Defense Win: Appeal Waiver Did Not Preclude Challenge to Supervised Release Conditions; Condition was Unjustified

U.S. v. Lonjose, 2011 WL 6811038 (12/28/11) (N.M.) (Published) - A a defense rare victory in the 10th on appeal waiver and supervised release condition issues.

First, the 10th ruled the standard appeal waiver did not apply to an appeal of a modification of supervised release conditions. The waiver only applied to the right to appeal the initial judgment. The modification procedure is a distinct post-conviction proceeding, like a § 3582(c) proceeding, which creates a new right to appeal. We'll see if this ruling prompts the government to devise a new appeal waiver, especially given a footnote which states that more precise waivers have been found to waive post-conviction appeals.

Second, the record did not unambiguously support a finding of compelling circumstances that the defendant was a danger to his 6-year-old son so as to justify interference with the right to familial associations by banning contact with his son and other minor male family members, absent written permission from the probation officer. That the defendant had sexually abused underage girls did not show he was a danger to underage boys. That the defendant could contact his son with the probation office's permission and that the district court told the probation office to "keep a close eye so that the defendant could have contact at the earliest opportunity" did not change the fact that the condition impermissibly infringed on the defendant's ability to freely associate with his family.