United States v. Acevedo-Osorio

• Court: Court of Appeals for the First Circuit
• Decided: September 24, 2024
• Docket: 22-1610
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 21-1708, 22-1610

UNITED STATES OF AMERICA,

Appellee,

v.

NATANAEL ACEVEDO-OSORIO,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Montecalvo, Lipez, and Thompson, Circuit Judges.

José David Rodríguez, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, were on brief, for appellant.

Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Maria E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

September 24, 2024 LIPEZ, Circuit Judge. Appellant Natanael Acevedo-Osorio

("Acevedo") pleaded guilty to one count of coercion and enticement

of a minor. Pursuant to the plea agreement, Acevedo and the

government jointly recommended a sentence of 120 months'

imprisonment, the statutory minimum. Though such a sentence fell

well below the Guidelines sentencing range calculated for Acevedo,

the government offered no explanation for its sentencing

recommendation at the sentencing hearing. The court proceeded to

sentence Acevedo to 292 months in prison -- more than double the

sentence asked for by the parties, an increase of fourteen years.

The court also imposed a condition of supervised release

prohibiting Acevedo from having unsupervised contact with any

minor, including his children, and it ordered him to pay a special

assessment and restitution.

Acevedo now raises a bevy of challenges to this sentence

on appeal, highlighting both the government's lack of any

explanation for the negotiated sentence at the sentencing hearing

and the severity of the sentence and release conditions imposed.

We agree with Acevedo that the government breached the plea

agreement, as its laconic approach to the sentencing hearing

"undermine[d] the benefit of the bargain." United States v.

Frazier, 340 F.3d 5, 10 (1st Cir. 2003) (internal quotation marks

omitted). Even so, we conclude that -- under the circumstances

now before us -- the sentencing court's tacit endorsement of the

- 2 - government's breach does not constitute plain error, and we

otherwise affirm the length of the sentence as reasonable. For

the reasons laid out below, we also affirm the restriction on

Acevedo's unsupervised contact with his children, but we vacate

and remand the special assessment and restitution orders.

I.

A. Factual Background

Our description of the facts comes from the plea

agreement, the change of plea colloquy, the presentence

investigation report ("PSR"), and the transcript of the sentencing

hearing. See United States v. Diaz-Serrano, 77 F.4th 41, 44 (1st

Cir. 2023).

The relevant events concern Acevedo's sexual contact

with and solicitation of sexually explicit material from S.Q.R.

Acevedo met S.Q.R. in 2016 at a boxing gym. The first sexual

contact occurred in 2018, when Acevedo was twenty-five and S.Q.R.

was fifteen. Over the ensuing months, Acevedo subsequently had

sex with S.Q.R. many more times, and, on one occasion, Acevedo

took pictures of S.Q.R. without her knowledge while she slept,

including one in which she was naked, which he then threatened to

disseminate. When S.Q.R.'s mother became aware of Acevedo's

treatment of her daughter, she reported Acevedo to the police1 and

1 The record does not explain the outcome of this complaint to the police.

- 3 - sent S.Q.R. from Puerto Rico to Pennsylvania to live with S.Q.R.'s

father.

Acevedo continued to communicate with S.Q.R., using

messaging apps and social media, to solicit and receive sexually

explicit depictions of S.Q.R. On one occasion, during a video

chat, he asked S.Q.R. to perform sexual acts, and, unbeknownst to

her, recorded her doing so. Acevedo threatened to disseminate the

video unless she sent him more sexually explicit material, which

she did. Acevedo also pressured S.Q.R. to return to Puerto Rico

and live with him, which S.Q.R. unsuccessfully attempted to do.

After this event, her father confiscated her cell phone, but the

two maintained communication using another device.

Eventually, Acevedo sent a naked picture of S.Q.R. to

one of her coworkers, which prompted S.Q.R. to quit her job and

move to Oklahoma to live with her brother. Afterward, Acevedo

continued to solicit and receive explicit photos from S.Q.R., which

he again threatened to distribute. He also demanded to know her

whereabouts, commanded her to respond to his communications

instantly, and peppered her with jealous questions about her sexual

activity. Whenever she failed to respond promptly or provide

explicit photos of herself, he berated her with foul language.

All told, between June and August of 2019, the period charged in

the indictment, when S.Q.R. was 16 years old, Acevedo received at

least forty sexually explicit photos of her.

- 4 - S.Q.R. returned to Puerto Rico in August 2019. After

learning of her return, Acevedo instructed her to see him within

forty-eight hours. He threatened to pay someone to burn her

mother's car, break down her door, and abduct her if she refused.

That night, the car of S.Q.R.'s mother exploded after Acevedo

purportedly paid someone to set it on fire.

B. The Indictment and Plea Agreement

In 2019, a grand jury returned a three-count indictment

against Acevedo, charging him with the production of child

pornography, see 18 U.S.C. § 2251(a), (e) (Count 1); coercion and

enticement of a minor, see 18 U.S.C. § 2422(b) (Count 2); and

receipt of child pornography, see 18 U.S.C. § 2252(a)(2)(A),

(b)(1) (Count 3). Acevedo agreed to plead guilty to coercion and

enticement of a minor in exchange for the dismissal of Counts 1

and 3.

The plea agreement included a total offense level

calculation of 29, reflecting a base offense level of 32 because

the offense involved "causing . . . a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction

of such conduct," U.S.S.G. § 2G1.3(c)(1); see also id. § 2G2.1(a),

with a three-level reduction for acceptance of responsibility, see

id. § 3E1.1. The parties did not stipulate to a criminal history

category ("CHC"). Regarding the sentence to be recommended, the

agreement stated:

- 5 - After due consideration of the relevant factors enumerated in 18 U.S.C. § 3553(a), in exchange for the defendant pleading guilty to Count Two of the [i]ndictment, the parties will request the mandatory minimum sentence of one hundred twenty (120) months. The parties agree that the defendant shall serve at least five years of supervised release. The defendant agrees that the sentence range[2] is reasonable pursuant to Title 18, United States Code, § 3553(a).

In the statement of facts incorporated into the plea

agreement, Acevedo admitted only that he "requested [S.Q.R.] to

send him sexually explicit images of her through the WhatsApp

Messaging Application and then threatened to disseminate her

images if she did not comply with his demands." The statement

also noted that S.Q.R.'s phone contained sexually explicit images

of herself with timestamps corresponding to written requests from

Acevedo for such images. The district court accepted Acevedo's

guilty plea.

C. The PSR

The PSR outlined Acevedo's alleged acts in much more

specific and lurid detail than the admissions in the plea

agreement. Of particular significance, the PSR revealed that

Acevedo had not only threatened to disseminate explicit images of

S.Q.R. but had actually done so; that he had received at least

2 Notwithstanding use of the word "range," we understand this word to refer to the jointly recommended 120-month sentence. The parties do not suggest otherwise.

- 6 - forty explicit images of her; that he had frequent sexual contact

with her starting when she was fifteen; and that he had threatened

to pay someone to burn her mother's car shortly before it exploded.

With one exception,3 this information was drawn from unsworn,

arguably uncorroborated statements by S.Q.R. to law enforcement

and in her victim impact statement.

The PSR calculated a total offense level of 38. As in

the plea agreement, this calculation included a base offense level

of 32, see U.S.S.G. §§ 2G1.3(c)(1), 2G2.1(a), and a three-level

decrease for acceptance of responsibility, see id. § 3E1.1. But

the calculation in the PSR added a two-level increase for knowingly

distributing sexually explicit material involving a minor, see id.

§ 2G2.1(b)(3); a two-level increase for using a computer or

interactive computer service to entice a minor to engage in sexual

conduct, see id. § 2G2.1(b)(6)(B); and a five-level increase for

engaging in a pattern of prohibited sexual activity with a minor,

see id. § 4B1.5(b).

The PSR also included a criminal history score of

five -- three points for a prior firearms conviction, see id.

§ 4A1.1(a), and two points for committing the instant offense

during a term of probation.4 That score placed Acevedo in the CHC

3 According to the PSR, the FBI case agent verified the fact that S.Q.R. sent Acevedo at least 40 sexually explicit images. 4 In 2023, the Guidelines were amended to eliminate the automatic application of two criminal history points for offenses

- 7 - of III, yielding a Guidelines sentencing range of 292-365 months.

U.S.S.G. ch. 5, pt. A (sentencing table). The PSR noted that

Acevedo had experienced trauma, including a turbulent childhood

and the murders of both his father and brother, as a mitigating

factor to consider. On the other hand, the PSR stated that

Acevedo's threatening and abusive conduct, as well as his violation

of probation, "demonstrat[ed] [Acevedo's] total disregard for the

law."

D. The Sentencing Hearing

At the sentencing hearing, Acevedo's counsel objected to

the PSR's reliance on S.Q.R.'s unsworn statements in its statement

of facts and victim impact statement. Counsel also argued that

some of the statements were unrelated to the crime of conviction.

The sentencing court overruled that objection, stating broadly

that "the information provided by the victim is reliable and

verified enough" to include in the PSR as discovery information

pertinent to the indicted conduct and noting that the sentencing

enhancements supported by those statements do not require a

conviction.

Counsel next objected to the recommendation in the PSR

of a special assessment of $5,000 pursuant to the Justice for

committed during probation previously imposed under U.S.S.G. § 4A1.1(d). This amendment is not relevant to the issues on appeal.

- 8 - Victims of Trafficking Act ("JVTA"), see 18 U.S.C. § 3014(a),

arguing that it was inapplicable because Acevedo was indigent.

The court denied that objection but said it would reconsider if

"Mr. Acevedo can later indicate that he will not be able to pay

the $5,000 because of inability to have a job." Lastly, counsel

objected to the PSR's proposed condition of supervised release

that would restrict him from having unsupervised contact with his

own minor children.5 At the court's prompting, the probation

officer explained that Acevedo would be able to contact his

children with a chaperone, and that the restriction could later be

lifted with the approval of his probation officer, his mental

health treatment provider, and the children's mothers. On that

understanding, the court overruled the objection.

With respect to Acevedo's requested sentence, Acevedo's

counsel emphasized Acevedo's turbulent upbringing and the recent

murder of his brother as mitigating factors. She also pointed to

the ongoing support of his family, the mothers of his children,

and his boxing coach as evidence of his good character. Lastly,

counsel noted that Acevedo would have to serve one year in state

5 The proposed condition provided: "[Acevedo] shall not have unsupervised contact as to any other related or non-related child below the ages of 18, specifically his children, unless determined to be appropriate by the treatment provider and the Probation Officer and always in the presence of his children's mothers." To be clear, Acevedo has not challenged the restriction against unsupervised contact with minor children other than his own.

- 9 - prison due to the revocation of his probation and would have to

register as a sex offender as additional consequences of his crime.

Counsel argued that these considerations supported the jointly

recommended 120-month sentence.

The government offered only the following: "Good

morning, Your Honor. On behalf of the Government, we would be

recommending 120 months pursuant to the plea agreement. Thank

you."

Agreeing with the PSR, the court calculated a total

offense level of 38 and a CHC of III, for a Guidelines sentencing

range of 292 to 365 months. After recounting Acevedo's criminal

history and the PSR's description of events, the court found

Acevedo's "abusive and threatening conduct" outweighed any

mitigating circumstances. The court stated that the recommended

120-month sentence "does not reflect the seriousness of Mr.

Acevedo's offense, does not promote respect for the law, does not

protect the public from future crimes from Mr. Acevedo, and does

not address the issues of deterrence and punishment." It then

sentenced Acevedo to 292 months' imprisonment, the bottom of the

calculated Guidelines sentencing range.

Consistent with the recommendation in the PSR, the court

also imposed a fifteen-year term of supervised release, three times

greater than the five-year term recommended by the plea agreement,

and the condition that he have no unsupervised contact with any

- 10 - minors, including his children. The court ordered the $5,000 JVTA

assessment. The court also ordered Acevedo to pay restitution but

opted to defer deciding the amount to later proceedings. In a

subsequent filing, the government requested $3,275 of restitution

for the destruction of S.Q.R.'s mother's car. Before Acevedo could

file a response, the court granted that request.

In this timely appeal, Acevedo argues that the

government breached the plea agreement. He also challenges the

sentence as procedurally unreasonable, and he seeks vacatur of the

restriction on unsupervised access to his children, the JVTA

assessment, and the restitution order.

II.

We begin with Acevedo's 292-month sentence.

A. Breach of the Plea Agreement

Given that Acevedo did not assert that the government

breached the plea agreement during the sentencing proceedings, our

review is for plain error. See United States v. Sierra-Jiménez,

93 F.4th 565, 570 (1st Cir. 2024). To satisfy this "rigorous"

standard, United States v. Ortiz, 741 F.3d 288, 293 (1st Cir.

2014), Acevedo must show "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the [appellant's]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings," United

- 11 - States v. Cheveres-Morales, 83 F.4th 34, 42-43 (1st Cir. 2023)

(alteration in original).

1. Background Law

"There is no doubt whatsoever that plea agreements play

an 'important role . . . in our criminal justice system.'" United

States v. Cortés-López, 101 F.4th 120, 127 (1st Cir. 2024)

(omission in original) (quoting Frazier, 340 F.3d at 10). After

all, plea bargains facilitate the "prompt" administration of

justice, thus warding off the "corrosive impact" on defendants of

lengthy pretrial detention, "protect[ing] the public" when such

detention is not imposed, and "enhanc[ing] . . . the

rehabilitative prospects of the guilty." Frazier, 340 F.3d at 10

(quoting Santobello v. New York, 404 U.S. 257, 261 (1971)). Plea

bargaining also "benefits a host of [other] important

constituencies," including the government and the public in the

form of preserved resources and efficient law enforcement, as well

as victims of crimes, who secure a quick and final judgment.

Jeffrey Bellin, Plea Bargaining's Uncertainty Problem, 101 Tex. L.

Rev. 539, 548-49 (2023).

Pleading guilty is also a weighty decision for a

defendant, who typically agrees to waive important constitutional

rights in exchange for the government's promise to lend its

"prestige" to the defendant's requested sentence, and with it the

added "potential to influence the district court" to accept the

- 12 - agreed-upon sentence. United States v. Velez Carrero, 77 F.3d 11,

11-12 (1st Cir. 1996) (emphasis omitted). At bottom, hence, our

strict enforcement of plea agreements stems from our desire to

protect defendants from forsaking their fundamental trial rights

in exchange for empty promises, see Frazier, 340 F.3d at 10.

Accordingly, to preserve faith in the plea-bargaining process, "we

'hold prosecutors to the most meticulous standards of promise and

performance.'" United States v. Brown, 31 F.4th 39, 50 (1st Cir.

2022) (internal quotation marks omitted) (quoting United States v.

Marín-Echeverri, 846 F.3d 473, 478 (1st Cir. 2017)). As this

formulation implies, traditional contract principles guide our

assessment of the plea agreement and the government's adherence to

it. Id.; see also Puckett v. United States, 556 U.S. 129, 137

(2009) ("[P]lea bargains are essentially contracts.").

Broadly speaking, the government may breach a plea

agreement in two ways. First, it can breach the agreement's

express terms by doing something that it promised not to do, see,

e.g., Santobello, 404 U.S. at 262 (finding breach when government

promised to make no sentencing recommendation but did so), or

failing to do something that it promised to do, see, e.g., Velez

Carrero, 77 F.3d at 11-12 (finding breach when government promised

to oppose an offense level adjustment but instead "ma[de] no

suggestion to the court" as to a potential adjustment).

- 13 - Second, even when the government is in "technical

compliance" with the plea agreement's express terms, the

prosecutor's actions may implicitly "undercut" the deal. United

States v. Almonte-Nuñez, 771 F.3d 84, 89, 90 (1st Cir. 2014). As

we have often stated, the government may not merely pay "lip

service" to the plea agreement, "reaffirm[ing] a promise to the

defendant out of one side of [its] mouth" but "try[ing] to subvert

it out of the other side." Id. at 91. After all, "as in all

contracts, plea agreements are accompanied by an implied

obligation of good faith and fair dealing." Frazier, 340 F.3d at

11 (quoting United States v. Ahn, 231 F.3d 26, 35-36 (D.C. Cir.

2000)); see also Cortés-López, 101 F.4th at 128 ("[T]he defendant

is entitled to both the 'benefit of the bargain struck in the plea

deal and to the good faith of the prosecutor.'" (quoting United

States v. Lessard, 35 F.4th 37, 42 (1st Cir. 2022))).

While there is no "magic formula" for evaluating claims

of breach, United States v. Gonczy, 357 F.3d 50, 54 (1st Cir.

2004), the government's "overall conduct must be reasonably

consistent with making [the agreed-upon] recommendation, rather

than the reverse," United States v. Canada, 960 F.2d 263, 269 (1st

Cir. 1992). Put another way, we must examine the "net effect of

the government's behavior" to determine whether, on balance, it

has "undermine[d] the benefit of the bargain." Cortés-López, 101

F.4th at 128 (internal quotation marks omitted) (quoting Frazier,

- 14 - 340 F.3d at 10). We thus must examine the totality of the

circumstances in a case-by-case approach. Id.

Typically, cases of implicit breach involve the

government saying or doing something that could signal to the

sentencing court its dissatisfaction with the agreed-upon

sentence. See United States v. Miranda-Martinez, 790 F.3d 270,

275 (1st Cir. 2015) (noting that breach may occur when the

prosecutor engages in "implicit advocacy" for a result contrary to

the plea agreement). In Canada, for instance, we found that the

prosecutor had engaged in such a wink and a nod by making only

"grudging and apologetic" comments in support of the agreed-upon

sentence while stressing the need for "a lengthy period of

incarceration" and emphasizing facts that supported an enhancement

not contemplated by the plea agreement. 960 F.2d at 269 (internal

quotation marks omitted). Likewise, in Gonczy, the prosecutor

ostensibly stood by the plea agreement's recommendation but then

emphasized the harmful consequences of the defendant's acts so

much that no "impartial observer [would] think that [the

government] thought [the agreed-upon sentence] was

. . . adequate." 357 F.3d at 54; see also United States v.

Mojica-Ramos, 103 F.4th 844, 850 (1st Cir. 2024) (finding breach

where government called the defendant "exception[ally]" dangerous

and adduced copious evidence of uncharged criminal behavior);

Cortés-López, 101 F.4th at 132-33 (finding breach where,

- 15 - unprompted, the government endorsed the Guidelines calculation in

the PSR rather than the less harsh calculation in the plea

agreement).

On the other hand, the government ordinarily has no

"obligation . . . to further explain its recommendation," even in

the case of a downward variance, "when such an obligation is not

explicit in the plea agreement." United States v. Cruz-Agosto,

102 F.4th 20, 26 (1st Cir. 2024); see also Lessard, 35 F.4th at 44

(holding that, unless contemplated by the plea agreement, the

government has "no affirmative obligation of either advocacy or

explication"). Nor must the government present the recommended

sentence enthusiastically. Cruz-Agosto, 102 F.4th at 25. Indeed,

unless expressly disallowed by the terms of the plea agreement,

the government has a right to explain to the court its rationale

for agreeing to and recommending the sentence in terms unfriendly

to the defendant, by, for example, explaining that the sentence is

warranted by the need for punishment, so long as it does not imply

that a greater sentence is called for. See, e.g., Brown, 31 F.4th

at 50-51 (finding no breach where, despite emphasizing that the

defendant had acted "reckless[ly]," the government's conduct was

consistent with recommending the agreed-upon sentencing range).

These limitations accord with traditional contract

principles. While the government must act in good faith, Frazier,

340 F.3d at 11, that duty only prohibits the government from

- 16 - interfering with a defendant's reasonably expected benefit of the

bargain, Metcalf Constr. Co. v. United States, 742 F.3d 984, 991

(Fed. Cir. 2014). It does not impose upon the government

additional "duties beyond those in the express contract or create

duties inconsistent with the contract's provisions." Id. (quoting

Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831

(Fed. Cir. 2010)); but see id. (explaining that the implied duty

of good faith and fair dealing "prevents a party's acts or

omissions that, though not proscribed by the contract expressly,

are inconsistent with the contract's purpose and deprive the other

party of the contemplated value").

Notwithstanding our general rule that the government has

no implied duty to explain a plea deal's recommended sentence, we

have recognized that the government may be obliged to offer "some

minimal explanation" in the rare circumstance in which the parties

agree to jointly recommend a sentence that amounts to such a

"dramatic downward variation" that, without some justification by

the government, "the district court [would be] left to speculate

about what rationale might reasonably support such a seemingly

off-kilter, well-below guidelines recommendation." Cortés-López,

101 F.4th at 132-33. Thus, in Cortés-López, we found that the

government was obliged to provide some justification for its

recommendation, pursuant to the plea agreement, of what appeared

to be an extremely lenient sentence -- twenty-four months'

- 17 - probation -- as compared to the calculated low-end sentence of

seventy-eight months' imprisonment laid out in the PSR. Because

the recommended sentence differed from the applicable Guidelines

sentence so drastically, in both degree and in kind, the

government's "reserve" could only be interpreted as "a repudiation

of the agreement."6 Id. at 133.

Finally, despite the government's obligation to honor

the bargain struck in the plea agreement, we have recognized that

the government has "a concurrent and equally solemn obligation to

provide relevant information to the sentencing court."

Almonte-Nuñez, 771 F.3d at 86, 90; see also 18 U.S.C. § 3661 ("No

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence."); U.S.S.G.

§ 1B1.4 (same). At times, this obligation to the court may come

into "tension" with "the fact that 'certain factual omissions,

6 We note that in Cruz-Agosto -- a decision issued just four days after Cortés-López -- we stated that "we have never imposed an obligation on the government to further explain its recommendation for a downwardly variant sentence." Cruz-Agosto, 102 F.4th at 26 (emphasis added). However, Cruz-Agosto does not cite Cortés-López, and we assume that the later panel was simply unaware of that just-issued opinion requiring explanation in certain extreme circumstances. In any event, the jointly recommended downward variance in Cruz-Agosto -- which was only twenty months shorter than, or about 35% less than, the lower end of the Guidelines range -- was far less significant than the "dramatic" variance requested in Cortés-López.

- 18 - helpful to the defendant, may be an implicit part of the bargain

in a plea agreement.'" United States v. Davis, 923 F.3d 228, 237

(1st Cir. 2019) (internal quotation marks and alteration omitted)

(quoting Miranda-Martinez, 790 F.3d at 274).

In assessing the government's conduct, we must balance

these competing interests, recognizing that the government will

rarely breach a plea agreement merely by providing relevant

information to the court that happens to be unfavorable to a

defendant, so long as it does not cross the line into express or

implicit advocacy for a greater-than-agreed-upon sentence

recommendation. See Almonte-Nuñez, 771 F.3d at 90 (finding no

breach where the government agreed that there was a factual basis

for an offense-level adjustment not contemplated by the plea

agreement but continued to advocate for the agreed-upon sentence).

It is particularly significant in the breach analysis when the

information provided by the government came at the court's

prompting. See, e.g., id.; United States v. Saxena, 229 F.3d 1,

7 (1st Cir. 2000) ("We consider it important that the AUSA's

remarks came at the court's urging and in direct response to

defense counsel's attempt to put an innocent gloss on the post-plea

activities.").

2. Discussion

Acevedo argues that, during the sentencing hearing, the

government both breached the plea agreement's express terms and

- 19 - implicitly repudiated it. We need not treat these theories of

breach as wholly separate. Because we assess the totality of the

circumstances, we must consider both the terms of the agreement

and the government's conduct, viewed holistically, to assess

whether, overall, the government acted consistently with Acevedo's

reasonable expectations. See Canada, 960 F.2d at 268-70

(concluding that the government had breached the plea agreement

based on explicit and implicit factors).

Our focus on Acevedo's reasonable expectations follows

from the contract principles discussed above. As noted, plea

agreements, like all contracts, "are accompanied by an implied

obligation of good faith and fair dealing," Frazier, 340 F.3d at

11 (quoting Ahn, 231 F.3d at 35-36), which obligates the government

to refrain from "acts or omissions that . . . are inconsistent

with the contract's purpose and deprive the other party of the

contemplated value," Metcalf Const. Co., 742 F.3d at 991; see also

Restatement (Second) of Contracts § 205 (Am. L. Inst. 1981) ("Good

faith performance or enforcement of a contract emphasizes

faithfulness to an agreed common purpose and consistency with the

justified expectations of the other party"); 23 Williston on

Contracts § 63:22 (4th ed. 2024) ("[W]hen one party performs the

contract in a manner that is unfaithful to the purpose of the

contract and the justified expectations of the other party are

thus denied, there is a breach of the covenant of good faith and

- 20 - fair dealing."). Accordingly, in construing plea agreements,

"[t]he touchstone is the 'defendant's reasonable understanding' of

the agreement." United States v. Gardner, 5 F.4th 110, 114 (1st

Cir. 2021) (quoting United States v. Conway, 81 F.3d 15, 17 (1st

Cir. 1996)); cf. United States v. Gall, 829 F.3d 64, 72 n.6 (1st

Cir. 2016) (citing cases for the general proposition that a court's

construction of a plea agreement should align with the reasonable

expectations of the parties). The government's conduct must be

"reasonably consistent," Canada, 960 F.2d at 269, with the benefit

of the bargain that induced the defendant to forgo important

constitutional trial rights and instead admit guilt.

The agreement states that "[a]fter due consideration of

the relevant factors enumerated in 18 U.S.C. § 3553(a), in exchange

for the defendant pleading guilty to Count Two of the Indictment,

the parties will request the mandatory minimum sentence of one

hundred twenty (120) months." Acevedo argues that the phrase

"[a]fter due consideration of the relevant factors" obligated the

government, during the sentencing hearing, to contextualize its

recommendation within the sentencing factors. Another possible

interpretation, however, is that this reference merely reflects

the parties' understanding that the sentence aligns with the

sentencing factors. "[W]hen the words of a plea agreement are

unclear, extrinsic evidence may be considered to clarify the

parties' understanding." Gall, 829 F.3d at 72. Neither party,

- 21 - however, points to extrinsic evidence clarifying the agreement's

meaning, and our independent review of the record is likewise

unavailing. We thus fall back on the general contract principle

that, as the drafter of the agreement, "[a]mbiguities in plea

agreements are construed against the government." United States

v. Newbert, 504 F.3d 180, 185 & n.3 (1st Cir. 2007); see also

United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988)

("Given the relative interests implicated by a plea bargain, we

find that the costs of an unclear agreement must fall upon the

government."). Therefore, the phrase, even if ambiguous, informs

our understanding of what Acevedo reasonably expected to get out

of pleading guilty: a sentencing hearing in which the court would

understand why, under the relevant sentencing factors, the

government believed a 120-month sentence was appropriate.

Hence, to resolve Acevedo's claim that the government

implicitly repudiated the agreement with its terse presentation,

we must determine if the government acted consistently with

Acevedo's expectation. Whereas many of our cases finding an

implicit breach involved plainly discernable cues to the

sentencing judge that the government disapproved of the

agreed-upon sentence, see, e.g., Mojica-Ramos, 103 F.4th at 850;

Gonczy, 357 F.3d at 54; Canada, 960 F.2d at 268-69, here any such

wink or nod by the government was far more subtle. That is, the

government never affirmatively sent such a message of disapproval.

- 22 - Indeed, the prosecutor uttered only 16 words of substance: "On

behalf of the Government, we would be recommending 120 months

pursuant to the plea agreement."

The government defends that tightlipped approach

entirely on the general principle that, absent an express statement

in the plea agreement, it has "no affirmative obligation of either

advocacy or explication," Lessard, 35 F.4th at 44, even when

recommending a substantial downward variance, see Cruz-Agosto, 102

F.4th at 26 (finding no breach where the parties agreed to

recommend a thirty-seven-month sentence whereas the Guidelines

sentencing range was fifty-seven to seventy-one months). The

government's sole reliance on that principle is difficult to

square, however, with our recent decision in Cortés-López. See

101 F.4th at 132-33 (finding breach where government's only

affirmative acknowledgment of the agreed-upon sentence was its

statement that it would "stand by" the agreement, spoken after its

unprompted assent to the drastically higher loss amount in the PSR

than contemplated by the plea agreement).

As we discuss below, there are several meaningful

factual differences between that case and the present

circumstance. Nonetheless, the core principle articulated in

Cortés-López -- that in certain circumstances the government owes

at least a "minimal explanation," id. at 132, when it agrees to

jointly recommend a dramatic downward variance -- leads us to

- 23 - conclude that here "the government's failure to provide at least

some explanation for its decision to lend its prestigious

imprimatur to such a dramatic downward variation likely caused the

district court to view the government's 'stand by' statement as

just hollow words, undermining any notion that the government

viewed the plea agreement as fair and appropriate," id. at 133.7

Most significantly, the jointly recommended sentence

here was the statutory minimum of 120 months' imprisonment, whereas

the applicable Guidelines sentencing range called for 292-365

months. In other words, the government agreed to recommend a

sentence that was, in raw terms, fourteen years less than the

minimum sentence called for by the Guidelines, and, in relative

terms, less than half as long.

Additionally, similar to Cortés-López, see 101 F.4th at

132-33, we find the government's reserved approach especially

remarkable considering the stark differences between the plea

agreement and the PSR.8 As we have noted, the PSR described in

7The fact that we decided Cortés-López after Acevedo's sentencing proceeding does not affect our analysis. See United States v. Delgado-Sánchez, 849 F.3d 1, 13 (1st Cir. 2017) ("[P]lain error review requires us to evaluate whether the law is clear now, at the time we are conducting appellate review, regardless of whether the law was unclear at the time of sentencing."). In Cortés-López, which involved financial fraud, the PSR 8

calculated a much greater loss amount than the one calculated by the parties, which resulted in a far greater total offense level and Guidelines sentencing range that further underscored the lenient sentence recommended pursuant to the plea agreement.

- 24 - painful detail a long-running, sexually exploitative

"relationship" beginning when S.Q.R. was just fifteen years old,

characterized by abusive language and threats of humiliation.

Moreover, the PSR divulged the production of a sexually explicit

video, the exchange of approximately forty sexually explicit

photos of S.Q.R., the unwanted distribution of one such photo to

her coworker, and the purported destruction of S.Q.R.'s mother's

car. By contrast, Acevedo understood that he was pleading guilty

to one count of coercion and enticement of a minor, based on the

minimal, unadorned admission of soliciting an explicit video on

one occasion and a vague admission of threatening to distribute.

That sparse narrative informed the parties' agreement to jointly

recommend the most lenient possible sentence for that offense,

while dismissing the additional charges of production and receipt

of child pornography.9 Ultimately, the revelations in the PSR,

which supported several sentencing enhancements absent from the

plea agreement, led the probation office to calculate a total

offense level and Guidelines sentencing range that dwarfed the one

calculated by the parties and painted a damning portrait of

Acevedo.

We note that the statutory minimum sentence for production 9

of child pornography would have been fifteen years' imprisonment rather than the ten-year statutory minimum for Acevedo's crime of conviction. See 18 U.S.C. § 2251.

- 25 - We can see no reason why the government would not have

been aware of this information when it entered into the plea

agreement. Other than some details introduced by S.Q.R.'s victim

impact statement, most of the PSR's narrative comes from the

government's discovery, particularly S.Q.R.'s statements to

investigators.10 The government thus surely understood that, by

agreeing to dismiss the child pornography charges and recommending

the most lenient possible sentence despite the severity of

Acevedo's wrongful conduct, it was making Acevedo an unusually

generous offer that would induce the reasonable expectation,

informed by the advice of counsel, that his acceptance of

responsibility would yield a sentencing proceeding that gave him

some hope of leniency. Yet, despite the stark narrative

differences between the plea agreement and the PSR, the government

made no effort to explain why it thought a 120-month sentence was

still warranted under the sentencing factors. Instead, "the

district court was left to speculate about what rationale might

reasonably support such a seemingly off-kilter, well-below

guidelines recommendation." Cortés-López, 101 F.4th at 133.

Acevedo argues that merely by providing this information 10

to the probation office, the government breached the plea agreement. Given the government's "solemn obligation to provide relevant information to the sentencing court," Almonte-Nuñez, 771 F.3d at 86, 90, we disagree.

- 26 - In short, Acevedo did not get what he bargained for: a

sentencing hearing in which an inevitably skeptical court could at

least comprehend why, in the government's view, the sentence was

proper. Of course, such a proceeding would not have guaranteed

Acevedo the lenient sentence he hoped to secure when he agreed to

plead guilty, but it would have at least delivered the promised

benefit of a realistic chance at such an outcome. The government's

failure to offer a "minimal explanation," id. at 132, for

recommending what appeared to be a startingly lenient sentence

deprived Acevedo of the added "prestige" necessary for the

government's recommendation to have any "potential to influence

the district court," Velez Carrero, 77 F.3d at 11-12 (emphasis

omitted). In the circumstances of this case, the government's

perfunctory performance was thus not "reasonably consistent with

making [the agreed-upon] recommendation." Canada, 960 F.2d at

269. Rather, the "net effect of the government's behavior

undermine[d] the benefit of the bargain upon which [Acevedo] has

relied." Frazier, 340 F.3d at 10 (internal quotation marks

omitted).

3. Plain Error Review

Though we conclude that the government's failure to

explain its sentence recommendation in this case was "tantamount

to a repudiation of the agreement," Cortés-López, 101 F.4th at

133, we must still consider whether Acevedo has satisfied the

- 27 - remaining prongs of our plain-error test. Our analysis ends,

however, with the second requirement: that the government's breach

had to be clear and obvious in light of existing law. See

Cheveres-Morales, 83 F.4th at 43. To rise to that level, the

"error must, at the very least, contradict existing law." United

States v. Gonzalez, 981 F.3d 11, 22 (1st Cir. 2020). Accordingly,

"ambiguous case law does not give rise to the clear or obvious

error necessary to comport with the plain-error construct," id.,

required to vacate Acevedo's sentence.

Notwithstanding our recognition that Cortés-López helps

explain why the government's conduct was improper, we perceive

enough differences between that case and the present case that we

cannot conclude that the "error [was] 'indisputable' in light of

controlling law." Gonzalez, 981 F.3d at 22 (quoting United States

v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014)). For one thing, in

Cortés-López, we emphasized that the sentence recommendation

warranting a minimal explanation from the government was not only

much shorter than the Guidelines sentencing range but also took a

different form -- probation rather than imprisonment. 101 F.4th

at 133. Here, the recommended sentence has a much greater

disparity in length, but had no difference "in kind." Id.

Additionally, in Cortés-López, the prosecutor made an unprompted

statement agreeing with aspects of the PSR that differed from the

plea agreement and supported a higher sentence. Id. at 132-33.

- 28 - While we did not rest our analysis in Cortés-López on that fact

alone, the presence of such a statement undermining the plea

agreement is a significant factual difference from the present

case.

Indeed, as we have noted, other cases identifying an

implicit repudiation of the plea deal have involved similar

affirmative conduct by the government signaling its

dissatisfaction, as opposed to the government's omission here.

See, e.g., Mojica-Ramos, 103 F.4th at 850; Gonczy, 357 F.3d at 54;

Canada, 960 F.2d at 268-69. Considering this pattern in our past

cases, the general principle that the government has "no

affirmative obligation of either advocacy or explication,"

Lessard, 35 F.4th at 44, and the various factors distinguishing

Acevedo's circumstances from those present in Cortés-López, we

cannot say that the government's omission of an explanation here

was a clear or obvious breach so as to satisfy the high bar set by

this prong of plain error review. We therefore decline to vacate

Acevedo's sentence, notwithstanding the government's breach.

B. Procedural Reasonableness

Acevedo asserts that his sentence was not supported by

a preponderance of the evidence, as it must be, see United States

v. Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017), because the

court's factfinding depended upon statements in the PSR that are,

in Acevedo's telling, unreliable. Because Acevedo preserved this

- 29 - objection, we review the court's factfinding for clear error within

the abuse-of-discretion framework that accompanies claims of

procedural error. See United States v. Mejia, 55 F.4th 1, 9 (1st

Cir. 2022). Under this deferential standard, "[w]e must uphold

the district court's ruling unless 'we are left with the definite

and firm conviction that a mistake has been committed.'" Sanchez

v. Roden, 808 F.3d 85, 90 (1st Cir. 2015) (quoting United States

v. Mensah, 737 F.3d 789, 796–97 (1st Cir. 2013)).

The gravamen of Acevedo's complaint is that the district

court relied largely on unsworn, uncorroborated statements by

S.Q.R. contained in the PSR to calculate the Guidelines sentencing

range, as well as to form its qualitative view of Acevedo's

conduct. Acevedo accurately describes the court's reasoning:

S.Q.R.'s account in the PSR led the court to calculate a total

offense level of 38, including enhancements of seven levels for

engaging in a pattern of sexual misconduct with a minor and

distributing sexually explicit material of a minor. Likewise, the

PSR's lurid account of a long-running exchange of sexually explicit

material and Acevedo's manipulative and threatening behavior

clearly influenced the court's sentencing rationale. S.Q.R. was

the source of nearly all these allegations, most of which were not

corroborated by any direct evidence.11 Our task, therefore, is to

11As noted, the fact that Acevedo received forty explicit photos was corroborated by the FBI investigation. The government's

- 30 - determine whether the sentencing court's heavy reliance on

S.Q.R.'s statements to support these two enhancements and to

otherwise guide its sentencing rationale was procedural error.

"[A] district court 'must take pains to base sentencing

judgments upon reliable and accurate information.'" United States

v. Rodríguez-Cruz, 997 F.3d 362, 366 (1st Cir. 2021) (quoting

United States v. Tavano, 12 F.3d 301, 305 (1st Cir. 1993)).

According to Acevedo, S.Q.R.'s statements were not reliable

because they were unsworn, lacked corroboration, had some internal

inconsistency, and included "multiple-level hearsay."12 This

challenge to the reliability of information in the PSR is an uphill

battle, as we generally presume that "a PSR bears sufficient

indicia of reliability to permit the district court to rely on it

at sentencing." United States v. Cyr, 337 F.3d 96, 100 (1st Cir.

2003) (quoting United States v. Taylor, 277 F.3d 721, 724 (5th

Cir. 2001)). Acevedo offered the district court no "countervailing

evidence or proffers" to challenge the PSR's reliability, as he

must to generate a "genuine and material dispute" during

appellate brief also states that the allegation that Acevedo sent an explicit photo to S.Q.R.'s coworker was corroborated by that coworker. We do not rely on this out-of-record representation. "[N]either the Federal Rules of Evidence nor the Sixth 12

Amendment's confrontation clause applies" during sentencing hearings, and thus a sentencing court may rely on hearsay evidence. United States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018). We understand Acevedo's claim that the statements are hearsay to simply be another reason why they are unreliable.

- 31 - sentencing. Id. Rather, he merely asserted that S.Q.R.'s

statements were "unverified" and "unrelated to the crime of

conviction." When faced with "objections to the PSR [that] are

merely rhetorical and unsupported by countervailing proof, the

district court is entitled to rely on the facts in the PSR." Id.

Acevedo's argument for procedural error thus closely

resembles the one we rejected in United States v. Santiago-Colon,

918 F.3d 223, 226 (1st Cir. 2019). In that case, the defendant

challenged the reliability of uncorroborated, uncharged statements

by a sexual abuse survivor whose statements were included in the

PSR. We explained, just as here, that the defendant's claim failed

because he offered no evidence that the statements were unreliable.

Id. Acevedo argues that Santiago-Colon is distinguishable

because, in that case, the challenged statements were consistent

with the trial testimony of other survivors. But we did not uphold

the sentencing court's factfinding on that basis -- we were

satisfied that the PSR was presumptively reliable, and the

defendant had failed to prove otherwise. Id. The same is true

here.

We note, moreover, that S.Q.R.'s statements are

consistent with the (minimal) information admitted to by Acevedo

in the plea agreement. See Cyr, 337 F.3d at 100 (noting that the

reliability of detailed information in the PSR was supported by

less detailed admissions in the plea agreement). In the plea,

- 32 - Acevedo accepted responsibility for soliciting explicit photos

from S.Q.R. and threatening to distribute them. The plea also

confirms that S.Q.R. took explicit photos of herself at the time

Acevedo requested them. These acknowledged facts align with

S.Q.R.'s allegations, which are far more detailed but ultimately

relate to Acevedo soliciting and receiving explicit images from

S.Q.R. and then using the photos to coerce and intimidate her.

Because the district court's reliance on S.Q.R.'s

statements in the PSR was not clearly erroneous, we reject

Acevedo's broad procedural challenge to the district court's

factfinding, as well as his attack on the two specific enhancements

premised on S.Q.R.'s statements.13

13 Acevedo also argues that the two-level enhancement for distribution was unwarranted because the PSR only describes the photo distributed to S.Q.R.'s coworker as a "naked picture," whereas the enhancement applies only to depictions of "sexually explicit conduct," as defined under 18 U.S.C. § 2256(2). See U.S.S.G. § 2G2.1, cmt. 1; see also United States v. Amirault, 173 F.3d 28, 33-35 (1st Cir. 1999) (holding that a photo depicting "mere nudity" does not meet the statutory definition of sexually explicit conduct (analyzing 18 U.S.C. § 2256(2))). This argument is meritless. Most of the photos described in the PSR included "lascivious exhibition of the anus, genitals, or pubic area." 18 U.S.C. § 2256(2). Absent any offer of proof to the contrary, the district court's inference that the photo Acevedo distributed was also of this nature was not clearly erroneous. See Brown, 31 F.4th at 46 ("We will not find clear error in the court's application of the guidelines to the facts 'as long as the district court's decision is based on reasonable inferences drawn from adequately supported facts.'" (quoting United States v. Martin, 749 F.3d 87, 92 (1st Cir. 2014))).

- 33 - * * *

In sum, the court did not commit plain error by

overlooking the government's breach of the plea agreement. Having

also rejected Acevedo's claim of procedural error, we affirm

Acevedo's 292-month prison sentence.

III.

We next consider the condition of supervised release

restricting Acevedo's unsupervised contact with his children.14 As

Acevedo raised this objection to the district court, we review his

challenge for abuse of discretion, revisiting legal issues de novo,

assessing the district court's factual findings for clear error,

and viewing deferentially the court's "judgment calls." United

States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (quoting Riva v.

Ficco, 615 F.3d 35, 40 (1st Cir. 2010)).

The sentencing court must set forth a "reasoned and

case-specific explanation" for the conditions of supervised

release. United States v. DaSilva, 844 F.3d 8, 11 (1st Cir. 2016)

(quoting United States v. Perazza-Mercado, 553 F.3d 65, 75 (1st

Cir. 2009)). These conditions must "involve[] no greater

deprivation of liberty than is reasonably necessary to achieve the

goals of the sentence," and must be "reasonably related both to

these goals and to the nature and circumstances of the offense and

At the time of sentencing, 14 Acevedo had four minor children: three daughters and a son.

- 34 - the history and characteristics of the defendant." Id. (quoting

Perazza-Mercado, 553 F.3d at 69). We require a "greater

justification" for special conditions "that would impair a

defendant's relationship with his child[ren]." United States v.

Del Valle-Cruz, 785 F.3d 48, 62 (1st Cir. 2015).

While the district court did not expressly explain the

restriction on Acevedo's access to his children, the requirement

that it explain its reasoning is satisfied "so long as the court's

reasoning can be deduced from the record." United States v. Leach,

89 F.4th 189, 201 (1st Cir. 2023). Here, the court solicited, and

accepted, an explanation from the probation officer during the

sentencing hearing. The probation officer explained that the

nature of the offense made the restriction necessary "to protect

the community and to protect minors." With regard to Acevedo's

children, specifically, the officer explained that Acevedo would

have chaperoned contact and that unsupervised visits could be

possible, in consultation with mental health professionals and the

children's mothers.

Acevedo argues that the restriction is not supported by

the record, which shows that he is a good father and that his

conduct did not involve a family member or occur inside the

familial home. He also points out that during the period charged

in the indictment S.Q.R. was sixteen, and, thus, though a minor

for the purposes of 18 U.S.C. § 2422(b), she was of the age of

- 35 - consent in Puerto Rico, see 33 L.P.R. § 4770(a), and that he and

S.Q.R. were, as he puts it, "romantically involved, their

relationship bearing no resemblance to anything like a parental or

familial association." Thus, he asserts, the restriction is not

reasonably related to his offense and unduly intrudes upon his

parental liberty interests.

The PSR, however, does not describe a "romantic"

entanglement. Rather, it describes an exploitative relationship

between a teenager and an older man who used abusive language and

threats of humiliation to solicit sexually explicit images from

her and manipulate her behavior. Although Acevedo is correct that

most of these events occurred after S.Q.R. was sixteen years old,

their sexual relationship began when she was fifteen, and they met

several years before that. We also find it significant that

S.Q.R.'s parents put thousands of miles between Acevedo and their

child and restricted her access to technology in their repeated

efforts to block contact between them. Nonetheless, Acevedo

subverted these extensive measures, contacting S.Q.R. through

alternative channels and urging her to run away from home.

Acevedo's threatening behavior culminated in the distribution of

a sexually explicit photo of S.Q.R. and the purported torching of

her mother's car.

We have little difficulty distinguishing these

circumstances from the facts of previous cases in which we have

- 36 - vacated restrictions on parental contact. In Del Valle-Cruz, for

example, the defendant's instant offense -- failing to update his

sex offender registration -- did not itself involve a sexual act,

his underlying sexual offense was over a decade old, and the record

contained no overtly violent or threatening conduct. See 785 F.3d

at 59-64; see also United States v. Fey, 834 F.3d 1, 4 (1st Cir.

2016) (similar); United States v. Cabrera-Rivera, 893 F.3d 14, 33

(1st Cir. 2018) (vacating restriction where defendant lacked

"violent inclinations" (quoting United States v. Pabon, 819 F.3d

26, 33 (1st Cir. 2016)). Rather, the present case resembles other

cases upholding similar restrictions in light of the defendant's

recent history of violent or threatening behavior. See, e.g.,

Pabon, 819 F.3d 32-33 (upholding restriction where the defendant

had a "copious criminal history" and his offense "involved a

prolonged sexual relationship with a minor over whom he was in a

position of apparent trust and authority"); United States v.

Mercado, 777 F.3d 532, 538-39 (1st Cir. 2015) (upholding

restriction in light of the defendant's "persistent criminal

involvement"); cf. United States v. Benoit, 975 F.3d 20, 26-27

(1st Cir. 2020) (upholding restriction on defendant having

unsupervised contact with his children and distinguishing Del

Valle-Cruz partially on the ground that the relevant conduct

justifying the restriction was more recent).

- 37 - As in those cases, we also note that the "conditions

imposed by the district court do not comprise an outright ban on

the defendant's ability to associate" with his children. Mercado

777 F.3d at 539; see also Benoit, 975 F.3d at 27; Pabon, 819 F.3d

at 33. Acevedo remains able to contact his children with

supervision, and "[t]here is no basis for believing that the

probation officer will unreasonably withhold permission for the

defendant to see his own children." Mercado 777 F.3d at 539. Nor

is he without redress if that occurs. Id.; see also 18 U.S.C.

§ 3583(e)(2). Indeed, as noted during the sentencing hearing, the

restriction can be modified, including by removing it entirely if

his mental health treatment provider and the children's mothers

deem it appropriate.

Because the record offers a reasonable explanation for

restricting Acevedo's unsupervised contact with his children, see

DaSilva, 844 F.3d at 11, we will not disturb the district court's

judgment call that such a condition is presently warranted.

IV.

Finally, we consider the $5,000 special assessment and

the restitution order of $3,275 to S.Q.R.'s mother for the mother's

destroyed car.

A. Special Assessment

We review the special assessment order for abuse of

discretion. See United States v. Procell, 31 F.4th 32, 35 (1st

- 38 - Cir. 2022) (reviewing JVTA special assessment order for abuse of

discretion). Ultimately, however, Acevedo's challenge raises a

legal question, which, within our abuse of discretion framework,

we review de novo. Hood, 920 F.3d at 92.

The JVTA requires the court to "assess an amount of

$5,000 on any non-indigent person or entity convicted" of several

offenses, including the offense of coercion and enticement of a

minor to which Acevedo pleaded guilty. 18 U.S.C. § 3014(a).

Acevedo argues that he adduced copious evidence that he is indigent

within the meaning of section 3014(a). He also points out that

the district court did not make any finding as to Acevedo's

financial condition, but, instead, ordered the assessment and

stated that it was open to revisiting the issue if Acevedo was

unable to obtain future employment. The government defends the

court's "provisional" decision by pointing out that a sentencing

court is entitled to consider the defendant's future ability to

pay.

The government's defense of the court's order as

"provisional" is revealing. The statute speaks in mandatory

terms: "[T]he court shall assess an amount of $5,000 on any

non-indigent person or entity convicted of an offense" covered by

the statute. 18 U.S.C. § 3014(a) (emphasis added). As other

circuits have concluded, this language means that "the district

court has no choice but to impose the $5,000 assessment if it

- 39 - determines that the defendant is non-indigent. And the opposite

is also true: the district court cannot impose the assessment on

an indigent defendant." United States v. Shepherd, 922 F.3d 753,

757 (6th Cir. 2019); see also United States v. Kibble, No. 20-

4106, 2021 WL 5296461, at *3 (4th Cir. Nov. 15, 2021) (stating

that "a district court must make a finding [regarding indigency]

before imposing the $5,000 special assessment pursuant to the JVTA"

(emphasis added)). To be sure, the indigency finding need not be

express, so long as the "record is sufficient to permit appellate

review." United States v. Rowe, 268 F.3d 34, 39 (1st Cir. 2001);

see also Shepherd, 922 F.3d at 760 (applying this principle in the

JVTA context). But "[t]here is a difference between an implicit

finding of non-indigency and no finding at all," Kibble, 2021 WL

5296461, at *4, and, hence, the record must confirm that such an

implicit finding occurred. Here, the government does not even

attempt to suggest that the court made an implicit indigency

finding, instead admitting that "[i]n effect, the district court

deferred ruling on indigency."

The record supports that characterization. At the

sentencing hearing, the court asked for the probation officer's

evaluation of Acevedo's indigency, and the officer responded that

"at this time we don't have enough information," recommending that

the court instead "give [Acevedo] a chance to get employment"

before "mak[ing] an assessment." The court then overruled

- 40 - Acevedo's objection to the special assessment, stating that it

would "reconsider" the fine "if Mr. Acevedo can later indicate

that he will not be able to pay the $5,000 because of inability to

have a job."15 Contrary to the government's suggestion, the court's

reference to Acevedo's future employment did not assess his "future

earning potential to render him non-indigent." Procell, 31 F.4th

at 38. The district court did not make any finding of

non-indigency premised on Acevedo's employment prospects, instead

indicating that it would make a future indigency finding based on

Acevedo's actual employment outcomes.

The court thus erroneously imposed the special

assessment without any finding regarding Acevedo's indigency, and,

consequently, we vacate the $5,000 assessment. Acevedo further

argues that the record establishes his indigency: he has limited

income, receives SNAP benefits, lacks assets, and has burdensome

child support obligations. That determination properly lies with

the district court in the first instance, however, and we therefore

remand the issue to the district court. See United States v.

Irizarry-Colón, 848 F.3d 61, 70 (1st Cir. 2017).

15 Acevedo notes that, as a consequence of the court's decision

to assess the fine but "defer" an indigency finding, Acevedo is presently obligated -- but purportedly unable -- to pay the fine, which means interest may be unnecessarily accruing.

- 41 - B. Restitution

Finally, Acevedo challenges the restitution order of

$3,275 for the destruction of S.Q.R.'s mother's car. We disagree

with the government that the restitution order should be reviewable

only for plain error. The district court granted the government's

restitution request -- made in a post-sentencing memo -- before

Acevedo had an opportunity to file a timely opposition. Federal

Rule of Criminal Procedure 51(b) provides that "[i]f a party does

not have an opportunity to object to a ruling or order, the absence

of an objection does not later prejudice that party." The

government's contention that Acevedo forfeited his objection

because he had prior notice that some restitution might be awarded

in unavailing. He had no notice of the issue on appeal -- whether

he owed S.Q.R.'s mother restitution for her car -- until the

government's post-sentencing memo. We thus review the restitution

order for abuse of discretion, see, e.g., United States v.

Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018), meaning that, once

again, our review is functionally de novo since Acevedo's appeal

concerns a legal question, see Hood, 920 F.3d at 92.

Acevedo argues that this restitution order is improper

because the Mandatory Victims Restitution Act ("MVRA") authorizes

restitution to be paid to the "victim" of a crime,16 see 18 U.S.C.

The MVRA also authorizes restitution to non-victims "if 16

agreed to by the parties in a plea agreement." 18 U.S.C.

- 42 - § 3663A(a)(1), (b)(1), yet the district court identified only

S.Q.R. as a victim, with her mother being S.Q.R.'s

"representative." The government responds that S.Q.R.'s mother

was a victim within the statutory definition and the district court

understood her as such, and, in any event, she may receive

restitution as S.Q.R.'s representative.

The MVRA defines a victim as "a person directly and

proximately harmed as a result of the commission of an offense for

which restitution may be ordered . . . ." Id. § 3663A(a)(2). On

the face of this definition, we can understand why the government

regards S.Q.R.'s mother as a victim.17 Whether, in our view, the

facts show that S.Q.R.'s mother satisfies the statutory definition

of "victim" is not the relevant question on appeal, however.

§ 3663A(a)(3). Here, the plea agreement does not contemplate restitution to S.Q.R.'s mother. 17 The MRVA, as relevant here, "appl[ies] in all sentencing proceedings for convictions of, or plea agreements relating to charges for, any offense-- (A) that is-- (i) a crime of violence, as defined in [18 U.S.C. § 16] [or] (ii) an offense against property . . . ." 18 U.S.C. § 3663A(c)(1). Acevedo was not charged with an offense against property, and we have not opined on whether any of Acevedo's charged offenses qualify as a "crime of violence." But see United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001) (holding that each of the offenses relevant to this appeal is a "crime of violence"); see also United States v. Williams, 529 F.3d 1, 5 (1st Cir. 2008) ("[I]llicit sexual activity between an adult and a minor . . . poses a significant risk that force will be used in the consummation of the crime."). Nor is it clear that the burning of the car is sufficiently related to the charged offenses to qualify. Acevedo, however, has not raised these issues, and we therefore consider only whether S.Q.R.'s mother is statutorily eligible to receive restitution.

- 43 - Because such a factfinding properly lies with the district court

in the first instance, see Irizarry-Colón, 848 F.3d at 70, the

question is whether the district court found S.Q.R.'s mother to be

a victim and whether, if not, it properly awarded her restitution

anyway.

During the sentencing hearing, the district court

expressly identified only one victim: S.Q.R., describing S.Q.R.'s

mother not as a victim, but as S.Q.R.'s representative. There is

nothing else in the record from which we can infer that the

district court nonetheless made an implicit finding that S.Q.R.'s

mother is herself a victim when entering its restitution order.

The government points out that the PSR identified both S.Q.R. and

her mother as victims, but, of course, a district court is not

required to agree with the PSR, and the district court notably

departed from the language of the PSR in describing only S.Q.R. as

Acevedo's victim. Indeed, the court referred in the singular to

"the victim" throughout the sentencing hearing, always in

reference to S.Q.R. In the government's post-sentencing

memorandum, moreover, it likewise referenced one "victim," meaning

S.Q.R., and at one time described the damaged property as "her

mother's car," while at other times referring to the car as

S.Q.R.'s property.18 In the district court's subsequent

To the extent the district court premised its restitution 18

order on the understanding that the car was S.Q.R.'s property,

- 44 - unexplained order granting restitution, it again ordered Acevedo

to pay restitution to "the victim." In short, on this record, we

cannot conclude that the district court made a finding, express or

implicit, that S.Q.R.'s mother is a victim within the statutory

definition.

The government argues, in the alternative, that S.Q.R.'s

mother was entitled to receive restitution for her damaged property

as S.Q.R.'s representative. The MVRA provides that "[i]n the case

of a victim who is under 18 years of age . . . the legal guardian

of the victim . . . may assume the victim's rights under this

section." 18 U.S.C. § 3663A(a)(2). We have not previously

considered whether this text entitles a victim's representative to

restitution for the representative's own losses, but several other

circuit courts have rejected that interpretation. See United

States v. Casados, 26 F.4th 845, 853 (10th Cir. 2022) ("[The MVRA]

limits restitution to losses incurred by the victim, and the

victim's representative assumes the right to receive restitution

for exactly those losses incurred by the victim, and not [the

representative's] own losses."); United States v. Wilcox, 487 F.3d

1163, 1177 (8th Cir. 2007) ("The section does not allow the legal

such a finding would be clearly erroneous, as the record makes clear that the car belonged to S.Q.R.'s mother, not S.Q.R.

- 45 - guardian to substitute [the guardian's] own losses for those of

the victim.").19

We agree. The MRVA authorizes a victim's representative

only to "assume the victim's rights under this section." 18 U.S.C.

§ 3663A(a)(2) (emphasis added). In other words, the statute

authorizes a representative to collect the restitution owed to the

victim for losses the victim suffered. It does not separately

authorize restitution for the losses of the victim's

representatives. The rest of section 3663A confirms our reading.

The statute authorizes "restitution to the victim." Id.

§ 3663A(a)(1) (emphasis added). As relevant to this case, the

statute requires restitution for "damage to or loss or destruction

of property of a victim," id. § 3663A(a)(2) (emphasis added), and

to "reimburse the victim for lost income and necessary child care,

transportation, and other expenses incurred during participation

in the investigation or prosecution of the offense or attendance

at proceedings related to the offense," id. § 3663A(b)(4)

(emphasis added). The statute also specifies that it is only

applicable where "an identifiable victim or victims has suffered

19By contrast, in United States v. Pizzichiello, the Ninth Circuit held that a deceased victim's family could recover restitution for their own travel expenses, reasoning that if the victim had survived, he would have incurred travel expenses of his own. See 272 F.3d 1232, 1241 (9th Cir. 2001). As the Tenth Circuit notes in Casados, see 26 F.4th at 852, Pizzichiello does not engage with the statutory text whatsoever and is thus not a persuasive authority on the statute's plain meaning.

- 46 - a physical injury or pecuniary loss." Id. § 3663A(c)(1)(B)

(emphasis added). And it only contemplates recovery for

non-victims when specifically provided by a plea agreement. Id.

§ 3663A(a)(3).

Simply put, any right of recovery assigned to a victim's

representative must relate to a loss suffered by that victim, as

the statute describes the term. Since the district court did not

make any finding that S.Q.R.'s mother, in addition to being

S.Q.R.'s representative, is also a victim of Acevedo's charged

conduct in her own right, we reject the government's contention

that she is nonetheless entitled to recover for her own losses

solely on account of being S.Q.R.'s representative.

The restitution award was thus erroneous. Acevedo asks

that we strike the award, without remand. We disagree that that

is the proper remedy. As we read the record, the district court

never made a finding, one way or the other, about whether S.Q.R.'s

mother meets the statutory definition of a victim entitled to

restitution. Since such factfinding is the domain of the

sentencing court, we will vacate the restitution award and remand

the issue for further consideration. See Casados, 26 F.4th at 854

(taking the same approach).

* * *

In sum, we affirm Acevedo's 292-month sentence and the

condition of supervised release restricting Acevedo from having

- 47 - unsupervised contact with his children. We vacate, however, the

special assessment under the JVTA and the restitution order and

remand those issues to the district court for proceedings

consistent with this opinion.

So ordered.

- 48 -