Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 17-1021

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID W. LACOUTURE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Stahl, and Barron, Circuit Judges.

Joushua R. Hanye, on brief for appellant. Alexia R. De Vincentis, Assistant U.S. Attorney, and William D. Weinreb, Acting U.S. Attorney, on brief for appellee.

January 31, 2018 STAHL, Circuit Judge. David Lacouture appeals his 74-

month sentence for failure to register under the Sex Offender

Registration and Notification Act ("SORNA"), in violation of

(a). Lacouture challenges the district court's

application of an eight-level enhancement to his sentence. The

district court imposed the enhancement because it found Lacouture

had committed a sex offense against a seven-year-old child in

Missouri while unregistered. Lacouture also challenges the

imposition of a special condition of supervised release. After

careful consideration, we affirm.

I.

We review a district court's factual findings supporting

the application of a sentencing enhancement for clear error.

United States v. Savarese,

(1st Cir. 2012). "It is

the government's burden at sentencing to prove sentencing

enhancement factors by a preponderance of the evidence, and a

district court may base its determinations on 'any evidence that

it reasonably finds to be reliable.'" United States v. Almeida,

(1st Cir. 2014) (quoting United States v. Walker,

(1st Cir. 2011)).

- 2 - This is Lacouture's second appeal to this court.1 We

vacated Lacouture's first sentence, which included the same eight-

level enhancement, and remanded to the district court in order for

it to clarify whether it found the out-of-court statements the

then eight-year-old child made in a Sexual Abuse Investigative

Network ("SAIN") interview reliable and why it found these

statements reliable. United States v. Lacouture,

(1st Cir. 2016). Without an explicit finding from the district

court on this issue, we could not determine "whether the judge

clearly erred in finding that the sentencing enhancement applied

on the basis of the evidence."

. We observed that, to

assist in determining the reliability of the child's responses,

"the district court may wish to request that the government produce

the video recording of the SAIN."

at 192 n.8. The government

had previously provided only the written transcript of the SAIN.

On remand, the government submitted the video of the

SAIN to the court, as well as an anatomical drawing of a girl used

by the child during the interview.2 After reviewing the evidence,

the district court again found that Lacouture had committed a sex

offense while he was unregistered. The district court based that

1 For a more detailed recitation of the facts and history of this case, see United States v. Lacouture,

(1st Cir. 2016). 2 The government has also included the video as a part of its sealed submissions to this court.

- 3 - finding "on statements of the then eight-year-old victim in the

SAIN." The district court found the child's responses in the video

to be "credible, clear and consistent" and found that the child

"adequately identified the Defendant as the perpetrator."

Because the district court provided an additional

explanation, based on a supplemented record, as to why it found

the child's statement reliable, we are now able to conclude that

the district court's factual findings in support of the enhancement

were not clearly erroneous. At resentencing, the district court

explicitly stated that it found the child's responses in the

interview "credible, clear and consistent." In imposing the

enhancement, the district court also relied on the statements of

the child's mother and Lacouture himself. The presentence report

described how when Lacouture was first asked about the alleged

incident, he denied ever touching the child, but in a subsequent

interview, he recalled an instance where he picked the child up

off the ground by placing his arm underneath her "crotch area."

Finally, the district court considered Lacouture's history of sex

offenses.3 Based on this evidence, the district court concluded

that the government had shown, by a preponderance of evidence,

3 As we observed in his first appeal, such propensity evidence, which "is normally inadmissible in criminal trials . . . is admissible in cases involving child molestation" and was offered here only "for purposes of sentencing." Lacouture,

n.4.

- 4 - that Lacouture committed a sex offense against the child while he

was unregistered.

By explaining why it found the child's responses in the

SAIN interview reliable, the district court addressed the precise

ambiguity that gave us pause in Lacouture's first appeal. Although

Lacouture continues to point to apparent inconsistencies in the

child's account, we believe the district court performed its duty

to resolve these potential conflicts and provided a sufficient

explanation as to why it reached the conclusion it did. "'[W]here

there is more than one plausible view of the circumstances, the

sentencing court's choice among supportable alternatives' is not

clearly erroneous and a reviewing tribunal cannot disturb it."

United States v. Correa,

(1st Cir. 1997) (quoting

United States v. Ruiz,

(1st Cir. 1990)).4 We

find no clear error in the district court's finding and therefore

affirm the district court's application of the enhancement.

II.

Despite the limited nature of our earlier remand,

Lacouture at resentencing sought to lodge a new objection to one

of his conditions of supervised release. When Lacouture was first

4 We further note, as we did in his first appeal, that "recounting a sex crime can be a traumatic experience that may make telling a linear story difficult, and that this hardship is compounded when the victim is a child." Lacouture,

n.6.

- 5 - sentenced, the district court imposed a condition of supervised

release preventing Lacouture from possessing an internet capable

cellular phone without the prior approval of the probation office.

Lacouture did not object to this condition and did not raise any

challenge to this condition in his first appeal to this court. At

the resentencing hearing, after the sentence had been announced,

Lacouture's counsel raised an oral objection to the condition,

arguing that the condition ran afoul of our decision in United

States v. Hinkel,

(1st Cir. 2016).5 Although the

district court permitted Lacouture to file a short memorandum

addressing the issue, it ultimately retained the condition.

Under the law of the case doctrine, Lacouture forfeited

his objection to the condition of supervised release when he failed

to raise the issue in his first appeal to this court. As we have

long held:

a legal decision made at one stage of a civil or criminal case, unchallenged in a subsequent appeal despite the existence of ample opportunity to do so, becomes the law of the case for future stages of the same litigation, and the aggrieved party is deemed to have forfeited any right to challenge that particular decision at a subsequent date.

United States v. Bell,

(1st Cir. 1993); see also

United States v. Medina-Villegas,

(1st Cir. 2012)

5 Lacouture did not challenge the condition in the sentencing memorandum he submitted for the resentencing.

- 6 - ("The law of the case doctrine 'bars a party from resurrecting

issues that either were, or could have been, decided on an earlier

appeal.'" (quoting United States v. Matthews,

(1st Cir. 2011))). If Lacouture had wished to challenge the

district court's imposition of the condition, he needed to raise

the issue in his first appeal.

In his reply brief, Lacouture contends that the

government waived its law of the case argument by failing to raise

it below, citing our decisions in United States v. Lorenzo-

Hernández,

(1st Cir. 2002) and United States v.

Olivero,

, 41 n.4 (1st Cir. 2009). We have since said

that those cases "should not be understood to suggest that the

government waives all law of the case arguments by failing to raise

them in the district court" and have noted that we retain the

ability to "raise the law of the case issue sua sponte if we deem

it appropriate." United States v. Wallace,

, 90 n.6

(1st Cir. 2009). We find application of the doctrine appropriate

in this case.

In the alternative, Lacouture argues that Hinkel

constituted a change in "controlling legal authority," Bell,

, such that he did not have an opportunity to raise the

issue before Hinkel was decided. We disagree. Although Hinkel

addressed and struck down a somewhat similar condition of

supervised release restricting internet usage, it was not a change

- 7 - in controlling legal authority. At most, Hinkel extended earlier

decisions by this court striking down broad bans on internet and

computer use. See, e.g., United States v. Ramos,

(1st Cir. 2014); United States v. Perazza-Mercado,

(1st Cir. 2009). Lacouture had a fair opportunity at his first

sentence to raise an objection to the condition by relying on these

earlier decisions.

III.

For the foregoing reasons, we affirm.

- 8 -