United States Court of Appeals For the First Circuit

No. 18-1605

UNITED STATES OF AMERICA,

Appellee,

v.

MELVIN GOMERA-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Barron, Circuit Judges.

Liza L. Rosado-Rodríguez, Research and Writing Specialist, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Supervisor, Appeals Section, on brief for appellant. David C. Bornstein, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Chief, Appellate Division, on brief for appellee.

February 28, 2020 LYNCH, Circuit Judge. Melvin Gomera-Rodríguez pleaded

guilty to one count of possessing child pornography in violation

of

(a)(4)(B), to wit, possessing 178 videos, which

is equivalent to over 13,000 child pornography images. He was

sentenced to ninety-seven months' imprisonment and twenty years'

supervised release. The sentence was at the low end of the

Guidelines Sentencing Range ("GSR"). He appeals his sentence,

arguing that the district court's decision not to impose a below-

guidelines sentence was procedurally and substantively

unreasonable. We find no error and affirm Gomera's sentence.

I.

Because Gomera pleaded guilty, "we draw the relevant

facts from the plea agreement, the change-of-plea colloquy, the

undisputed portions of the presentence investigation report

('PSR'), and the transcript of the disposition hearing." United

States v. Hassan-Saleh-Mohamad,

(1st Cir. 2019)

(quoting United States v. O'Brien,

(1st Cir.

2017)).

Gomera, a Dominican national and legal permanent

resident of the United States, was twenty-three years old at the

time of his arrest in 2015. Gomera then was studying to become an

accountant. He recently had started working as a "child aftercare

technician" at a local school. He had no prior arrest record.

- 2 - Gomera started collecting child pornography in his

teens. His collection contained videos of actual young

prepubescent children (often four to seven years old) being subject

to bestiality, incest, penetration by adult males, and oral sex.

The videos had titles such as "webcam omegle pthc 2015 sister

brother lick suck + dog great!!!" and "new pthc 2015 dad + daughter

1.avi." He made these videos available for download by others

through a peer-to-peer file-sharing network.

After indictment, Gomera paid $10,000 bail and was

released to home detention with restrictions. During this period

of home detention, Gomera complied with the conditions of his

release and voluntarily attended a treatment program for sex

offender defendants. He was released on bond a week after he was

arrested and otherwise served no time in prison before sentencing.

On January 9, 2018, Gomera's PSR calculated a Base

Offense Level of eighteen. This was enhanced two levels for

material involving prepubescent minors, U.S.S.G. § 2G2.2(b)(2);

two levels for knowingly engaging in distribution, id.

§ 2G2.2(b)(3)(F); four levels for material depicting sadistic or

masochistic conduct, id. § 2G2.2(b)(4); two levels for the use of

a computer in the offense, id. § 2G2.2(b)(6); and five levels for

the number of images, id. § 2G2.2(b)(7)(D). It was decreased three

levels for his accepting responsibility, id. § 3E1.1(a)-(b). The

Total Offense Level was thirty. Gomera had no prior criminal

- 3 - record and a Criminal History Category of I. The GSR calculated

was 97 to 121 months' imprisonment. The PSR noted that, under

Application Note 6 to the United States Sentencing Guidelines

section 2G2.4, an upward departure may be warranted because

multiple videos were more than five minutes in length. There is

no claim of guidelines calculation error.

The PSR identified both positive and negative "factors

that may warrant a sentence outside of the advisory guidelines."

In Gomera's favor, the report noted that he was a twenty-five-

year-old "first time offender who has the support from his family

and friends[,]" "is employed full-time and [is] close to completing

his bachelor's degree." Counter to that, the PSR found that

Gomera's child pornography collection was "of real children being

subjected to real sexual abuse." "Consumers create the demand

that leads to constant exploitation of children," the report

stated.

Gomera objected to some portions of the PSR. The

Probation Officer made changes in response to several of his

smaller requests, such as adding additional information about

mitigating circumstances. The Probation Officer rejected Gomera's

argument that he did not warrant a two-level enhancement for

knowingly distributing child pornography.

Gomera argued at sentencing, inter alia, that he should

be sentenced to time served because (1) he was not a risk to the

- 4 - public and did not require incapacitation through a long sentence

and (2) the child pornography possession sentencing guidelines are

too strict and not supported by empirical evidence. His lawyer

emphasized Gomera's youth and efforts at rehabilitation. She

submitted a report on Gomera from a psychologist that stated "[h]is

psychosexual development during childhood or adolescence shows no

signs of sexual deviancy, nor evidence of common risk factors

associated with sexual deviant behavior or pedophilia."

The United States recommended a sentence of ninety-seven

months' imprisonment, at the bottom of the GSR. It argued the

guidelines provided clear guidance as to Gomera's "culpability and

dangerousness to the community, particularly to children." And

the government stressed the victimization of the real children

shown in the videos.

The district court, as said, sentenced Gomera to ninety-

seven months' imprisonment and twenty years' supervised release.

During sentencing, the court discussed at length Gomera's

employment, educational history, disabilities, participation in

the sex offender treatment program, status as a first-time

offender, youth, and many other personal characteristics.

The court concluded:

The circumstances of the offense of conviction reflect, in the Court's estimation, humiliation and degradation suffered by vulnerable young children who are preyed upon by abhorrent acts of sexual abuse. The

- 5 - legislative history of the statute that criminalizes possession of child pornography acknowledges that those who, like defendant, possess and view child pornography tend to encourage its continued production and distribution.

Having considered the defendant's personal characteristics, the serious nature of the offense, and the need to deter future behavior by defendant and to protect society and its children from future criminal behavior by him, the Court finds that a sentence at the lower end of the applicable guideline imprisonment range is sufficient but not greater than necessary to meet objectives of punishment and of deterrence in this case.

Gomera's lawyer then objected on grounds of procedural

and substantive unreasonableness. When the court asked how the

sentence was procedurally unreasonable, his lawyer stated that the

sentence suggested the court viewed the guidelines as mandatory.

The court responded, "I don't know where you get the idea that I

understood it was mandatory. The Court considered the guidelines

computations, yes, but the guidelines are advisory."

Gomera's lawyer then stated that the sentence was

substantively unreasonable because "there is nothing in [Gomera's]

history, characteristics, in the record, . . . presented by the

Government or in the PSR that suggests that there were any other

aggravating factors besides the offensive conduct that led to

[Gomera's] conviction." The Court denied that the sentencing was

"something mechanic." It said that it considered Gomera's personal

characteristics and specifically highlighted the fact that he

- 6 - voluntarily went to sex offender treatment. The court said that

it watched videos Gomera's family members submitted. It "gave a

lot of weight to [Gomera's] allocution." It considered "all

aspects" of the case.

II.

We review the sentence first for procedural

reasonableness and then for substantive reasonableness. Hassan-

Saleh-Mohamad,

(quoting United States v. Rodríguez-

Reyes,

(1st Cir. 2019)).

A. Procedural Reasonableness

Gomera makes two procedural arguments on appeal. First,

he argues that "[t]he court committed procedural error by giving

undue weight to the offense in detriment of other sentencing

factors and failing to justly consider his personal

characteristics." Second, he argues that "[t]he court committed

procedural error by failing to consider the lack of empirical basis

for the Child Pornography Guidelines."

We will assume, favorably to Gomera, that the standard

of review for Gomera's first procedural claim is for abuse of

discretion.1 See United States v. Caballero-Vázquez,

,

1 "Preserved claims of sentencing error are generally reviewed for abuse of discretion. However, when a defendant fails to contemporaneously object to the procedural reasonableness of a court's sentencing determination, we review for plain error." United States v. Sayer,

(1st Cir. 2019) (internal citations omitted).

- 7 - 120 n.1 (1st Cir. 2018). The standard of review for Gomera's

second unpreserved procedural claim is plain error. United States

v. Sayer,

(1st Cir. 2019).

As to the first procedural argument, there was no abuse

of discretion. It is clear the district court explicitly

considered Gomera's personal circumstances. Gomera disagrees with

the court's balancing of sentencing factors. This is not a viable

claim of procedural error. A district court's choice to "weigh[]

the factors differently than [Gomera would have] is not error."

United States v. Contreras-Delgado,

(1st Cir.

2019).

Gomera's second unpreserved procedural claim is reviewed

for plain error. Sayer,

. When the district court

asked Gomera to specify his procedural unreasonableness claims, he

did not make this argument. Nor did he argue that the court was

required to explicitly address the issue of the empirical basis

Although Gomera objected to the procedural reasonableness of his sentence at the sentencing hearing, his specific objection was only that the district court "believes or took the guidelines as mandatory instead of advisory." When pressed by the court to explain this objection, Gomera said that "the Court may have treated the guidelines almost as mandatory, because in this case there is an inordinate amount of mitigating factors . . . and it is our position that the Court failed to explain why a sentence so harsh in this case is appropriate." Viewing the sentencing guidelines as mandatory (the issue Gomera raised at sentencing) and failing to properly weigh sentencing factors (the error he claims now) are distinct claims. Nonetheless, we assume in Gomera's favor that the first procedural claim should be reviewed under the abuse of discretion standard.

- 8 - for the child pornography guidelines. The record does not show

that the court failed to consider the "empirical basis" argument

to the extent it related to Gomera's claim that the court treated

the guidelines as mandatory. The record also does not show that

the court failed to consider the empirical basis argument when it

was made before sentencing. There was no error.

Nothing compelled the district court to reject the

guidelines based on Gomera's argument. A court does not "abuse[]

its discretion per se when it does not reject the child pornography

guidelines," let alone commit plain error. United States v.

Aquino-Florenciani,

(1st Cir. 2018). "[T]here is no

requirement that a district court must categorically reject the

child pornography guidelines based on their provenance."

Nor was the district court required to address this

argument explicitly at sentencing. In United States v. Clogston,

(1st Cir. 2011), we found "unpersuasive the

appellant's insistence that the district court's failure at

sentencing to address his policy argument evinces" any kind of

error. "[T]he sentencing court listened to the arguments proffered

at the disposition hearing and carefully explained why its chosen

sentence fit both the offender and the circumstances of the

offense."

"A reviewing court should be reluctant to read too

much into a district court's failure to respond explicitly to

particular sentencing arguments."

- 9 - B. Substantive Reasonableness

Gomera's final argument is that the ninety-seven-month

sentence was substantively unreasonable given Gomera's youth and

lack of criminal record. We review preserved substantive

reasonableness claims for abuse of discretion. See Aquino-

Florenciani,

(citing United States v. Ruiz-Huertas,

(1st Cir. 2015)).

A sentence is substantively reasonable if the district

court provided a "plausible sentencing rationale and reached a

defensible result." United States v. Coffin,

(1st

Cir. 2019) (quoting United States v. Abreu-García,

(1st Cir. 2019)).

The court's rationale, stated earlier, disposes of this

concern. The images of the abuse of real young children were

profoundly disturbing, as the court highlighted. Gomera had

recently taken a job giving him access to young children, and he

acknowledged his viewing of the images increased his sexual

arousal.

The court articulated its concern about those who

provide a market for the images resulting from the sexual abuse of

young children. "Congress reasonably determined that it was

necessary to reduce 'both supply and demand in the interstate

market' for child pornography." United States v. Blodgett,

(1st Cir. 2017) (quoting United States v. Paige, 604

- 10 - F.3d 1268, 1273–74 (11th Cir. 2010)). "In making this judgment,

Congress recognized —- reasonably, we think —- that manufacturers

and distributors of child pornography cannot thrive without

consumers eager to embrace the smut that they produce."

The

district court could perfectly well agree with Congress.

"Challenging a sentence as substantively unreasonable is

a burdensome task in any case, and one that is even more burdensome

where, as here, the challenged sentence is within a properly

calculated GSR." Clogston,

. "Within-guidelines

sentences are entitled to a presumption of reasonableness," United

States v. Rodríguez-Adorno,

(1st Cir. 2017), a

presumption Gomera has not overcome.

III.

Affirmed.

- 11 -