FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Carmen Consuelo Cerezo, U.S. District Judge
A. Rieckehoff on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Thomas F. Klumper, Assistant United States Attorney, Acting
Chief, Appellate Division, and John A. Mathews II, Assistant
United States Attorney, on brief for appellee.
Thompson, Boudin, and Kayatta, Circuit Judges.
BOUDIN, Circuit Judge.
Rivera-Hernández ("Rivera") was charged with
transporting child pornography, 18 U.S.C. § 2252A(a)(1),
and possession of such pornography, 18 U.S.C. §
2252A(a)(5)(B). Based on a Rule 11(c) agreement with the
prosecutor, Fed. R. Crim. P. 11(c)(1)(A)-(B), Rivera pled
guilty to the first count while the prosecutor abandoned the
second. The agreement contained a total offense level of 27,
but did not contain a stipulation as to Rivera's criminal
history category ("CHC"). Accordingly, the
agreement contained three contemplated sentencing ranges:
70-87 months (CHC I), 78-97 months (CHC II), or 87-108 months
(CHC III). The government agreed to recommend a sentence at
the lower end of the applicable range at sentencing, which it
did when it asked the district court to impose a 70-month
the Probation Office's pre-sentence report
("PSR") urged adjustments not contained in the
agreement, the district judge, in no way bound by the
parties' agreement, United States v.
Reyes-Santiago, 804 F.3d 453, 466 (1st Cir. 2015);
United States v. Eirby, 262 F.3d 31, 38 n.3 (1st
Cir. 2001), calculated the guideline sentence to incorporate
the adjustments which are not contested here; the new
guideline range was 121-151 months. The district court then
sentenced Rivera to 121 months in prison, the bottom of the
range but higher than any sentence supported by both parties.
now deploys a wide-ranging attack on his sentence, including
a procedural challenge asserting that the district court did
not consider certain arguments he presented in his sentencing
memorandum, and a direct assault on the guideline invoked by
the district court, U.S.S.G. § 2G2.2, which provides the
base offense level and various sentencing enhancements in
child pornography cases. We reject Rivera's procedural
argument because even if the district court did not explicate
on the record its consideration of all the arguments pressed
in his sentencing memorandum, these arguments were
unmistakably considered and rejected elsewhere in the
court's reasoning. See United States v. Fisher,
494 F.3d 5, 12 (1st Cir. 2007).
Rivera's attack on the guideline itself, Rivera's
brief argues that both he and the prosecutor to the end urged
a 70-month sentence, that U.S.S.G. § 2G2.2 was developed
by the Sentencing Commission in response to congressional
directives, that most district judges regard the sentences
under this guideline as far too harsh, and that several of
our sister circuits including the Second, United States
v. Dorvee, 616 F.3d 174 (2d Cir. 2010), and the Third,
United States v. Grober, 624 F.3d 592 (3d Cir.
2010), have comprehensively critiqued this guideline. Rivera
further asserts that his total offense level of 32,
recommended in the PSR and ultimately adopted by the district
court, is comparable to the base offense level for
second degree murder and voluntary manslaughter. See
U.S.S.G. §§ 2A1.2(a), 2A1.3(a).
government has chosen not to reply to all of these pointed
attacks, presumably believing that it does not have to do so.
The district court did not choose to vary or depart from the
guideline range it adopted, so its authority to do so is not
in issue here. Nor, given precedent shortly to be cited, is a
naked attack on Congress' guideline within the purview of
this panel, as it might be were an en banc court considering
the matter. And, if the government had to defend the very
severe sentences Congress envisioned, it could attempt to
paint a somewhat darker picture--focusing on the coercion of
children that lies behind some child pornography.
circuit precedent exists and controls the actions of this
panel, which is not an en banc court: the First Circuit has
cited this particular guideline and, while questioning its
harshness in the ordinary case, has upheld a district
court's discretion to follow it (or not). E.g.,
United States v. Stone, 575 F.3d 83, ...