United States Court of Appeals For the First Circuit No. 18-1679

UNITED STATES OF AMERICA,

Appellee,

v.

EDWIN JURADO-NAZARIO,

Defendant, Appellant.

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

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

Before

Lynch and Boudin,* Circuit Judges.

Johnny Rivera-González on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

October 30, 2020

* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to

(d). BOUDIN, Circuit Judge. Edwin Jurado-Nazario pled guilty

to two counts of Production of Child Pornography, see

(a) and (e), and two counts of Transportation of a Minor with

the Intent to Engage in Criminal Sexual Activity, see

(a). For these offenses, his plea agreement tentatively

calculated a prison term of 210 to 262 months.

The starting point for a district court's sentencing

determination "is the guideline range, not the parties'

recommendations." United States v. Cortés-Medina,

(1st Cir. 2016). Here, the district court made its own

calculations, resulting in a proposed sentence between 324 and 405

months. The court then granted Jurado-Nazario a downward variance,

citing his service in the United States Army, and sentenced him to

a prison term of 300 months.

Jurado-Nazario appealed, arguing that his sentence was

substantively unreasonable and that the government violated his

plea agreement by defending the sentence.

Before this court, Jurado-Nazario conceded that the

district court correctly calculated the applicable guidelines

range and that his sentence was procedurally sound, but he argued

that the district court abused its discretion, thus creating a

sentence that was substantively unreasonable, by impermissibly

balancing the sentencing "pros and cons." The government answered

that the sentence, twenty-four months below the applicable

- 2 - guidelines range, was substantively reasonable. Jurado-Nazario

responded that the government violated his plea agreement, in which

they agreed not to recommend a sentence higher than 235 months, by

defending the reasonableness of his 300-month sentence.

Breach of Plea Agreement. Although "arguments raised

for the first time in an appellate reply brief [are] ordinarily

deemed waived," United States v. Casey,

(1st Cir.

2016), an appellant's reply to an argument raised for the first

time in the opposing appellee's brief has not been waived, for the

appellant brought the issue to the court's attention "at the

earliest point when it was logical to do so." Holmes v. Spencer,

(1st Cir. 2012); see also Rivera-Carrasquillo v.

Centro Ecuestre Madrigal, Inc.,

, 228 n.29 (1st Cir.

2016); Alfano v. United States,

(D. Me.

2008) (describing a case in which this court reviewed on the merits

an argument raised for the first time in the defendant's reply

brief because the argument was in response to a contention raised

for the first time in the government's brief).

Because Jurado-Nazario raised the argument that the

government violated the terms of his plea agreement "at the

earliest point when it was logical to do so," this court will not

"fault him for not having raised it sooner." Holmes,

; see also Sparkle Hill, Inc. v. Interstate Mat Corp.,

(1st Cir. 2015). "Whether the government has breached

- 3 - its plea agreement . . . presents a question of law, and our review

is de novo." United States v. Cruz-Vázquez,

(1st Cir. 2016) (citing United States v. Rivera-Rodríguez,

(1st Cir. 2007)).

A plea agreement is interpreted according to normal

contract principles. See United States v. Marín-Echeverri,

(1st Cir. 2017). This court has been "scrupulous

in holding defendants to the terms of the plea agreements that

they enter knowingly and voluntarily." United States v. Ortiz-

Santiago,

(1st Cir. 2000). But "[w]hen a plea

rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled." Cruz-Vázquez,

(quoting Santobello v. New York,

(1971)).

Jurado-Nazario's plea agreement calculated a total

offense level of 37, for which the guidelines recommend a prison

term of 210 to 262 months. In Jurado-Nazario's plea agreement,

the government allowed "the defendant to argue for a variant

sentence of incarceration as low as 15 years (180 months)" and

"reserve[d] the right to argue for a sentence of incarceration up

to 235 months (19.5 years)." App. vol. I, 22. Both sides then

promised that "no further adjustments or departures to the

- 4 - defendant's total offense level shall be sought by the parties."

App. vol. I, 23.

The government kept its promise. At the sentencing

hearing, the government resisted Jurado-Nazario's request for a

180-month prison term, emphasizing that Jurado-Nazario's crimes

involved four different victims and equating the good qualities

that Jurado-Nazario had put forward as potential mitigating

factors to those that a pedophile needs to gain a victim's trust.

On that basis, the Government suggested a prison term of 235

months, exactly the term promised in Jurado-Nazario's plea.

The government did not breach the plea agreement by

arguing before this court that Jurado-Nazario's sentence was

reasonable. Defending the district court's discretionary judgment

to impose a 300-month sentence does not violate the government's

promise to refrain from seeking "adjustments or departures to the

defendant's total offense level" or from recommending a sentence

of over 235 months. Those promises applied to the government's

recommendation at sentencing, not to a future appeal. Furthermore,

[a]s an appellee, the government is tasked, in effect, with defending the district court's judgment when a criminal defendant appeals. In our view, the government normally should be free, on appeal, to support a ruling of the district court even though a plea agreement precluded it below from arguing the position that underpins the ruling.

- 5 - United States v. Carbajal-Váldez,

(1st Cir.

2017) (footnote omitted).

Substantive Reasonableness. Jurado-Nazario was

sentenced to a 300-month sentence, rather than a 180-month sentence

as requested in his sentencing memorandum. An objection to his

sentence on the ground of substantive reasonableness is therefore

preserved. See Holguin-Hernandez v. United States,

(2020). Jurado-Nazario contends that the district court

abused its discretion when it impermissibly balanced the

sentencing factors in

(a), resulting in a

substantively unreasonable sentence. We review his challenge for

abuse of discretion, taking into account the totality of the

circumstances. See Gall v. United States,

(2007).

The district court adopted the pre-sentence report's

offense level of 41 and a criminal history category of I, which

indicated a sentencing range of 324 to 405 months in prison. Then,

noting Jurado-Nazario's military service, the district court

sentenced him to 300 months. Jurado-Nazario does not dispute that

the court adopted the correct guidelines range. Instead, he puts

forward mitigating factors that, he alleges, support an even

greater downward variance than the one the court awarded.

Jurado-Nazario claims that the court should have

fashioned a more lenient sentence because (1) he is a veteran who

served abroad in the US Army, (2) his family was abusive and

- 6 - neglectful to him as a child, (3) during his military service, he

suffered a traumatic brain injury and post-traumatic stress

disorder that triggered his resulting crimes, and (4) the

sentencing guidelines for child pornography are unduly harsh. But

the district court did not err. First, the district court took

his military service into account and granted a more lenient

sentence on that basis. Second, Jurado-Nazario admits that his

background was "vastly discussed" in court; "[t]hat the sentencing

court chose not to attach to certain of the mitigating factors the

significance that the appellant thinks they deserved does not make

the sentence unreasonable." United States v. Clogston,

(1st Cir. 2011). Third, the district court conducted an

evidentiary hearing and then made a factual finding that there was

"no medical evidence" of a traumatic brain injury and no evidence

that proved a causal connection between PTSD and Jurado-Nazario's

criminal behavior. In the context of sentencing, we review factual

findings for clear error, see United States v. Carpenter,

(1st Cir. 2015), and here, the district court's findings

were not clearly erroneous.

Lastly, some do regard the guidelines for child

pornography as remarkably harsh considering that murder

convictions can yield shorter sentences. See, e.g., Clogston,

(calling the guidelines for child pornography cases

"very stern"). Ultimately, however, the sentencing guidelines

- 7 - reflect social attitudes and can be changed by the political

branches. Here, the district court chose a 300-month sentence,

taking into account both Jurado-Nazario's specific circumstances

and the fact that child pornography can expose victims to long-

term damage and must be deterred.

Affirmed.

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