United States Court of Appeals For the First Circuit No. 11-1092

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD GOERGEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr. Senior U.S. District Judge]

Before Boudin, Circuit Judge, Souter,* Associate Justice, and Thompson, Circuit Judge.

Bjorn Lange, Assistant Federal Public Defender, Federal Defender Office, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellee.

June 1, 2012**

* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. ** This decision, originally issued on June 1, 2012, is now republished with the original date but in a slightly revised form pursuant to a docketed order to reflect a factual correction brought to the court's attention by the parties. BOUDIN, Circuit Judge. In September 2010, Ronald Goergen

pled guilty to four counts of sexual exploitation of children,

(a). The charges were that over a period of several

years, Goergen arranged for and took still pictures and videos of

three minor girls engaged in explicit sexual activities or poses

and then distributed the material. Georgen received a sentence of

60 years in prison, and he now appeals to challenge only his

sentence. The relevant background follows.

The government charged Goergen in an information with

four counts, three covering two videos and one image, each one

depicting a different one of the three minors in a sexually

explicit pose or activity; the fourth count was based on a still

image that, in the same manner, depicted two of the minor victims

together. At the plea hearing, the government stated that images

of the girls have featured in over a thousand investigations of

child pornography worldwide. In September 2010, Goergen waived

indictment and pled guilty to all counts without a plea agreement.

The pre-sentence report, prepared in November 2010,

described yet another video depicting one of the children engaged

in oral sex with the defendant at his behest. The report also

described numerous other images and a handful of videos depicting

Goergen's extensive, continued sexual abuse of the three minor

victims. The report, using the 2010 edition of the federal

sentencing guidelines, computed the total offense level, after

-2- applying required adjustments, as 51. At level 43 or above, the

recommended guideline sentence is life in prison regardless of

criminal history. U.S.S.G. ch. 5, pt. A, sentencing table (2010).

Goergen's very high offense level reflected the facts

that multiple children were abused over a significant period; that

two of the victims were under twelve years old; that one video

involved sadistic or masochistic conduct; and that Goergen

distributed the images. The recommended guideline sentence of life

imprisonment exceeded the statutory maximum of 90 years, 18 U.S.C.

2251(e), making 90 years Goergen's maximum possible sentence,

U.S.S.G. § 5G1.1(a).

At the sentencing hearing on January 13, 2011, Goergen's

counsel urged a sentence of 15 years; the government, 60 years.

The district court, explaining its reasons in detail, sentenced

Goergen to 60 years. As Goergen was then age 47, he is likely to

spend the rest of his life in prison. He now appeals, urging two

points: a claim under the Ex Post Facto Clause, U.S. Const., art.

I, § 9, cl. 3, that an earlier, more lenient guideline edition

should have been used, and a set of claims that the sentence is

unreasonable in premises and result.

The Ex Post Facto issue presents an issue of law reviewed

de novo. United States v. Neto,

(1st Cir. 2011),

cert. denied,

(2012). Goergen's predicate is that

the offense levels for Counts 2, 3 and 4, which contributed to the

-3- final offense level, were computed under the 2010 guidelines which

were in turn made more severe by the Protect Act of 2003 ("the

Act"),

,

, 667-76. The

related guideline changes became effective on November 1, 2004.

U.S.S.G. app. C, amend. 664 (2006).

Goergen then argues that his conduct under those three

counts occurred prior to the Act's effective date of April 30,

2003; that the post-Act changes raised the base offense level for

his crimes from 27 to 32; U.S.S.G. app. C, amend. 664, at 39

(2006); and that they added new enhancements, including a four-

level enhancement applied to Count 2 (for material portraying

sadistic or masochistic conduct).

If the pre-Act guidelines

were employed, he says his adjusted offense level would have been

only 45.

Under the instructions provided in the guidelines

themselves, the court must ordinarily use the guideline manual in

effect at the time of sentencing, U.S.S.G. § 1B1.11(a), unless this

would violate the Ex Post Facto Clause, in which event the manual

in force "on the date that the offense was committed" is ordinarily

used, U.S.S.G. § 1B1.11(b); only one edition of the manual is to be

used for all of the crimes, id. § 1B1.11(b)(2) (the "one book"

rule); and where the defendant is convicted of multiple offenses,

some before but one or more after a guidelines revision, the latter

manual governs all of the offenses. Id. § 1B1.11(b)(3).

-4- Here, Goergen concedes that his Count 1 offense took

place in 2004 after the post-Act guidelines change. If the one

book rule and multiple offense instructions prevail, the use of the

post-Act guidelines was permissible for all counts. In all events,

Goergen's brief--although opaque on this issue--may be arguing that

the guidelines instructions themselves (particularly the one book

and multiple offense rules) violate the Ex Post Facto Clause

insofar as they authorized use of level 51.

But even assuming such an argument for using level 45

could be considered by the panel in the teeth of contrary circuit

precedent, e.g., United States v. Silva,

(1st Cir.

2009), any such mistake would be harmless error. United States v.

Gerhard,

(1st Cir. 2010). As Goergen concedes, the

difference between a total offense level of 45 and 51 is immaterial

to the recommendation made by the guidelines: it is a life sentence

in either instance. In fact, because the guidelines sentencing

table only goes up to offense level 43, the application notes go on

to say (emphasis supplied):

In rare cases, a total offense level of . . . more than 43 may result from application of the guidelines. . . . An offense level of more than 43 is to be treated as an offense level of 43.

U.S.S.G. ch. 5, pt. A, cmt. n.2 (2002). The government-endorsed

offense level of 51 and Goergen's preferred offense level of 45 are

both treated as an offense level of 43.

-5- A colloquy between the judge and the probation officer at

sentencing confirms that the judge focused on the life sentence

recommendation and not the raw guideline number underpinning it.

The probation officer noted that

when you have a Level 51, the highest level you can have in the book is a 43, so that's what we use. It directs you to use that. But it is a Total Offense Level of 51.

The court then responded (emphasis supplied)

All right. 51. 43. Criminal History Category is I . . . [s]o the guideline provisions yield a sentence of life. The statutory maximum for these offenses would be 90 years.

This is not a case of a computational error leading to an

incorrect sentencing range, see United States v. Rodriguez,

(1st Cir. 2010), nor is there any hint that the judge

was influenced by the proposed level of 51 rather than 45. Most

important, the district judge's own detailed substantive

explanation for choosing 60 years as the sentence (discussed below)

relies on factors independent of the offense level.

Goergen next contends that his sentence was unreasonable

because the district court improperly assessed his risk of

recidivism. Among the reasons given by the district court when it

imposed the 60-year sentence was the finding that

the defendant is very much at risk for recidivism, and the likely potential victims of such recidivism would be underage females.

-6- Goergen claims that this finding was improper because the only

record evidence on this issue was an expert's psycho-sexual

evaluation concluding that he fell in a "moderate risk category to

reoffend."

Ordinarily, review of factual determinations at

sentencing is for clear error. United States v. Rivera Calderón,

, 99-100 (1st Cir. 2009), cert. denied,

(2010). Where, as here, the defendant did not preserve any

objection to the determination, our review is for plain error,

United States v. González-Castillo,

, 82 (1st Cir.

2009), a more demanding standard. However, our conclusion would be

the same in this case under the clear error test.

The expert evaluation identified factors suggesting a low

risk of reoffense and other factors suggesting a high risk of

reoffense. While the expert's conclusion was that Goergen

presented a "moderate" risk, the district judge was entitled to

make his judgment based on the report and the evidence before him

as to Goergen's conduct. The report itself pointed to factors at

both ends of the spectrum. The judge had authority to make his own

evaluation that we may overturn only if persuaded that he was

clearly wrong.

The risk of recidivism was just one of many reasons given

by the district court for imposing the 60-year sentence. It is

highly unlikely that eliminating the "very much" from "very much at

-7- risk for recidivism"--essentially, what Goergen asks us to do--

would have changed the sentence imposed. However, given the length

of the sentence, we do not rely on lack of prejudice but rather on

the lack of any clear error in the district judge's evaluation of

the risk.

Finally, Goergen contends that the district court did not

properly assess "the totality of the circumstances" relating to his

crimes when imposing the 60-year sentence, and that the sentence is

substantively unreasonable. Our review here is for an abuse of

discretion, taking into account the district court's explanation of

the sentence, the parties' arguments, and the contents of the pre-

sentence investigation report. United States v. Leahy,

(1st Cir. 2012).

Goergen points to factors that he argues should have

resulted in a lesser sentence, including his military service;

psychological evaluation; life history (including abuse); mental

and physical disabilities; remorse; and statements of the victims.

The district court acknowledged all of these mitigating factors at

sentencing, so it cannot be claimed the district court failed to

consider them. See United States v. Beatty,

(1st

Cir. 2008), cert. denied,

(2009).

For example, the district court acknowledged Goergen's

"difficult upbringing which included abuse, neglect, and

isolation"; that "[h]e has been a career United States Navy

-8- enlisted man"; that he has been "deemed . . . to be both physically

and mentally disabled"; that he "has expressed his remorse for

these actions"; and the court also noted its consideration of "the

input which it received from the victims and others."

Against these mitigating factors, the district court had

to weigh aggravating factors, many of which have been identified

above and of which more extensive description in this decision

would serve no one's interest. The district court provided a

detailed, thoughtful explanation of its sentence and chose to weigh

the aggravating factors heavily. No one who reads the explanation

would call it hasty, unbalanced or lacking in force.

Goergen also argues that other courts have been more

lenient in child abuse cases. To the extent that it is relevant,

we have identified a number of other cases in which similarly

severe sentences were imposed:

- United States v. Sarras,

(11th Cir. 2009) (upholding 100-year sentence for sexual abuse of one victim);

- United States v. Betcher,

, 826- 27 (8th Cir. 2008), cert. denied,

(2009) (upholding 750-year sentence for sexual abuse of five victims);

- United States v. Wilcox,

(8th Cir. 2012) (upholding 40-year sentence for sexual abuse of one victim)

In the end, the 60-year sentence is under the statutory

maximum and--fairly viewed as effectively a life sentence--is what

the guidelines recommended. This is a very grave sentence but, so

-9- too were the crimes and their consequences for the victims. Absent

a mistaken legal or factual premise, a faulty analysis or an

unreasonable result, the district judge's judgment must prevail.

Affirmed.

-10-