United States Court of Appeals For the First Circuit

Nos. 20-1905, 20-1907

UNITED STATES OF AMERICA,

Appellee,

v.

HERMIN RODRIGUEZ-MONSERRATE, a/k/a Cano, a/k/a Canito.

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Thompson, Kayatta, and Barron, Circuit Judges.

Arza Feldman, with whom Feldman and Feldman was on brief, for appellant. Robert P. Coleman III, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

December 30, 2021 KAYATTA, Circuit Judge. In this consolidated appeal,

Hermin Rodriguez-Monserrate raises a host of procedural and

substantive challenges to two sentences he received at hearings

conducted via videoconference during the COVID-19 pandemic. We

find that all but one of his challenges are waived or otherwise

without merit and that his remaining challenge is not yet ripe for

review. Our reasoning follows.

I.

This case arises out of the following events. In 2019,

law enforcement agents saw a gun and magazines on a ledge near a

window to the apartment occupied by Rodriguez's romantic partner.

The partner allowed agents to search her apartment while Rodriguez

was present. During the search, agents found ammunition,

marijuana, face masks, a radio scanner, and various gun holsters.

Rodriguez was arrested and admitted that most of these items were

his, though he denied owning the gun and associated magazines found

on the ledge.1 Rodriguez further admitted that, at the time of

his arrest, he had been convicted of a felony and was serving a

term of supervised release.

Rodriguez's arrest led to two actions against him.

First, the government charged him with committing a new crime:

1 Rodriguez's partner told the agents the gun belonged to Rodriguez. Neither party contends that this factual dispute is salient to the issues on appeal.

- 2 - possessing ammunition as a convicted felon in violation of

(g)(1). Second, the government sought revocation of

his supervised release.

At an in-person hearing in February 2020, Rodriguez

pleaded guilty to the section 922(g)(1) charge pursuant to a plea

agreement in which the parties agreed to seek a prison term of

30 months. The agreement specified that Rodriguez waived his

"right to appeal any aspect of [the] case's judgment and sentence,

including but not limited to the term of imprisonment . . . and

conditions of supervised release" so long as his sentence did not

exceed 37 months.

Rodriguez's sentencing hearing on the section 922(g)(1)

conviction was scheduled to be held on the same day as the hearing

on the government's request to revoke his supervised release. By

the time those hearings were to occur, in August 2020, the COVID-

19 pandemic had caused the United States District Court for the

District of Puerto Rico to continue all in-person proceedings until

October 2020. See Third Am. Order Continuing Civil & Criminal

Proceedings, Misc. No. 20-0088 (GAG) (Aug. 25, 2020), ECF No. 21.2

Accordingly, the district court sought Rodriguez's consent to

proceed via videoconference. The court obtained that consent in

2 Both hearings had already been continued once before due to the COVID-19 pandemic; they were previously scheduled to occur on May 27, 2020.

- 3 - two ways. First, Rodriguez filed a motion "respectfully

request[ing] th[e] court to take note of his consent and to hold

the [sentencing] hearing via videoconference." Second, at the

start of the August 2020 proceedings, the court orally confirmed

on the record that Rodriguez's "appear[ance] by video" was

"voluntary" and that he "[did] not have to appear by video." The

court told Rodriguez that he could consent to appear by video for

both his sentencing and revocation hearings. Rodriguez consented

to conducting both hearings by videoconference.

The court sentenced Rodriguez on the section 922(g)(1)

conviction to 37 months -- the upper bound of the guideline range.

The district court also imposed as one of several conditions of

supervised release a requirement that Rodriguez "shall complete

his high school education."

The court conducted Rodriguez's revocation hearing

during the same videoconference pursuant to Rodriguez's earlier

consent. The government sought a 10-month revocation sentence

based on an estimated guideline range of 4–10 months, but the

probation officer calculated the range to be 12–18 months. The

court agreed with the probation officer and imposed an 18-month

revocation sentence, to be served consecutive to the 37-month

sentence for the section 922(g)(1) conviction.

During each hearing, Rodriguez asked the court to

reconsider the pertinent sentence. The court denied each request.

- 4 - Rodriguez now brings an array of challenges to both of

his sentences.

II.

We begin with the revocation hearing and sentence.

Unimpeded by his appeal waiver, which applies only to his sentence

for the section 922(g)(1) conviction, Rodriguez raises two types

of challenges to his revocation hearing and sentence. First, he

argues that, notwithstanding his consent to proceed by

videoconference, the district court erred in conducting the

revocation hearing in that manner. Second, he argues that his

revocation sentence was procedurally and substantively

unreasonable. For the following reasons, both claims fail.

A.

Rodriguez argues that the district court erred in

conducting his revocation hearing via videoconference because

doing so was impermissible under both Federal Rule of Criminal

Procedure 32.1 and the Coronavirus Aid, Relief, and Economic

Security (CARES) Act,

Stat. 281 (2020).

Rodriguez did not raise these arguments below; rather, he consented

to proceeding via videoconference, telling the district court that

he "want[ed] to appear here and now." Hence, Rodriguez is at best

entitled to plain error review. See United States v. Delgado-

Sánchez,

(1st Cir. 2017). In his opening brief on

appeal, Rodriguez makes no attempt to satisfy that standard as to

- 5 - his arguments based on either Rule 32.1 or the CARES Act. Those

arguments are therefore waived. United States v. Pabon,

, 33–34 (1st Cir. 2016) (failure to address plain error standard

waives challenge); Waste Mgmt. Holdings, Inc. v. Mowbray,

(1st Cir. 2000) ("[I]ssues advanced for the first time in

an appellant's reply brief are deemed waived.").

Rodriguez also briefly asserts that proceeding by

videoconference "impacted his right to the effective and

meaningful assistance of counsel." Again, though, he made no claim

below that the particular video format employed by the court

impaired his ability to consult confidentially with his lawyer.

Indeed, he does not dispute that the district court explained, "If

you want to speak with your lawyer before I sentence you, or before

I make a decision on your revocation, please let us know, and we

will make arrangements for both of you to have a confidential

communication." Nor does Rodriguez develop on appeal any argument

as to how the format plainly impaired his ability to receive the

assistance of counsel. This argument is therefore both forfeited

and waived. See United States v. Zannino,

(1st

Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived."); Pabon, 819 F.3d at 33–34.

- 6 - B.

Rodriguez next attacks his revocation sentence on

procedural and substantive grounds. These challenges also fail.

We begin with procedural reasonableness. Rodriguez does

not direct our attention to any objection below that was

"sufficiently specific to call the district court's attention to

the asserted [procedural] error," as required to preserve for

appellate review an argument that a sentence is procedurally

unreasonable. United States v. Soto-Soto,

, 448 n.1

(1st Cir. 2017). We must therefore conclude that the argument was

not preserved, and is subject to plain error review. Because

Rodriguez does not attempt to satisfy that standard of review, his

procedural reasonableness argument is waived on appeal. Pabon,

819 F.3d at 33–34.3

In contrast, Rodriguez preserved his substantive

reasonableness challenge below by "advocat[ing] for a sentence

shorter than the one ultimately imposed." United States v. García-

Mojica,

(1st Cir. 2020) (quoting Holguin-

Hernandez v. United States,

(2020)). We

3 The crux of Rodriguez's procedural reasonableness claim seems to be that the sentencing court disregarded his arguments for leniency. We shortly return to -- and reject -- this contention. Thus, even if Rodriguez had preserved his procedural reasonableness claim before the sentencing court and had not waived it on appeal, it would fail for the reasons discussed below.

- 7 - therefore review for abuse of discretion the substantive

reasonableness of the sentence.

A sentence is substantively reasonable if it rests on "a

plausible sentencing rationale" and reaches "a defensible result."

United States v. Cox,

(1st Cir. 2017) (quoting

United States v. Martin,

(1st Cir. 2008)). The

"universe of reasonable sentences" is "expansive."

(quoting

United States v. King,

(1st Cir. 2014)). And

"[w]e have repeatedly emphasized that '[a] challenge to the

substantive reasonableness of a sentence is particularly

unpromising when the sentence imposed comes within the confines of

a properly calculated [guideline range].'" Id. at 126 (second

alteration in original) (quoting United States v. Demers,

(1st Cir. 2016)).

Rodriguez's revocation sentence is substantively

reasonable. The district court imposed a sentence within (albeit

at the high end of) the probation officer's proffered guideline

range, and Rodriguez does not argue that the range was improperly

calculated. The district court also provided a plausible rationale

for the sentence when it explained that Rodriguez's "new criminal

conduct . . . has shown his serious disrespect for the law and his

lack of commitment to make changes towards a pro-social

reintegration into society." The court determined "that a sentence

at the high end of the guidelines [was] sufficient but not greater

- 8 - than necessary in this case" given Rodriguez's "noncompliance

history and characteristics."

On appeal, Rodriguez focuses on the district court's

failure to address potentially mitigating evidence, including his

"extremely difficult childhood," his learning disability, and his

responsibilities caring for his ailing mother. But this court

"do[es] not require an express weighing of mitigating and

aggravating factors or that each factor be individually

mentioned." United States v. Lozada-Aponte,

(1st Cir. 2012). We have upheld sentences imposed after the

district court "ha[s] read the defense's sentencing memo and ha[s]

heard the defense's leniency plea." United States v. Dávila-

Bonilla,

(1st Cir. 2020). That is precisely what

happened here. Further, the presentence investigation report --

which the court referenced before the revocation hearing --

described Rodriguez's childhood, his learning disability, and his

mother's ill health/medical needs. So the fact "that the district

court did not explicitly mention [mitigating factors] during the

sentencing hearing suggests they were unconvincing, not ignored."

Lozada-Aponte,

.

III.

Rodriguez also raises a host of challenges to his

sentence on the section 922(g)(1) conviction for possessing

- 9 - ammunition. We begin with the question whether Rodriguez

effectively waived his right to appeal that sentence.

A.

Rodriguez's plea deal contained the following provision:

Defendant knowingly and voluntarily agrees that, if the total term of imprisonment imposed by the Court is 37 months or less, the defendant waives the right to appeal any aspect of this case's judgment and sentence, including but not limited to the term of imprisonment or probation, restitution, fines, forfeiture, and the term and conditions of supervised release.

Rodriguez signed the document containing this provision and, after

consulting with his lawyer off the record, confirmed he understood

that if the district court "sentence[d] [him] according to the

terms, conditions, and recommendations contained in [his] plea

agreement, [he] waive[d] and g[a]ve up [his] right to appeal [the]

sentence and the judgment in the case."

Rodriguez challenges his waiver as inadequate under

Federal Rule of Criminal Procedure 11(b)(1)(N), which requires a

district court to "inform the defendant of, and determine that the

defendant understands . . . the terms of any plea-agreement

provision waiving the right to appeal or to collaterally attack

the sentence." Because Rodriguez did not preserve any purported

Rule 11(b)(1)(N) error below, we consider his argument only on

plain error review. United States v. Morillo,

(1st

Cir. 2018). To satisfy that stringent standard, Rodriguez must

- 10 - demonstrate "(1) error, (2) that is plain, and (3) that affects

substantial rights." United States v. Borrero-Acevedo,

(1st Cir. 2008) (cleaned up) (quoting Johnson v. United

States,

(1997)). To satisfy the third prong of

this test, Rodriguez must "show a reasonable probability that, but

for the [Rule 11] error, he would not have entered the plea." Id.

at 16 (alteration in original) (quoting United States v. Dominguez

Benitez,

(2004)). If Rodriguez clears each of

these hurdles, we "may then exercise [our] discretion to notice

[the] forfeited error, but only if" the Rule 11 error "seriously

affect[s] the fairness, integrity, or public reputation of

judicial proceedings." Id. at 15 (third alteration in original)

(internal quotation marks omitted) (quoting Johnson,

).

Rodriguez alleges that the district court failed to

confirm that he "freely, knowingly and intelligently waived his

right to appeal." Rodriguez claims "eight discrete" errors with

the court's inquiry: He argues that the court did not "explain

the [waiver's] ramifications"; explain its meaning "in plain

English"; explain that "the length of the sentence would be firm

and final"; "question[] the defendant about his understanding of

the waiver"; "ask[] the defendant if he had any questions about

the waiver"; "ask[] the defendant if anyone had forced or coerced

him to waive his right to appeal"; "advise[] the defendant

- 11 - that . . . he would be statutorily entitled to free counsel" if he

proceeded to trial and appeal; or "specifically ask[] [Rodriguez]

if he had discussed the appellate waiver with counsel."

Through his objections, Rodriguez effectively describes

his ideal plea colloquy. But while he is correct that

Rule 11(b)(1)(N) requires a district court to ascertain that a

defendant understands and freely accepts his plea waiver, we have

"refrain[ed] from prescribing any mandatory language for such an

inquiry" so long as "the court's interrogation [is] specific enough

to confirm the defendant's understanding of the waiver and [his]

acquiescence in the relinquishment of rights that it betokens."

United States v. Teeter,

, 24 n.7 (1st Cir. 2001).

None of Rodriguez's complaints about this colloquy rises

to the level of establishing error, plain or otherwise.

Rodriguez's colloquy was quite similar to the one we upheld under

a less deferential standard of review in United States v. De-La-

Cruz Castro,

(1st Cir. 2002). In that case, the court

"asked Cruz Castro and his counsel if he knew 'that by entering

into this plea agreement and entering a plea of guilty [he] would

have waived or given up [his] right to appeal all or part of [his]

sentence,'" and "Cruz Castro answered, 'Yes, sir.'"

(alterations in original). "The district court also determined

that Cruz Castro's counsel had 'explained this agreement to Cruz

Castro in Spanish and [was] satisfied that he [understood] it.'"

- 12 -

(alterations in original). We upheld the waiver in that case

despite the district court's "indicat[ion] that [the defendant]

could appeal 'in some circumstances,'"

-- a potentially

confusing qualification not given here.

At Rodriguez's in-person change-of-plea hearing, the

prosecutor explained the plea agreement, including its "waiver of

appeal which indicates that the Defendant knowingly and

voluntarily agrees that if the total term of imprisonment is

37 months or less, the Defendant waives his right to appeal this

case's judgment." The court asked Rodriguez if he "agreed with

the [prosecutor's] summary" of the agreement, and Rodriguez said

"Yes." The court then confirmed that Rodriguez's counsel had

"explain[ed] the plea agreement" to Rodriguez "[w]ord for word"

"in Spanish," and that counsel was "satisfied that [Rodriguez]

underst[ood] it." Rodriguez then confirmed that he understood the

plea agreement's terms.

The court then asked Rodriguez whether he understood the

appellate waiver specifically. Rodriguez initially professed some

uncertainty and was permitted to consult with counsel off the

record. Afterward, Rodriguez confirmed that he understood that he

would "waive and give up [his] right to appeal [the] sentence and

the judgment in the case" if the judge sentenced him "according to

the terms, conditions, and recommendations contained in [the] plea

agreement." The court then ascertained that no one had "made any

- 13 - promise or assurance to . . . induce" Rodriguez to sign the plea

agreement, that no one had "attempted in any way to force" him to

do so, and that he was "pleading guilty of [his] own free will."

Most of Rodriguez's numerous challenges to the colloquy

boil down to one broad contention: that the court should have done

more to "explain to him, in plain English, what [the] waiver meant,

namely, the loss of appellate rights." But the court asked

Rodriguez: "[D]o you understand that if I sentence you according

to the terms, conditions, and recommendations contained in your

plea agreement, you waive and give up your right to appeal your

sentence and the judgment in the case?" We think this language is

sufficiently clear -- indeed, it is perhaps clearer than language

we have upheld in other cases. See, e.g., United States v.

González-Colón,

(1st Cir. 2009) ("Do you

understand that by pleading guilty, you will be held accountable

to the waiver of appeal clause that appears in your respective

plea agreements?"); United States v. Gil-Quezada,

(1st Cir. 2006) ("Do you understand that by entering into this

plea agreement you may have waived or given up your right to appeal

or collaterally attack all or part of the sentence?").

Beyond that, the court ensured that Rodriguez and his

counsel had reviewed the plea agreement "[w]ord for word" "in

Spanish" before Rodriguez signed it, and that Rodriguez had freely

- 14 - consented to the agreement. In short, we are satisfied that the

court did not plainly err in conducting its 11(b)(1)(N) inquiry.

B.

Finding that the district court did not plainly err in

performing its duties under Rule 11(b)(1)(N) does not quite end

our analysis. A valid appeal waiver does not necessarily prevent

us from averting a miscarriage of justice. Morillo, 910 F.3d at

3–4. And we have explained that, "[a]s a subset of this premise,"

we may "refuse to honor" a valid appeal waiver "when the district

court plainly errs in sentencing." Teeter,

. So we

turn to the substance of Rodriguez's complaints about his

sentencing. We do so not to search again for error per se, but to

make sure that there is no error so "egregious" as to warrant

setting aside the valid appeal waiver. United States v. Goodman,

(1st Cir. 2020) (quoting United States v. Villodas-

Rosario,

(2018)).

Rodriguez argues that conducting his sentencing hearing

via videoconference was impermissible under Federal Rule of

Criminal Procedure 43 and the CARES Act notwithstanding his

consent.4 For the following reasons, we see no egregious error

here rising to the level of a miscarriage of justice.

Rodriguez also gestures at an ineffective assistance of 4

counsel claim, largely reprising the sparse argument discussed above. It fails for the reasons already described.

- 15 - We begin with Rule 43. Federal Rule of Criminal

Procedure 43(c) provides that a defendant "who ha[s] pleaded

guilty . . . waives the right to be present" at sentencing when he

"is voluntarily absent during sentencing" "in a noncapital case."

A fortiori, it is by no means clear that a defendant could not opt

to appear by videoconference, rather than not at all as permitted

by the rule. In resisting this conclusion, Rodriguez points to

cases in which several of our sister circuits concluded that

Rule 43 does not permit sentencing via videoconference where the

defendant has not affirmatively consented to that format. See

United States v. Williams,

, 763–65 (6th Cir. 2011);

United States v. Torres-Palma,

(10th Cir.

2002); United States v. Lawrence,

, 302–05 (4th Cir.

2001); United States v. Navarro,

(5th Cir. 1999).

Because Rodriguez did affirmatively consent to videoconferencing,

those cases are inapposite. Also distinguishable is the Seventh

Circuit's decision United States v. Bethea,

(7th Cir.

2018). In that case, the defendant argued that questions of

consent (or waiver) were irrelevant. See

. However, he

had not previously entered his plea in person, which the Seventh

Circuit determined was required under Rule 43.

. Here,

Rodriguez entered his plea in person several months before his

sentencing videoconference. As a result, the Seventh Circuit's

reasoning in Bethea does not apply.

- 16 - Of course, even if videoconferencing were permissible

under Rule 43, it is possible that the CARES Act's apparently more

robust requirements for remote sentencing should govern. The CARES

Act permits sentencing via videoconference under certain public

health conditions related to COVID-19. § 15002(a)–(b), 134 Stat.

at 527–30. Even then, videoconferencing is permissible only if

the defendant consents "after consultation with counsel" and "the

district judge in a particular case finds for specific reasons

that the plea or sentencing in that case cannot be further delayed

without serious harm to the interests of justice." Id.

§ 15002(b)(2)(A), (4), 134 Stat. at 528–29. On appeal, Rodriguez

faults the district court for failing to conduct the interests-

of-justice analysis and for "failing to ask [him] if he had

conferred with counsel about his decision to waive his physical

presence."

As to the first contention, the parties agree that the

court did not (as required by the Act) offer any "specific reasons

that" Rodriguez's sentencing hearing could not "be further delayed

without serious harm to the interests of justice." CARES Act

§ 15002(b)(2)(A), 134 Stat. at 528–29.

As to the second contention, Rodriguez stops short of

claiming that he did not, in fact, confer with counsel prior to

waiving his right to appear in person -- rather, he complains that

"there is no proof he waived his physical presence at sentence

- 17 - only after conferring with counsel." Yet this claim is directly

contradicted by the pre-hearing filing in which Rodriguez

confirmed that he was consenting to videoconference "[a]fter

thorough discussion with his attorney." The court again addressed

the issue during the August 2020 proceedings. Shortly before

asking whether Rodriguez "wish[ed] to waive [his] right to appear

in person . . . and to appear instead by video," the district court

confirmed that Rodriguez understood he had "a right to consult

with [his] lawyer" before the sentencing and revocation hearings.

The court then asked Rodriguez's attorney if there was "any reason

why [it] should not accept" Rodriguez's waiver, and counsel said

he knew of none. The district court concluded that Rodriguez had

"knowingly and voluntarily waived his right to appear physically"

"after consulting with his attorney."

How to ultimately reconcile Rule 43 with the CARES Act,

we need not decide. Even if there was error here because the

district court failed to strictly comply with the CARES Act, such

error would not come close to making this an "egregious case[]"

triggering the miscarriage-of-justice exception to plain error

forfeiture. On these facts, neither the error nor its impact on

Rodriguez would be "grav[e]." González-Colón,

(quoting Gil-Quezada,

).

Nor does Rodriguez's use of the phrase "structural

defect" to describe this rather prosaic and relatively

- 18 - inconsequential procedural error change the equation. Structural

errors comprise a "tiny class," which "includes only the most

pervasive and debilitating errors" that "infect '[t]he entire

conduct of [a] trial from beginning to end.'" United States v.

Padilla,

(1st Cir. 2005) (en banc) (first

alteration in original) (quoting Arizona v. Fulminante,

(1991)). Here, proving structural error is an especially

daunting task: Because Rodriguez did not raise his claim below,

plain error review applies. United States v. Lara,

(1st Cir. 2020) ("The plain error standard of review

applies . . . even to challenges to structural errors if they were

not raised below." (citing Johnson,

)), cert. denied

sub nom. Williams v. United States,

(2021).

Perhaps Rodriguez believes that the district court would

have been more receptive to his entreaties for leniency had he

appeared in person. But while we do not doubt the value of in-

person sentencing as a general matter, Rodriguez has failed to

persuade us that proceeding via videoconference during a global

pandemic with the express consent of a criminal defendant

constitutes error sufficiently grave to warrant setting aside an

otherwise valid appeal waiver.

C.

As to his sentence on the section 922(g)(1) conviction,

Rodriguez argues that the district court erred when it "failed to

- 19 - either explicitly or implicitly rule on appellant's motion for a

downward departure due to extraordinary family circumstances."

For its part, the government maintains that Rodriguez never made

such a motion.

Even assuming arguendo that Rodriguez's requests for

leniency constituted a motion for a downward departure, this

challenge fails. Rodriguez does not attempt to show that

sustaining the sentence would work a miscarriage of justice. As

a result, his claim cannot survive his valid appeal waiver.

D.

Rodriguez also alleges that his within-guideline-range

sentence was substantively unreasonable. But, once again,

Rodriguez fails to argue that sustaining the sentence would work

a miscarriage of justice. So his valid appeal waiver dooms this

claim as well.

E.

Finally, Rodriguez argues that the district court erred

by ordering him to "complete his high school education" as a

condition of supervised release included in his sentence on the

section 922(g)(1) conviction. Rodriguez's valid appeal wavier

covers conditions of supervised release, so we again consider

whether Rodriguez has demonstrated a miscarriage of justice.

Because we have suggested that plain sentencing error is "a subset"

- 20 - of the miscarriage-of-justice exception, Teeter,

,

we use the two standards interchangeably in this analysis.

Rodriguez concedes that "[d]istrict courts have

significant flexibility to impose special conditions of supervised

release." United States v. Garrasteguy,

(1st Cir.

2009). Accordingly, he does not argue that a district court is

without authority to impose educational conditions of supervised

release. Nor does he dispute that educational opportunities can

"benefit [a] defendant so that . . . he's better equipped to not

re-commit crimes." Rather, he asserts that on the "unusual facts"

of his particular case, imposing a mandatory educational condition

was plain error. Rodriguez has a documented learning disability

and failed to complete the fourth grade on four separate occasions.

We are sympathetic to Rodriguez's claim that his liberty

should not be curtailed if he fails to "complete his high school

education" after a good-faith effort.5 And, given Rodriguez's

educational history, he may not be an ideal candidate for the sort

of mandatory educational requirement the district court imposed.

Cf. United States v. McKissic,

(7th Cir. 2005)

(opining that a requirement to complete high school was "especially

5 Rodriguez's stated "inten[tion] to use the [Bureau of Prisons] to complete his education" and his request to serve his sentence in a facility where he could pursue a GED suggest he will make such a good-faith effort.

- 21 - suited to" the defendant, who had "nearly completed his high school

education"). That being said, Rodriguez expressed a desire to

continue his education while incarcerated, and nothing in the

record conclusively illustrates that he cannot find a way to

satisfy the court-imposed condition.

On the whole, we think it too soon to say more about

this issue given the limitations of our review. Rodriguez has

more than three years of his prison term yet to serve. Certainly

Rodriguez need try to complete a high school education. If he

succeeds, the better for everyone, and the issue disappears.

Conversely, should he fail, he can ask the district court to modify

the mandatory educational condition under Federal Rule of Criminal

Procedure 32.1(c).6 Should the district court deny his request,

Rodriguez can appeal that denial, and his challenge will be ripe

for our review. Cf. United States v. Davis,

(1st

Cir. 2001) (per curiam) (challenge was ripe where petitioner's

"term of supervised release [would] commence in less than two

months"); United States v. Medina,

(1st Cir. 2015)

(challenge was ripe where petitioner "could be subject to the

6 We have previously noted that "[t]he showing required for a defendant to obtain a modification of a condition of supervised release pursuant to [

(e)] is an open question in this circuit." Garrasteguy,

n.12. Whatever the appropriate standard, we feel confident that it is less stringent than the miscarriage-of-justice standard that governs our own review in this appeal. See

(comparing standards adopted by two of our sister circuits).

- 22 - condition he challenges in the near term"). And the record at

that time will contain much more information, facilitating a more

informed evaluation of the condition's validity, likely under a

different standard than the one that controls our review of this

direct appeal of the imposition of the condition.

IV.

For the foregoing reasons, we affirm Rodriguez's

sentences.

- 23 -