United States v. DaSilva
844 F.3d 8
1st Cir.2016Background
- Fernando DaSilva pled guilty to failing to register as a sex offender under SORNA and was sentenced to time served plus five years supervised release. He previously pled guilty in 2006 to possession of child pornography.
- The 2006 offense involved possession of nude photos of a 14-year-old passenger; DaSilva was 35 at the time and had been living with the girl; he served five years for that conviction.
- DaSilva has an extensive criminal history (multiple convictions from 1989–2012) including drug and property offenses and post-2006 convictions while at liberty.
- The district court imposed several special conditions of supervised release: mandatory sex-offender treatment with possible polygraph testing; no contact with minors under 18 except his own children (with probation approval/supervision); prohibition on loitering where children congregate; no employment/volunteer positions with access to minors without probation approval; and a residence restriction barring living with minors except his own children (probation approval required).
- DaSilva objected generally at sentencing and appealed, arguing the conditions were not reasonably related to his SORNA conviction, were overbroad, and unduly infringed associational liberty and parental rights. The First Circuit affirmed the conditions but remanded for clarification/correction of ambiguities (notably whether the oral exception for his own children applies in the written judgment and whether it extends to his fiancée’s child).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sex-offender treatment and polygraph condition were reasonable | Conditions are reasonably related to risk factors and supervision goals | Conditions are unrelated to SORNA conviction and unduly burdensome | Affirmed: conditions reasonable given prior child-pornography conviction, extensive criminal history, and SORNA lapse indicating recidivism risk |
| Whether associational restrictions with minors (contact, loitering, employment) were overbroad | Necessary to protect minors and tied to defendant’s history; allow probation exceptions | Overbroad; unduly restrict parenting, stepchild relationship, and incidental contact | Affirmed: restrictions permissible where not an outright ban, include exceptions and probation discretion; incidental encounters not covered |
| Whether district court provided adequate, case-specific justification for conditions | Reliance on presentence report paragraph showing prior sex offense and criminal history suffices | Reference to PSR is too tenuous; lacked sufficient explanation | Affirmed: reference to PSR plus oral statements adequate here, unlike cases where no reasoning was given |
| Whether written judgment conflicts with oral pronouncement (residence exception for own children) | N/A (government) | Written judgment omitted oral exception for own children; harms parental rights and raises ambiguity about stepchild | Remanded: oral ruling controls; district court to correct and clarify judgment, and specify whether fiancée’s child is included; clarify scope of incidental contact allowed |
Key Cases Cited
- United States v. Pabon, 819 F.3d 26 (1st Cir.) (upholding curtailed associational conditions and interpreting no-contact provisions to exclude incidental encounters)
- United States v. Mercado, 777 F.3d 532 (1st Cir. 2015) (upholding sex-offender conditions where prior sex offense and intervening criminality indicated recidivism risk)
- United States v. Del Valle-Cruz, 785 F.3d 48 (1st Cir. 2015) (vacating similar conditions where court provided no reasoning and defendant had long period of law-abiding conduct)
- United States v. Morales-Cruz, 712 F.3d 71 (1st Cir. 2013) (upholding sex-offender-related conditions where extensive criminal history showed pattern of noncompliance)
- United States v. Sebastian, 612 F.3d 47 (1st Cir. 2010) (upholding associational conditions where prior sexual offense plus other convictions supported restrictions)
- United States v. Fey, 834 F.3d 1 (1st Cir. 2016) (reversing associational conditions where they amounted to a total ban on contact with minors and defendant’s record showed rehabilitation)