact. Indeed, according to defense counsel, Cabrera's wife brought their second child -- born after his arrest -- to the prison to see him.


- 34 -
questions" because the record lacked any evidence that the
defendant was a risk to male minors. 814 F.3d at 564.13
More recently, in Pabon, we rejected a defendant's
challenge "that the district court failed to make sufficient
findings justifying the restrictions on association with his minor
daughter." 819 F.3d at 34. The defendant, who had previously
been convicted of sexually abusing the fourteen-year-old daughter
of his then-girlfriend, had been sentenced in the case on appeal
for failing to register as a sex offender as required by SORNA.
Id. at 29. Although we acknowledged that Del Valle-Cruz had "held
that an infringement of a parent's right to associate with his
child requires 'a greater justification,'" we concluded that,
given the facts of the case, neither the restriction itself nor
the district court's failure to more fully explain the condition,
was "clear or obvious error." Id. at 34 (quoting Del Valle–Cruz,
785 F.3d at 62). Among other points, we noted that, "unlike Del
Valle-Cruz, [Pabon] has a copious criminal history and received a
13 In Vélez-Luciano, the defendant did not raise the constitutional implications of restricting contact with his children until oral argument, and we therefore deemed the argument waived. 814 F.3d at 563. We nonetheless discussed the issue at some length, and "highlight[ed]" the constitutional issue triggered by application of the condition to the defendant's son, "so that the Probation Officer does not operate on a blank legal canvas should [the defendant] request, after his release from prison . . . , the Probation Officer to exercise the authority, delegated by the District Judge, to make exceptions from this condition." Id. at 564.


- 35 -
clear explanation for the conditions imposed." Id. at 32.14
However, we also acknowledged our observation in Vélez-Luciano, in
dictum, that "substantial constitutional questions" are presented
when a defendant convicted for sexual misconduct involving minor
girls is restricted from associating with his son. Id. at 34 n.6.
In Fey, another SORNA failure-to-register case, we found
plain error where the district court imposed, without explanation,
a supervised release condition similar to the one Cabrera
challenges here. 834 F.3d at 3. Specifically, we noted that the
challenged condition, "in addition to having a weak temporal
connection with Fey's sex offense," was overbroad, "prohibit[ing]
Fey from having unapproved 'direct or indirect contact' with all
children: male children, female children, and children of all ages,
14 Pabon had preserved some of his challenges to the associational conditions, and we reviewed those for abuse-ofdiscretion. See 819 F.3d at 30. Other challenges, including to restrictions on contact with his daughter, were unpreserved and subject only to plain-error review. See id. at 33. We held, with respect to both categories, that the court's explanation for imposing the conditions was adequate. We described the court's rationales, in pertinent part, as follows: The court found that the conditions were necessary in order to keep the public safe, and especially to protect minors 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.

819 F.3d at 33.


- 36 -
whether or not they are members of Fey's family." Id. Because
the "record reveal[ed] no instances in which Fey committed a sex
offense of any kind against boys, against pre-pubescent children,
or against members of his family," we vacated the condition and
remanded for resentencing "limited to a reexamination of that
condition." Id. at 5, 8.
We can readily draw from this precedent the conclusion
that condition three's unexplained prohibition on Cabrera's
contact with his son clears the plain error hurdle. As reflected
in our discussion above, we repeatedly have expressed concern about
conditions that limit contact with male children when the
defendant's offense involved no inappropriate conduct with males.
Although the cited decisions all were issued after Cabrera's
sentencing in February 2015, both the parental liberty interest at
stake and the requirement to justify conditions of supervised
release were well established by that time. See Quilloin, 434
U.S. at 255 (noting, in 1978, the importance of the relationship
between parent and child); Perazza-Mercado, 553 F.3d at 75 (noting,
in 2009, that we had "consistently required district courts to set
forth factual findings" to justify special conditions (quoting
Warren, 186 F.3d at 366)). We thus have no difficulty concluding
that the summary prohibition on Cabrera's contact with his son,
imposed "without apparent grounding in the record," is a plain,
prejudicial error of such consequence that this aspect of Cabrera's


- 37 -
sentencing "impair[s] the 'fairness, integrity, or public
reputation of the judicial proceedings.'" Fey, 834 F.3d at 5
(quoting Perazza–Mercado, 553 F.3d at 79).
The impropriety of the summary prohibition on contact
between Cabrera and his daughter, subject to Probation Office
approval, is arguably less obvious. Cabrera's criminal activity
did involve a young female. In addition, the sentencing condition
he challenges was imposed for the sexual misconduct crime itself
and not -- as in most of the cases above -- for a SORNA crime that
occurred years after the sexual misconduct. On the facts before
us, however, the unexplained bar against Cabrera's contact with
his daughter is also troubling. Unlike the defendant's unlawful
activity in Pabon, where we rejected a claim of plain error,
Cabrera's crime did not involve a girl below the applicable age of
consent and did not take place at a domestic partner's home. See
819 F.3d at 32. To the contrary -- and without minimizing or
condoning Cabrera's criminal conduct in any way -- any physical
relationship he had with Doe would not itself have been unlawful.
Moreover, unlike the defendant in Pabon -- who had "violent
inclinations," 819 F.3d at 33 -- Cabrera's PSR depicts him as a
stable and supportive father and domestic partner.15 Hence, as in
15 The dissent suggests that we have provided a false contrast with respect to violence, pointing to the fight between Cabrera and Doe's brother that left the brother severely injured. The facts surrounding that encounter are disputed, with Cabrera


- 38 -
Fey, where we vacated the associational condition, there is no
basis in the record for concluding that Cabrera "is a danger to
[his] children," irrespective of gender. 834 F.3d at 5.16
As we explained in both Del Valle-Cruz and Fey, because
impairment of "a defendant's relationship with his child
involve[s] a very significant deprivation of liberty, [it]
require[s] a greater justification." Del Valle-Cruz, 785 F.3d at
62 (emphasis added). Where, as here, no justification at all is
given, and the record reveals none, condition three must be vacated
insofar as it applies to both of his children. To be clear, we
are not foreclosing the district court from restricting Cabrera's
interactions with his daughter or son under 18 U.S.C. § 3583(d),
which gives courts the discretion to order conditions of supervised
release that meet the statute's specified requirements.17 However,
maintaining that he acted in self-defense. At the sentencing hearing, defense counsel reported that Cabrera also was wounded and received treatment at a hospital. Although the district court found the severity of the brother's injuries "troublesome," it also noted "that probably there could be an argument of self defense." Whatever the full story, this isolated incident is a far cry from Pabon's "history of beating up women" and "inability to control his anger." 819 F.3d at 33. 16 The dissent suggests that condition three is an appropriate protection for Cabrera's daughter because she will turn sixteen -- Doe's age when Cabrera engaged in sexually explicit communications with her -- during Cabrera's supervised release term. However, given the obvious differences in the two relationships, it is not apparent how Cabrera's interactions with Doe support limiting his parental rights. 17 Section 3583(d) states, in pertinent part, that the court may order any "condition it considers to be appropriate" to the


- 39 -
any such restrictions imposed on remand must be explained and
supported by the record.18

Outcome: For the reasons given above, we dismiss Cabrera's appeal
of his terms of imprisonment and supervised release, and of the
first, second, fourth, fifth, and sixth conditions of supervised
release. We vacate the third condition of supervised release, and
remand to the district court for reconsideration of that condition.

Plaintiff's Experts:

Defendant's Experts:

Comments: