Federal Corner: No Automatic Sentences of Lifetime Supervision – By F. R. Buck Files Jr.

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Fernando Fraga had a partial victory at the United States Court of Appeals for the Fifth Circuit on January 10, 2013. A panel of the Circuit held that United States District Judge Janis Graham Jack’s a sentencing error in automatically imposing a lifetime sentence of supervised release affected the defendant’s substantial rights. The Court vacated the order pertaining to Fraga’s lifetime term of supervised release and remanded the case for further proceedings on this issue. __ F.3d __ (5th Cir. 2013) [Panel: Circuit Judges Higginbotham, Smith and Elrod (Opinion by Judge Higginbotham)].

[In the United States District Court for the Southern District of Texas]

Pursuant to a written plea agreement, Fraga pled guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250 (a). The government agreed (1) to recommend that Fraga receive maximum credit for acceptance of responsibility and a sentence of imprisonment within the applicable guideline range and (2) to recommend a reduction in Fraga’s sentence if Fraga provided substantial assistance to the Government. At the time of his guilty plea, Fraga admitted that he had lived in Texas since April 2009, without registering, and that he knew he was supposed to register as a sex offender but did not do so.

After a sentencing hearing, Judge Jack imposed a term of 27 months imprisonment and a lifetime of supervised release. Fraga gave notice of appeal.

[At the United States Court of Appeals for the Fifth Circuit]

The Court held that the 27 month sentence was both procedurally and substantively reasonable; however, the Court found that Judge Jack had committed error in her imposition of a lifetime term of supervised release.

Judge Higginbotham’s opinion reads, in part, as follows:

[The Probation Officer’s Initial Calculation of the
Advisory Guideline Range and Fraga’s Criminal History]

The amended Presentence Investigation Report (“PSR”) calculated a base level of 14, reduced by two levels for acceptance of responsibility, resulting in a total offense level of 12 as well as a criminal history category of II. It indicated a guideline range of 12 to 18 months of imprisonment and a supervised re­lease term of five years to life. The PSR included a de­tailed account of Fraga’s criminal history, which, in ad­di­tion to the 1994 conviction for sexually assaulting a 14-year-old girl, includes nine prior convictions. With respect to the conviction that formed the basis of Fraga’s duty to register, the PSR showed that in 1994, at the age of 18, Fraga was found guilty of sexually assaulting a 14-year-old girl, although he claimed she told him she was 16 years old. He was convicted of sexual assault and sentenced to three years of probation. His probation was revoked in 1996, and he was sentenced to serve one year in prison, followed by four years of intensive sanctions, and he was required to register as a sex offender until March 14, 2016. In addition, between 1991 and 2007, Fraga was convicted of battery, disorderly conduct (on four occasions), burglary and theft, operating a vehicle without carrying a license, and operating a vehicle under the influence. Two of those disorderly conduct violations involved assaults on women, as did the 1994 conviction for sexual assault of a minor.

        Moreover, the PSR contained accounts of other abusive conduct, directed at women, that had not resulted in a conviction. In particular, it indicated an allegation of assault in September 1999, an allegation of sexual assault in August 2002, and another allegation of assault in August 2002. The two August 2002 allegations were made by the same woman. As a result of the incident in September 1999, Fraga was charged with Disorderly Conduct–Domestic Violence. As a result of the two incidents in August 2002, Fraga was charged with Second Degree Sexual Assault/Use Force and Disorderly Conduct–Habitual Criminality. All three cases were dismissed for unknown reasons. In interviews with the probation officer, both women apparently indicated that they dropped the charges at the urging of Fraga’s family. The probation officer also reported an additional allegation of domestic violence in November 2010. That woman ultimately decided not to file charges against Fraga, and the case was closed.

[The Advisory Guideline Level]

The amended Presentence Investigation Report (“PSR”) calculated a base level of 14, reduced by two levels for acceptance of responsibility, resulting in a total offense level of 12 as well as a criminal history category of II. It indicated a guideline range of 12 to 18 months of imprisonment and a supervised release term of five years to life.

[The Probation Officer’s
Sentencing Recommendation]

The probation officer ultimately recommended that Fraga be sentenced to a 27-month term of imprisonment, a lifetime term of supervised release, and be assessed a $100 special assessment. The probation officer reasoned that Fraga’s criminal history score under-represented his criminal history and found Fraga’s “continued pattern of alcohol abuse, domestic violence, and sexual assault” concerning. As such, she found an upward departure to a 27-month term of imprisonment was warranted to protect the public and deter future criminal acts. Moreover, she recommended a lifetime of supervised release in order to ensure Fraga registered as a sex offender, and because Fraga’s offense of conviction was a sex offense.

 [The Prosecutor’s Argument at Sentencing]

Pursuant to the written plea agreement, the prosecutor pointed out that Fraga had been willing to cooperate with the Government in prosecuting a child pornography production case. Although Fraga had agreed to testify against the defendant in that case, his testimony was ultimately unnecessary. Thus, although the prosecutor could not move for a downward departure based on substantial assistance, he requested that the sentencing judge consider Fraga’s willingness to cooperate and recommended a sentence at the low end of the Guidelines range.

[One of Judge Jack’s Comments at Sentencing]

The sentencing judge ultimately sentenced Fraga to a 27-month term of imprisonment, followed by a lifetime of supervised release. In doing so, she imposed an upward variance of nine months, under 18 U.S.C. § 3553(a), above the Guideline range of 12 to 18 months. The sentencing judge noted that she “[didn’t] even know if that’s high enough to deter [Fraga’s] future criminal conduct, and to protect the public, which is of vital concern to this Court.”

[The Alvarado Error]

Although we find Fraga’s prison sentence both procedurally and substantively reasonable, we must separately consider his sentence to a lifetime term of supervised release in light of this Court’s recent decision in United States v. Alvarado. In Alvarado, this Court found, under plain error review, that the sentencing judge had “erred by automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding Alvarado’s crime.” At re-arraignment, the sentencing judge had declared: “I’ve never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography.”

The Alvarado court found:

This statement suggests that the district court judge au­to­matically defaulted to the imposition of a lifetime term. The policy statement within the Guideline recommends a statutory maximum term of supervised release (life) if the conviction is a sex offense. The statute, however, provides for a range of five years to a lifetime term of su­per­vi­sion. Therefore, Congress clearly contemplated that there would be instances where less than the maximum would be reasonable. The judge, by her own admission, never considered the possibility of anything less than life­time supervision. Hence, the error was plain. Clearly, the imposition of a lifetime of supervised release affects substantial rights. And where a judge admits to the au­to­matic imposition of a sentence, without regard for the specific facts and circumstances of the case or the range provided for in the statute, then it seriously affects the fairness, integrity, and public reputation of judicial proceedings.

        Similarly here, at Fraga’s re-arraignment, the sentencing judge, who also sentenced Alvarado, declared: “And I usually do give life imprisonment, life—sorry—life supervised release in these situations.” And, as in Alvarado, at the time she imposed the sentence, the sentencing judge did not give reasons for her decision to impose a lifetime term of supervised release. As such, in light of Alvarado, we must vacate the order regarding the lifetime term of supervised release and remand the case for further proceedings on that issue.

My Thoughts

  • What we have in Fraga is what I consider to be a “roadmap opinion.”
  • In his footnote 33 to the opinion, Judge Higginbotham writes: “We could arguably infer the sentencing judge’s reasons for imposing the lifetime term of supervised release from the record.” However, Alvarado dictates that such an inference is improper when the sentencing judge has “suggested that she automatically defaults to imposition of a lifetime term of supervised release.”
  • For as long as we have had the Guidelines, our Courts of Appeal have handed down opinions which set out for the district judges how it is possible for them to assess the same sentence for which they were just reversed if they will dot their I’s and cross their T’s the second time around. Will Judge Jack do that to Fraga?
  • And for all of the other defendants who are facing a potential sentence of lifetime supervision and who come before Judge Jack, don’t count on being as lucky as Fraga and Alvarado were.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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