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In an opinion by retired U.S. Supreme Court Justice David Souter, the U.S. Court of Appeals for the 1st Circuit has ordered a lower court to resentence a sex offender whose sentence length — after his supervised release was revoked — was based on the time needed to treat him. On July 6, a unanimous panel in U.S. v. Molignaro vacated Eric Molignaro’s March 2010 resentencing and remanded the case to Chief Judge Mark Wolf of the District of Massachusetts for resentencing anew. Molignaro was sentenced in January 2006 to two years in prison, plus three years of supervised release, for possession of child pornography. The court’s original conditions for his release required Molignaro to participate in a sex offender treatment program and banned him from unsupervised contact with anyone under the age of 18. Later, the conditions were modified to include residential stays at a re-entry house for criminal offenders, regular polygraph testing and restrictions on contact with his niece. The ban on unsupervised contact with minors was loosened to allow such contact if it took place in the presence an adult aware of his background and approved by the U.S. Probation Office. Wolf subsequently revoked Molignaro’s supervised release based on a petition made by the probation department. The petition claimed that Molignaro violated the rules about contact with children several times and misinformed his probation officer. He was also suspended from the sex offender treatment program required by his sentence. Wolf resentenced Molignaro to 22 additional months in prison, plus 14 months of supervised release. As the 1st Circuit noted, “Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison.” Souter, who heard the case by designation, was joined in his opinion by 1st Circuit judges Jeffrey Howard and Kermit Lipez. “We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing,” Souter wrote. Souter applied the U.S. Supreme Court’s June ruling in Tapia v. U.S., which analyzed the U.S. Code concerning prison sentences, a Sentencing Commission directive and congressional intent. “Tapia held that the caution against imprisonment for rehabilitation is a prohibition not only to a decision to commit for that purpose, but to order a longer, rather than shorter term of any commitment in order to provide adequate time for a prison treatment course,” Souter wrote. In contrast, the sentencing court does have such authority “when a course of rehabilitation or treatment is the object of a sentence of probation or supervised release.” Souter observed that the particulars of the Molignaro case illustrate the significance of the distinction. Although the district court recommended that the Bureau of Prisons assign Molignaro to a particular prison where he could receive 18 months of sex offender therapy, Molignaro was sent to a prison with no treatment program. “We therefore think that on a fair reading of Tapia, the inference of legislative intent manifested by withholding judicial post-imprisonment authority must be held to trump any inference otherwise possible from the omission of the rehabilitation caveat in the resentencing provision [of the code],” Souter wrote. “We feel bound to conclude that rehabilitation concerns must be treated as out of place at a resentencing to prison, just as ordering commitment initially.” Molignaro’s lawyer, Miriam Conrad of the Federal Public Defender Office in Boston, said that the fact that Congress did not authorize courts to compel federal prisons to provide treatment “reinforces the view that treatment is not an appropriate reason for imposing or lengthening a term of imprisonment.” “We look forward to the opportunity to have Mr. Molignaro resentenced in light of the 1st Circuit’s decision, interpreting the Supreme Court’s recent decision in Tapia v. U.S. to apply to revocations of supervised release, as well as initial terms of imprisonment,” Conrad said. The U.S. Attorney’s Office for the District of Massachusetts declined to comment. Sheri Qualters can be contacted at [email protected].

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