United States v. Rios-Rivera
Opinion
Hilton Ríos-Rivera pled guilty to transporting a minor to a hotel in Puerto Rico with the intent to engage in criminal sexual activity with her, in violation of the Mann Act,
I.
The parties do not dispute the events leading to this prosecution. All of the material conduct took place within Puerto Rico. In early April 2013, Ríos, a fifty-year-old man, met the fourteen-year-old victim at a bar where he was performing with his band. While the victim's mother was in the restroom, he gave the victim his band's compact disc and his business card and asked her to contact him. The following day, the victim's mother discovered a text message from Ríos on her daughter's phone. She called Ríos to inform him of her daughter's age and warned him not to contact her daughter again. Despite those admonitions, Ríos continued contacting the victim. In one conversation, Ríos asked the victim if she was fourteen, to which the victim responded affirmatively. In a subsequent conversation on April 8, 2013, Ríos asked the victim where she went to school. The victim told Ríos the name of her middle school, and he arranged to pick her up during her lunch period the next day.
*41 On April 9, 2013, Ríos drove to the victim's middle school. The middle school had a sign clearly labeling it as such, and its students wore school uniforms. Ríos met the victim at a gas station across the street from her school and took her to a motel, where he had sexual intercourse with her. Ríos repeated this behavior the next day. On April 11, at 8:00 a.m., Ríos once more met the victim at the gas station near her middle school. He again took her to a motel where he had sexual intercourse with her and then dropped her off at 3:00 p.m. at the bus stop near her house.
After an investigation, in August 2013 the Puerto Rican authorities charged Ríos with three counts of sexual assault. In February 2014, a federal grand jury indicted Ríos for three violations of § 2423(a), which prohibits "knowingly transport[ing]" a minor "in any commonwealth, territory or possession of the United States, with intent that the individual engage ... in any sexual activity for which any person can be charged with a criminal offense." Before trial, Ríos entered into a plea agreement with the government. In exchange for the government dropping two counts of the three-count indictment, Ríos pled guilty to one count and waived his right to appeal so long as the district court sentenced him within a certain range calculated in accordance with the sentencing guidelines.
The district court calculated the sentencing guidelines range as the plea agreement suggested, but declined to sentence Ríos within that range. It found that Ríos's statements at sentencing were "geared to minimize his responsibility."
1
During his hearing, Ríos protested that the victim and her mother misrepresented her age to him. These assertions contradicted not only the victim's and her mother's statements to the probation officer, but also the recitations in the plea agreement. The district court also expressed concern that the presentence investigation report revealed that Ríos had been previously charged with five counts of sexually assaulting his stepdaughter, although he ultimately pled guilty to one count of aggravated assault. Further, the district court noted that one of Ríos's neighbors told probation officers that Ríos "always [had] young girlfriends who looked to be 18 or 19 years of age." The district court also cited what it characterized as Ríos's manipulative behavior and the government's unrebutted evidence that the victim suffered psychological harm as a result of it. After considering this evidence in light of the
Ríos timely appealed. For the first time, he challenges the constitutionality of his conviction on the grounds that Congress lacked the authority to enact § 2423(a) and that the statute impermissibly discriminates against Puerto Ricans in violation of the equal protection component of the Fifth Amendment's Due Process Clause. He also claims that his sentence was procedurally and substantively unreasonable.
II.
As an initial matter, Ríos has forfeited his challenges to the constitutionality *42 of § 2423(a). After his indictment, Ríos agreed to plead guilty without ever contesting the indictment in the district court. Ríos cannot point to any instances in the record where he so much as hinted at the constitutional arguments he seeks to raise here. Moreover, his plea agreement does not refer to any potential constitutional qualms.
At the time that Ríos lodged this appeal, in our circuit this conduct would waive -- not forfeit -- Ríos's right to argue on appeal that § 2423(a) is unconstitutional.
See, e.g.
,
United States
v.
Martinez-Martinez
,
Nevertheless, even if Ríos may object to his prosecution's constitutionality for the first time on appeal, his decision not to press these arguments before the district court effects a forfeiture, even after
Class
. In
Class
, the Supreme Court only decided that a guilty plea alone does not waive claims that the government could not "constitutionally prosecute" the defendant.
Blackledge
-
Menna
claims are not objections to the court's Article III jurisdiction, and are thus not of the type that we review de novo whenever they are brought.
See
United States
v.
Cordero
,
Furthermore, to the extent that the
Class
Court said anything about this issue, it suggested that
Blackledge
-
Menna
claims are nonjurisdictional. For instance, the
Class
Court relied on the fact that the advisory committee notes to Federal Rule of Criminal Procedure 11(a)(2) indicate that both jurisdictional and
Blackledge
-
Menna
claims are not subject to its preservation requirements.
Class
,
United States
v.
DiSanto
does not require a different conclusion.
At least one other circuit, the Sixth Circuit, has reckoned with
Class
's impact on unpreserved constitutional challenges, and that court's interpretation of
Class
comports with ours.
See
United States
v.
Bacon
,
III.
Ríos's constitutional arguments cannot surmount the high bar of plain error review applicable to forfeited claims. To show plain error, the appellant must meet a demanding four-prong test.
United States
v.
Padilla
,
Here, Ríos makes two constitutional claims. First, he asserts that Puerto Rico's commonwealth status precludes Congress from relying on its plenary authority to govern territories under the Territorial Clause. See U.S. Const. art IV, § 3, cl. 2. Ríos contends that Congress was required to promulgate § 2423(a) under a different enumerated power and that the only power that might justify it, the authority to regulate interstate and international commerce, does not. See U.S. Const. art I, § 8, cl. 3. Yet he identifies no precedent ruling out Congress's authority to rely on the Territorial Clause to legislate for Puerto Rico; in fact, Ríos invites us to answer what is at best an open question of constitutional law. As such, it was not plainly erroneous for the district court to have concluded that § 2423(a) was a valid exercise of the Territorial Clause. 2
*44
Second, Ríos suggests that the Mann Act's different treatment of conduct occurring wholly within Puerto Rico from that occurring wholly within one of the fifty states violates the equal protection component of the Fifth Amendment's Due Process Clause. He urges us to disregard Supreme Court precedent applying rational basis review to such claims and to instead apply heightened scrutiny.
See
Harris
v.
Rosario
,
In the alternative, Ríos argues that § 2423(a) fails rational basis review because it prohibits only intrajurisdictional transportation of a minor for the purpose of committing a sex crime within "any commonwealth, territory, or possession," but not a state. Congress does not plainly lack plenary power under the Territorial Clause to criminalize certain intrajurisdictional activity in those jurisdictions simply because it may not do so under the Commerce Clause within the fifty states.
See
United States
v.
Morrison
,
IV.
Nor do Ríos's sentencing arguments warrant relief. We generally review preserved claims of error in the district court's imposition of a sentence "under a deferential abuse-of-discretion standard."
United States
v.
Fuentes-Echevarria
,
We turn first to Ríos's procedural challenge. At the outset, we note that Ríos forfeited any possible procedural objection. Despite having ample opportunity to take exception to the district court's sentence at his sentencing hearing, Ríos did not. The
*45
district court recited the sentencing factors and the evidence that it considered before it pronounced Ríos's sentence. Ríos did not object during that recitation. Moreover, after announcing Ríos's sentence, the district court asked if there was "[a]nything else" counsel wished to discuss, and defense counsel replied, "That is all." Consequently, Ríos forfeited his arguments that the district court failed to provide him with notice of a possible departure sentence or to follow a departure guideline.
See
United States
v.
Perretta
,
Ríos posits that the district court committed a procedural error because it failed to provide him with "reasonable notice" before imposing a departure sentence.
See
Fed. R. Crim. P. 32(h). He asserts that the district court improperly issued an above guidelines sentence based on his criminal history category's failure to adequately represent the seriousness of his past convictions.
See
U.S.S.G. § 4A1.3(a)(1). This assertion is misguided. Recently, we observed that there is no discernible difference between departure and variance sentences.
See
United States
v.
Santini-Santiago
,
Ríos protests that at least where, as here, the district court said that it would "depart" -- as opposed to vary -- from the sentencing guidelines, the district court must hew to Rule 32(h). Nevertheless, we need not resolve whether the district court had to comply with Rule 32(h) or § 4A1.3 here because the district court imposed a variant sentence, not a departure sentence.
Ríos asks us to focus on one fact in isolation, the district court's stray use of the word "depart." But it is clear in context that the district court misspoke and corrected itself. Immediately before announcing its intention to "depart" from the guidelines, the district court analyzed the § 3553(a) factors. Subsequently, in the course of correcting its calculation of the sentence's length, the district court pronounced that the sentence was "in essence ... a variance."
See
United States
v.
Nelson
,
Next, Ríos contends that his sentence was substantively unreasonable. Ríos failed, as he did for his procedural reasonableness claim, to object to the substantive reasonableness of his sentence during his sentencing hearing. As we have before, we decline to resolve whether a defendant must preserve a substantive challenge to his sentence, and we assume, favorably to Ríos, that he was not required to do so.
See
United States
v.
Ruiz-Huertas
,
We accordingly review the substantive reasonableness of Ríos's sentence under the abuse-of-discretion framework recited above. Ríos contends that his 216-month (eighteen years) sentence was disproportionate for two reasons. First, he
*46
posits that his conduct was less severe than the prototypical Mann Act violation (i.e. border-crossing human trafficking). Second, he suggests that some states punish conduct similar to his with significantly shorter prison terms.
4
Ríos's reasons are unconvincing. We defer to the district court's sentencing determinations and affirm sentences that are based on "a plausible sentencing rationale" and that reflect "a defensible result."
United States
v.
Martin
,
As such, we have upheld a sentence "well-above the top" of the guidelines range where the district court cited "the seriousness of the defendant's criminal conduct, the defendant's past history and likelihood of recidivism, and the need for deterrence."
United States
v.
Flores-Machicote
,
Here, the district court provided a plausible rationale and a defensible result. It noted Ríos's seeming lack of remorse and his decision to downplay his criminal activity. The district court also cited Ríos's past aggravated assault conviction stemming from his alleged rapes of his stepdaughter. Furthermore, the district court considered Ríos's manipulative behavior to persuade the victim to engage in sexual activity. Ríos's arguments do not undermine the plausibility of this reasoning; they at most only show that the "universe of reasonable sentencing outcomes" may include a shorter sentence.
See
Ruiz-Huertas
,
Ríos insists that other jurisdictions' shorter sentences for similar conduct shows the substantive unreasonableness of his sentence. Far from it. Ríos cites no case indicating that sentences in other jurisdictions set a baseline for the substantive reasonableness of federal sentences. And even if we assumed that they do -- a problematic assumption -- Ríos fails to acknowledge that many jurisdictions impose similar or longer sentences than the sentence that he received.
Compare, e.g.
,
*47 V.
For the foregoing reasons, we AFFIRM Ríos's conviction and sentence.
The district court followed the plea agreement's recommendation to reduce Ríos's offense level by three levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b).
None of the cases mentioned by the parties that discuss Puerto Rican "sovereignty" applied that concept to decide constitutional questions about Congress's powers.
See
,
e.g.
,
United States
v.
Quinones
,
Ríos does not argue that § 2423(a) fails rational basis review because it is motivated by animus.
See
United States
v.
Windsor
,
For the first time in his reply brief, Ríos argues that his sentence was substantively unreasonable because the district court calculated his offense level using the guideline applicable to interjurisdictional human trafficking as opposed to the guideline for statutory rape.
Compare
U.S.S.G. § 2G1.3,
with
§ 2A3.2. We do not address this argument because arguments raised only in reply are waived.
United States
v.
Hall
,
Ríos's brief cites a different Massachusetts statute that imposes a three-year maximum incarcerative sentence.
See
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Hilton RÍOS-RIVERA, Defendant, Appellant.
- Cited By
- 25 cases
- Status
- Published