United States Court of Appeals For the First Circuit

No. 19-1680

UNITED STATES OF AMERICA,

Appellee,

v.

JAY GACCIONE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

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

Lisa Aidlin for appellant. Lauren S. Zurier, Assistant United States Attorney, with whom Aaron L. Weisman, United States Attorney, was on brief, for appellee.

October 2, 2020 BARRON, Circuit Judge. In 2018, in the District of Rhode

Island, Jay Gaccione pleaded guilty to a number of federal sex

crimes involving minors, for which, due to the extremely disturbing

nature of the conduct, he received a sentence of 2,160 months. At

the change-of-plea hearing, though, he contended, apparently for

the first time, that one of the facts alleged in one of the counts

against him was inaccurate. Although he was willing to plead

guilty to the count at issue -- for distribution of child

pornography -- he asserted that the images underlying that count

did not depict the child identified in the indictment but instead

depicted other children. The District Court nevertheless allowed

Gaccione to plead guilty to the offense set forth in that count

based on his admission that he distributed those other images.

Gaccione now appeals his conviction for that count as well as his

sentence. We affirm.

I.

On January 17, 2017, a grand jury in the District of

Rhode Island charged Gaccione with the following crimes: six

counts of sexual exploitation of a minor under

(a),

one count of distribution of child pornography under

(a)(2), and two counts of possession of child pornography

under

(a)(4)(B). Gaccione initially entered a

plea of not guilty, but later notified the District Court of his

intention to switch his plea to guilty on most of the counts

- 2 - against him. On November 13, 2018, the District Court held a

change-of-plea hearing and Gaccione pleaded guilty to all the

counts except for one of the counts for sexual exploitation of a

minor, which was later dismissed.

Of relevance here is Count VII, which related to the

distribution of child pornography. At the change-of-plea hearing,

the government summarized the evidence supporting this count as

follows:

As to Count VII, the United States would produce evidence that on or about April 29th, 2016, the Defendant was communicating via Gmail and Sprint messaging service with an individual who was in South Africa. On that date, that individual in South Africa told the Defendant that he had images of his three- and five-year-old children and would trade for like value; and after sending those images to the Defendant, they discussed sexual aspects of the images sent to the Defendant. Thereafter, the Defendant told that individual that he had images of his 15-year- old daughter, who was actually 14, and he sent six images to that individual in South Africa.

When asked whether he agreed with the government's recitation of

the facts, Gaccione initially said he did. However, after

conferring with his attorney, he stated that the government

attorney "said that I sent pictures of my daughter to someone in

Africa or something like that. I never sent any pictures of her.

It was pictures of, you know, other kids off the internet."

- 3 - After Gaccione's clarification, the District Court

stated that it did not think the "change in facts would affect the

elements of Count VII." In response, the government expressed

concern about allowing Gaccione to plead guilty to this count on

that understanding, noted the evidence that it contended showed

that Gaccione did in fact distribute pictures of his daughter, and

described how Gaccione's refusal to admit as much might affect

whether "there would be acceptance of responsibility" for the

purposes of the United States Sentencing Guidelines

("Guidelines"). The District Court then asked for Gaccione's

attorney to weigh in on the question. Gaccione's attorney stated

that "the identity of the person in the picture is not an element

of the charge" and that he thought the District Court could "take

the plea based on what [Gaccione's] admitted to today."

The District Court concluded that it could postpone

resolution of the question about acceptance of responsibility

until sentencing because Gaccione was willing to admit to

sufficient facts to satisfy all of the elements of the crime.

Accordingly, it asked Gaccione whether he admitted to the facts as

Gaccione had "amended" them, and, when Gaccione answered "[y]es,"

proceeded to accept his guilty plea on those modified facts.

In advance of sentencing, the United States Office of

Probation and Pretrial Services prepared a presentence report.

The report calculated Gaccione's total offense level under the

- 4 - Guidelines as forty-seven, which it treated as an offense level of

forty-three, the maximum level recognized by the Guidelines. That

level corresponds to a Guidelines range of life, see U.S.S.G. ch.

5, pt. A, but, because none of Gaccione's individual convictions

allowed for a prison sentence of life, the report recommended a

sentence of 2,280 months' imprisonment, which reflects the sum

total of the maximum prison terms of each of Gaccione's

convictions.

Gaccione's counsel sought a prison sentence of twenty-

five years. The government recommended sixty years' imprisonment,

although it made clear that the "recommendation just as easily

could have been" much longer, as "[t]he point . . . is that Mr.

Gaccione serve a lifetime sentence and that he never set forth out

of prison."

In June of 2019, the District Court sentenced Gaccione.

It began by calculating the offense level, which it agreed was

forty-three, and it acknowledged that the Guidelines therefore

recommended a prison sentence of life. It then proceeded to

sentence Gaccione to a total of 2,160 months', or 180 years',

imprisonment. That sentence consisted of eight sentences to be

served consecutive to one another: five thirty-year prison

sentences for Gaccione's five convictions for sexual exploitation

of a minor, and three ten-year prison sentences for Gaccione's

three convictions for distributing or possessing child

- 5 - pornography. For each conviction other than the conviction for

distributing child pornography, Gaccione was sentenced to the

maximum prison term allowed under the law. See

(e)

(maximum thirty-year prison sentence for sexual exploitation of a

minor);

§ 2252(b)(1) (maximum twenty-year prison sentence for

distribution of child pornography); id. § 2252(b)(2) (maximum ten-

year prison sentence for possession of child pornography).

In explaining its rationale for imposing a prison

sentence of such length, the District Court stated:

Mr. Gaccione, there is no doubt by everything that I've read and everything that I've heard today that you need to be severely punished because of the severity of this heinous crime. Your lawyer by recommending 25 years agrees with that, as well as obviously the government does by its recommendation. And I don't need to recount, I don't think, for the victims or for the public or anyone else, what my feeling is about the severity. I don't need to any further demonize you than your actions themselves do alone. That's not what today is about. [The government's] allocution of what the crime was is what this Court believes, and I don't need to repeat that, despicable and reprehensible and unfathomable. The question that the Court has grappled with and has to grapple with is there is no punishment that's severe enough for what you did. The only question becomes whether the Court imposes a sentence that at some point might allow you to be released from prison. And if one merely looked at the seriousness of the crime, the answer is easy, the answer is very easy; you'd never get out of prison. But

- 6 - the thing that I have to look at here is the human being that stands before me. And one thing we haven't talked about, and I don't necessarily need to because it's in the presentence report and you now know that I've certainly considered it, is what your background was. You acted against your child the way you were acted against. You watched your -- in addition to that, you watched your sister be sexually molested at a very young age by an uncle so you saw it even in the family. You grew up in, I think it was described by the probation department, as horrible conditions; that no child in this country or anywhere should go through. There is no doubt in my mind or in science that there is a correlation between what you suffered as a child and what you've done here against your own children and against society. There's just no question about that. So the question becomes whether that cause requires or mandates a cause for this Court to show some mercy because that's what it would be if the Court let's [sic] you out on the end. Because as I've said, if you look at the severity of the crime, it requires severe punishment. The problem with that analysis for this Court is the victim and victims in this case, Mr. Gaccione. And we know that this is a lifetime scar because the scar that you suffered has had a lifetime throughout yours. I don't know how your child will deal with this. I don't know whether she will go out and abuse when she's 41, how awful that would be, I just don't know, but anything short of a lifetime of imprisonment will not give her the safety and security that she deserves. Her having the comfort and the security and safety of knowing that she will never see you again unless she chooses to behind bars is the only thing I can offer the victim in this situation. And it is what keeps me from imposing some element of mercy which is

- 7 - oftentimes deserved for someone who was victimized the way you were. I don't do it out of malice, I don't do it out of some political feeling about the situation. I do it singularly because the victim deserves that security. She needs and the others in your family and your ex-wife need to know that you're going to be locked up for the rest of your life.

Gaccione then filed this timely appeal.

II.

Gaccione chiefly contends that his conviction on Count

VII cannot stand because the difference between the crime it

alleged -- which involved his distribution of images of his

teenaged daughter -- and the one that he pleaded guilty to

committing -- which involved his distribution of images of other

"kids" -- resulted in not merely a variance in the means of proof

but a "constructive amendment" of the indictment. See United

States v. DeCicco,

(1st Cir. 2006) (describing the

distinction between variances and constructive amendments of an

indictment (citing United States v. Fisher,

(1st Cir. 1993))). On that basis, he contends that his conviction

must be vacated, as such a constructive amendment would work a

violation of his rights under the Fifth and Sixth Amendments to

the United States Constitution. See United States v. Brandao,

(1st Cir. 2008). He contends as a fallback, though,

that the divergence between the conduct described in Count VII and

- 8 - the conduct he admitted to having engaged in when pleading guilty

to this count was a prejudicial variance, which would also violate

his constitutional rights. See United States v. Tormos-Vega,

(1st Cir. 1992).

Despite the fact that Gaccione pleaded guilty to this

offense, and despite the statements of his counsel to the District

Court regarding the amendment to the facts at issue, the government

does not contend that either challenge is waived. But even still,

as neither one was raised below, our review is only for plain

error. Brandao,

. Thus, Gaccione must show, as to

each, that there was an error, that it is "clear or obvious," that

his substantial rights were prejudiced thereby, and that the

"fairness, integrity, or public reputation of judicial

proceedings" were "seriously impaired." United States v.

Rodríguez-Milián,

(1st Cir. 2016) (quoting

United States v. Duarte,

(1st Cir. 2001)); see

also Brandao,

.

We start with the constructive amendment challenge. The

line between a constructive amendment to an indictment and a

variance from an indictment in the means of proof is not always

easy to discern. See United States v. Rodríguez-Rodríguez,

, 58 n.6 (1st Cir. 2011). In light of that murkiness, there

is no basis for concluding that, given this record and the nature

of this offense as one involving the distribution of contraband,

- 9 - it was "clear or obvious" that there was a constructive amendment

rather than merely a variance. Cf. United States v. Dowdell,

(1st Cir. 2010) (holding that a change in the type of

drug alleged to be at issue in a

(a)(1) offense did

not constitute a constructive amendment). Accordingly, this

aspect of his challenge fails at the second prong of the plain

error standard.

Insofar as there was only a variance, moreover, we do

not see how Gaccione can establish the requisite prejudice to show

reversible error. See United States v. Mubayyid,

(1st Cir. 2011) ("[T]o be grounds for reversal, a variance must be

severe enough to affect the defendant's substantial rights.").

Gaccione first contends that "he lacked adequate notice" of the

"new theory of the case" based on pictures of other children. See

Tormos-Vega,

(noting that the rule against

prejudicial variances protects the defendant's right to "have

sufficient knowledge of the charge against him in order to prepare

an effective defense and avoid surprise at trial"). But, Gaccione

has not met his burden to show that he was surprised by the fact

that he was being charged with -- and thus was pleading guilty to

-- distributing pictures of "kids" other than his daughter. He

was the one who independently chose to inform the District Court

that it was this conduct in which he had engaged in committing the

offense at issue.

- 10 - Gaccione does now also suggest that other defenses may

have been available to him on account of the different identity of

the victim. But, he fails to develop these defenses in any detail.

He thus cannot rest his showing of prejudice on the mere

possibility that he somehow was hindered in his ability to advance

them by the events that transpired during his plea colloquy.

Finally, Gaccione contends that prejudice exists

because, in consequence of the change he contests, he runs the

risk of being charged for a future offense in violation of his

right to protection from being twice placed in jeopardy for the

same offense. See Tormos-Vega,

. We do not see

how that is so. Whatever double jeopardy rights he has remain and

may be asserted if and when any new charge is brought. See United

States v. Fermin Castillo,

(1st Cir. 1987)

("[N]o legitimate double jeopardy concerns hover in the wings. If

need be, the record from [the] trial . . . can be introduced in

any subsequent prosecution in support of a double jeopardy

defense." (citing United States v. George,

(1st

Cir. 1985))). Certainly, given what the record reveals about what

transpired during the change-of-plea hearing, nothing about the

nature of the crime Gaccione was ultimately convicted of committing

is ambiguous. See Mubayyid,

n.19 (noting that the

record must "show with accuracy the extent to which the defendants'

convictions bar subsequent prosecution").

- 11 - III.

Gaccione's next set of challenges to his conviction on

Count VII rely on Rule 11 of the Federal Rules of Criminal

Procedure. But, as here, too, he did not make these objections

below, our review is only for plain error. See United States v.

Dominguez Benitez,

(2004).

Gaccione first argues that his plea on this count lacked

an adequate factual basis, see Fed. R. Crim. P. 11(b)(3), because

no images of child pornography were ever recovered and thus it is

impossible to know whether the images constituted child

pornography. It is true that the images themselves are not in the

record and that no detailed description of their content was

offered by either Gaccione or the government. But, during the

change-of-plea hearing, the government contended that it had

evidence showing that Gaccione was communicating "with an

individual who was in South Africa," that this person proposed

trading photographs of underage children with Gaccione and sent

him photos of his young children, that Gaccione and his trading

partner "discussed sexual aspects of" the images that this other

individual sent to Gaccione, and that Gaccione "sent six images"

of his fourteen-year-old daughter to that other individual. The

government also contended that Gaccione produced and possessed

sexually explicit images of his daughter. Gaccione admitted that

these facts were true, with the sole exception that he denied that

- 12 - he sent pictures of his daughter to the man in South Africa. He

instead claimed to have sent pictures of "other kids off the

internet."

From these admissions, the record supports the finding

that Gaccione "trade[d]" the photographs of the "kids off the

internet" at issue for "like value" of other photographs that were

of underage children, that Gaccione discussed the sexual content

of the images that he received as part of the exchange with his

trading partner, and that Gaccione created and possessed other

images of a minor -- his daughter -- that were described in detail

in ways that made clear that they were sexually explicit. No more

was needed to ensure that the District Court did not clearly or

obviously err in determining that it had a "reasoned basis" for

finding that the defendant distributed images of minors and that

the nature of those images was pornographic. United States v.

Matos-Quiñones,

(1st Cir. 2006); see also

(noting that facts may come from the defendant's admissions);

("Rule 11 does not require 'a test of guilt versus innocence,'

much less proof 'beyond a reasonable doubt . . . .'" (quoting

United States v. Negrón-Narváez,

(1st Cir. 2005))).

Gaccione appears separately to argue that there was an

insufficient factual basis for his plea because no evidence shows

that the images were of his daughter. But, he did not plead guilty

- 13 - to distributing images of his daughter; he pleaded guilty to

distributing images of other underage children.

Finally, Gaccione contends that his plea was not

voluntary and knowing as required by Rule 11(b)(1)(G) and Rule

11(b)(3). Gaccione fails to clearly explain this argument, but,

insofar as it does not mirror his arguments about the sufficiency

of the factual basis for his plea, it is apparently premised on

the contention that the last-minute switch in the nature of the

plea -- from one premised on photos of the daughter to one premised

on photos of other children -- left Gaccione unaware of the nature

of the charges against him. But, he was the one who noticed that

the government's recitation of the facts stated (inaccurately, he

alleges) that the images he distributed were of his daughter and

denied that particular fact. Where, as here, "the prosecutor's

statement . . . sets forth all elements of the offense and the

conduct of the defendant that constitutes the offense, 'the

defendant's admission that the allegations are true is sufficient

evidence that he understands the charge.'" United States v. Cotal-

Crespo,

(1st Cir. 1995) (quoting United States v.

Darling,

(7th Cir. 1985)).

IV.

We turn, then, to Gaccione's challenges to the sentence.

We start with his procedural challenges, which, the government

correctly points out, Gaccione failed to raise below. We therefore

- 14 - review them only for plain error. See United States v. Rondón-

García,

(1st Cir. 2018).

Several of these procedural challenges deal with the

fact that Gaccione received an aggregate 2,160-month prison

sentence, which amounts to 180 years -- much longer than his

remaining lifespan. These challenges each presume that his 2,160-

month prison sentence is somehow longer than a sentence of "life."

We addressed and rejected similar arguments in United States v.

Goodman,

(1st Cir. 2020), and United States v.

Saccoccia,

(1st Cir. 1995), and they fail here for the

same reasons. See Goodman,

; Saccoccia,

& n.28. Thus, so, too, do his procedural challenges that

rely on them.1

The other procedural challenge that Gaccione brings is

to the adequacy of the District Court's weighing of the sentencing

factors outlined in

(a). See Gall v. United

States,

(2007). But, it is clear that the

District Court gave Gaccione the sentence it did because it thought

the crime was very serious: "[I]f one merely looked at the

seriousness of the crime, the answer is easy . . . you'd never get

1 As Gaccione points out, the District Court at sentencing incorrectly stated that it sentenced Gaccione to 2,280 months' imprisonment. That mistake was corrected in the judgment. Although Gaccione suggests that this misstatement constituted procedural error, in light of the correction, we do not see why.

- 15 - out of prison." The District Court considered, moreover,

Gaccione's own history as a victim of abuse as a child and his

witnessing of other abuse committed by family members upon other

family members. The District Court nonetheless found these aspects

of Gaccione's case insufficient to warrant a reduced sentence given

the unusually disturbing nature of the conduct. Although Gaccione

takes issue with some of the District Court's chosen language, he

does not identify any specific concerns that the District Court

failed to consider.

Gaccione does make note of the fact that the District

Court went on to explain in handing down the sentence its interest

in Gaccione's daughter, the primary victim of his crimes, having

"the comfort and the security and safety of knowing that she will

never see you again unless she chooses to behind bars." He objects

that mental security for victims is not itself a § 3553(a) factor.

But, the District Court's comments are reasonably read to be

supportive of its conclusion about "the seriousness of the

offense," which the law does recognize as a permissible sentencing

factor. See

(a)(2)(A).

Gaccione separately contends -- in an argument that is

in its own right disturbing -- that the District Court erred in

sentencing him to such a long prison term to protect his daughter

because a shorter one would still have ensured that, by the time

of Gaccione's release, he would no longer have a sexual interest

- 16 - in her, he would be in diminished physical condition, and she would

be able to protect herself. That contention ignores that the

rationale for the District Court's sentence was permissibly based

on the seriousness of the offense conduct. There thus was no plain

error.

V.

Gaccione also challenges the substantive reasonableness

of his sentence, as he did below, and so we review for abuse of

discretion. See United States v. García-Mojica,

(1st Cir. 2020). In doing so, we look at "the totality of the

circumstances,"

(quoting United States v. Vázquez-Martínez,

(1st Cir. 2016)), and ask "whether the sentence is

the product of 'a plausible . . . rationale and a defensible

result,'" United States v. Rivera-González,

(1st

Cir. 2015) (omission in original) (quoting United States v. Martin,

(1st Cir. 2008)).

The conduct involved in the crimes at issue included

Gaccione repeatedly raping his fourteen-year-old daughter, forcing

her to engage in sexually explicit acts, and photographing her

engaging in those acts. We discern no abuse of discretion in

either the District Court's rationale or its result.

In arguing otherwise, Gaccione relies in part on

contentions that the District Court erred in imposing the sentence

that are predicated on the assumption that a 2,160-month prison

- 17 - sentence is greater than a prison sentence of "life" that equally

guarantees the defendant will be in prison for the rest of his

life. As already discussed, that assumption is mistaken, and thus

so, too, are these challenges. Gaccione's sentence was precisely

equivalent to what the Guidelines recommended, which is further

evidence of its reasonableness. See United States v. Hernández-

Maldonado,

(1st Cir. 2015) ("[R]eversals in

substantive reasonableness challenges are 'particularly unlikely

when . . . the sentence imposed fits within the compass of a

properly calculated [guidelines sentencing range].'" (second and

third modifications in original) (quoting United States v. Ruiz-

Huertas,

(1st Cir. 2015))).

Other of Gaccione's challenges merely repeat the same

contentions about the District Court's treatment of the § 3553(a)

factors that he raises in his procedural reasonableness challenge.

For the same reasons those challenges fail there, they do here as

well.

Gaccione also notes that, in United States v. Jenkins,

(2d Cir. 2017), the Second Circuit expressed serious

concerns that even sentences falling within the range prescribed

by straightforward applications of U.S.S.G. § 2G2.2, the Guideline

that applies to child pornography offenses, would, because of the

unique nature of the enhancements at issue in that Guideline, often

be substantively unreasonable.

. But, these

- 18 - concerns have no bearing on this case, given that the conduct for

which Gaccione was sentenced involved the repeated sexual assault

of his daughter. See

(distinguishing the unreasonable sentence

at issue from ones in which the defendant had contact with

children, produced pornography, or distributed, rather than merely

possessed, child pornography).

Finally, Gaccione contends that it was substantively

unreasonable to sentence him as harshly as a murderer. But, he

identifies no authority indicating that a life sentence for the

sort of inarguably horrific conduct he engaged in was unreasonable

merely because it did not result in the death of another. He also

points to a number of cases in which defendants have been sentenced

to lighter sentences for what he contends is comparable or worse

conduct. See, e.g., United States v. Arsenault,

(1st

Cir. 2016). But, at least with regard to the statutory provision

that requires judges to consider the need to avoid sentencing

disparities,

(a)(6), that provision "raises

concerns only 'if two identically situated defendants received

different sentences from the same judge,'" Arsenault,

n.5 (quoting United States v. Wallace,

(1st

Cir. 2009)), and Gaccione has not shown that he was identically

situated to any of the defendants in these other cases. A number

of the cases Gaccione cites, moreover, provide affirmative support

for the District Court's chosen sentence, as they explain how

- 19 - horrific sex crimes may warrant a prison sentence that is nominally

much longer than the human lifespan. See, e.g., United States v.

Hamilton,

(2d Cir. 2013) (concluding that

a 1,800-month sentence based on a defendant's "role in producing

graphic child pornography by filming himself sexually abusing

children" was justified given the "grave" nature of the crimes and

the fact that "any potential error in imposing additional

consecutive sentences is necessarily harmless"); United States v.

Demeyer,

(8th Cir. 2012) (stating that "it is

not for us to micro-manage how the district court exercised its

discretion . . . in order to ensure that [the defendant] would in

fact serve a life sentence" and recognizing that even a 750-year

sentence may be defensible on incapacitation and seriousness

grounds for a defendant "whose child pornography offenses

victimized his granddaughters" (citing United States v. Betcher,

(8th Cir. 2008))).

"In most cases, there is not a single appropriate

sentence but, rather, a universe of reasonable sentences," Rivera–

González,

, and the District Court's choice of a

sentence that ensured Gaccione would not be released during his

life was not outside the range of the reasonable, given the nature

of the conduct, the deference we owe to the District Court's

determination, and the fact that the sentence was within the

Guidelines range.

- 20 - VI.

We affirm.

- 21 -