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United States v. Montanez-Quinones

United States Court of Appeals, First Circuit

December 21, 2018



          Jane Elizabeth Lee for appellant.

          Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Thompson, Selya, and Lipez, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Ricardo Montañez-Quiñones seeks to set aside his 109-month sentence for possession of child pornography. In support, he both reproves the government for allegedly violating the plea agreement through its overzealous advocacy at sentencing and reproves the district court for enhancing his offense level through an allegedly erroneous finding that he knowingly distributed child pornography. Concluding, as we do, that neither claim of error withstands scrutiny, we affirm the challenged sentence.

         I. BACKGROUND

         We briefly rehearse the facts and travel of the case. Because this appeal follows a guilty plea, we draw our account from the plea agreement, the undisputed portions of the pre-sentence investigation report (PSI Report), and the transcripts of the change of plea and sentencing hearings. See United States v. Coleman, 884 F.3d 67, 69 (1st Cir. 2018).

         On September 20, 2015, as part of an investigation of pornography sharing on Ares (a peer-to-peer file-sharing network), a computer forensic laboratory associated with the Department of Homeland Security (DHS) successfully downloaded a seven-minute video that depicted a sexual encounter between a young girl (approximately eight to ten years of age) and an adult man. DHS agents traced the file to the residence of the defendant in Gurabo, Puerto Rico, and executed a search warrant for that address. The agents seized two devices: a laptop computer and a desktop computer.

         The seized computers collectively housed 1, 072 child sex abuse images. Those images showed boys and girls between four and fourteen years of age performing oral sex on adult men and being vaginally and anally penetrated by adult men. The agents' analysis also revealed an additional 3, 613 child sex abuse files, which had either been downloaded and erased or were incomplete downloads, 89 child sex abuse files being shared on Ares, and at least 48 search terms related to child sex abuse.

         In due course, a federal grand jury sitting in the District of Puerto Rico handed up an indictment charging the defendant with two counts of transportation of child pornography and one count of possession of child pornography (including images of prepubescent minors engaged in sexually explicit conduct). 18 U.S.C. § 2252A(a)(5)(B), (b)(2). Although the defendant originally maintained his innocence, he eventually executed a non-binding plea agreement, see Fed. R. Crim. P. 11(c)(1)(B), and entered a guilty plea to the charge of possession of child pornography. In exchange for the defendant's plea, the government agreed to dismiss the remaining two counts.

         In the plea agreement (the Agreement), the parties agreed to a total offense level of 28, which included a two-level enhancement for distribution, see USSG §2G2.2(b)(3)(F), and a three-level enhancement premised on a stipulation that the offense of conviction involved between 150 and 300 offending images, see USSG §2G2.2(b)(7)(B). These stipulations were not intended to bind the sentencing court, see Fed. R. Crim. P. 11(c)(1)(B), and the Agreement contained no stipulation as to the defendant's criminal history category (CHC). The parties nonetheless agreed that, with a CHC of I, the guideline sentencing range would be 78-97 months; that the defendant could argue for a sentence at the low end of that hypothetical range; and that the government could argue for a sentence up to 87 months (the mid-point of the hypothetical range).[1]

         The probation officer offered a slightly different assessment. The PSI Report calculated the defendant's total offense level at 30 based on a finding that the defendant possessed 600 or more offending images. With a CHC of I, the applicable guideline sentencing range would be 97-121 months. In his objections to the PSI Report, the defendant took issue with its inclusion of the two-level enhancement for knowing distribution. Although the same enhancement had been contemplated by the Agreement, the defendant argued that there was a critical distinction: since executing the Agreement, USSG §2G2.2(b)(3)(F) had been amended to include a mens rea requirement. See USSG App. C, Amend. 801 (effective Nov. 1, 2016). The defendant argued that there was too little evidence to satisfy this new requirement. Specifically, he asserted that in order to prove knowing distribution, the government was obliged to introduce "evidence concerning the operation of the specific file sharing program used in the present case" and that it had failed to do so.

         The district court was not persuaded that so precise an evidentiary showing was necessary to ground the enhancement. It overruled the defendant's objection based on its determination that "the evidence on record showed that defendant knew of the file-sharing properties of the 'Ares' program." In this regard, the court noted that the defendant was a "sophisticated and longtime computer user." This background, which included the defendant's degrees in computer science and computer networks and his statements that he was skilled in computers and would like to pursue an advanced degree in computer networks, was sufficient to infer the requisite knowledge. To cinch matters, the defendant had stored a portion of his downloaded child sex abuse files to a "shared" folder, indicating that he had curated "the particular contraband that he wanted to exchange through the 'Ares' file-sharing program."

         After the court upheld the propriety of the knowing distribution enhancement, the disposition hearing proceeded. In accordance with the Agreement, the defendant argued for a sentence of 78 months (the low end of the hypothetical guideline range stipulated to by the parties). The government argued for a sentence of 87 months (the mid-point of the hypothetical range). In support of his argument, the defendant emphasized his difficult childhood and a history of abuse. The government countered that the defendant's conduct had helped to support an industry that "feeds on the sexual abuse and torture of children."

         When all was said and done, the district court refused to accept the parties' stipulated guideline range. Instead, it embraced the guideline calculations contained in the PSI Report, which included a higher offense level that added five levels for possession of 600 or more offending images. Using a total offense level of 30 and a CHC of I, the court adopted a guideline sentencing range of 97-121 months. It proceeded to sentence the defendant to a mid-range 109-month term of immurement. This timely appeal ensued.

         II. ANALYSIS

         In this venue, the defendant attacks his sentence on two fronts. First, he contends that the government breached the terms of the Agreement by failing to advocate for the bargained-for sentence. Second, he contends that the district court's finding that he knowingly distributed child pornography was in error. We examine each contention in turn.

         A. Alleged Breach of Plea Agreement.

         The defendant begins by asseverating that statements made by the prosecutor during the disposition hearing, along with statements that the government failed to make, comprised a breach of the Agreement. This asseveration breaks new ground, as the defendant failed to mount this claim of error below. Consequently, our review is only for plain error - "a formidable standard of appellate review." United States v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000); see United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) (citing Puckett v. United States, 556 U.S. 129, 143 (2009)). Under this standard, an appellant bears the burden of showing "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Within this rubric, an appellant's substantial rights are deemed to be affected only when an error "likely affected the outcome of the proceedings." Almonte-Nuñez, 771 F.3d at 89.

         It cannot be gainsaid that "[a] plea agreement is a binding promise by the government and is an inducement for the guilty plea." United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004) (citing Santobello v. New York, 404 U.S. 257, 262 (1971)). It follows that "a failure to support that promise is a breach of the plea agreement, whether done deliberately or not." Id. Because a defendant waives a panoply of constitutional rights by entering into a plea agreement, we hold the government to "the most meticulous standards of both promise and performance." Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973). Simply providing "lip service" to these solemn obligations will not suffice. Saxena, 229 F.3d at 6.

         Before us, the defendant asserts that the government violated the Agreement because it did not assiduously advocate for the bargained-for sentence and made a bad situation worse by misrepresenting the number of offending images stipulated in the Agreement. Some further facts are needed to put the assertion into perspective.

         The government had agreed to recommend an incarceration sentence of no more than 87 months. At the disposition hearing the prosecutor stated, consistent with this agreement, on no fewer than five occasions that the government was recommending a sentence of 87 months. The defendant views these repeated recommendations as hollow: he points out that the prosecutor did not mention the total offense level of 28 referenced in the Agreement but, rather, stated (incorrectly) that the parties had stipulated to 300 to 600 offending images. Furthermore, the defendant claims that the prosecutor "excoriated [him] and condemned his conduct in the strongest terms," thereby nullifying whatever "lip service" that the prosecutor might have given to the bargained-for sentencing recommendation.

         We start our consideration of the defendant's argument with first principles: "[n]o magic formula exists for a prosecutor to comply with the agreed-upon sentence recommendation." Gonczy, 357 F.3d at 54. Having repeatedly stated the government's sentencing recommendation of 87 months to the court, the prosecutor was not required to discuss any specific aspects of the government's thinking. In assessing whether the government breached its agreement to argue for the bargained-for sentence, we look instead to whether its "overall conduct" was "reasonably consistent with making such a recommendation, rather than the reverse." Id. (quoting United Statesv.Canada, 960 F.2d 263, 268 (1st Cir. 1992)); see ...

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