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1st Circ. Resolves Sentencing Dispute for Failing to Register as a Sex Offender

By Jonathan R. Tung, Esq. on April 13, 2016 | Last updated on March 21, 2019

In USA v. Pabon, the First Circuit helped clarify that under applicable laws, sex offenders must not violate the registration requirements of local laws of sex offenders or of the Sex Offender Registration and Notification Act. Defendants would do well to understand that the more egregious their criminal background is, the harder it is to secure sympathy from the court.


Luis Pabon pled guilty for violating registration requirements of the Sex Offender Registration and Notification Act. The lower court sentenced Pabon to 30 months in prison and five years of supervised release with attendant conditions which restricted Pabon's association with minors. It also required him to participate in offender treatment programs and to submit to polygraph testing.

Pabon believed that these conditions of his supervised release were onerous and unreasonable in light of 18 U.S.C. 2583(d). This provision requires that "special conditions cause no greater deprivation of liberty than is reasonably necessary to achieve the goals of supervised release. In other words, Pabon believed that the conditions of his release unreasonably restricted his liberty and was far greater than the countervailing state interest to keep Pabon under wraps.

"Staggering" Criminal History

Unfortunately for Pabon, he had a "staggering" criminal history which also included another previous SORNA violation. When balancing the liberty needs of the defendant against the countervailing interests of the public, the court weighed several factors including the probability that the defendant would offend again as well as the retributive benefits to the defendant.

Pabon appeared to have such an overwhelming history of criminal offenses that this factor weighed heavily against him. He appeared so far gone that retribution was a dim prospect. In fact, he was essentially in the highest criminal offender category under applicable sentencing guidelines. The First Circuit affirmed and held that in light of Pabon's substantial criminal history, the district court did not commit plain error when sentencing the defendant.

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