FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District
Elizabeth Lee for appellant.
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
Thompson, Selya, and Lipez, Circuit Judges.
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.
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).
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.
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
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.
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).
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.
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."
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."
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.
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.
Alleged Breach of Plea Agreement.
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
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.
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.
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.
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 ...