United States Court of Appeals For the First Circuit

No. 19-1763

UNITED STATES OF AMERICA,

Appellee,

v.

WALLY IRIZARRY-SISCO,

Defendant, Appellant.

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

[Hon. Pedro A. Delgado Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Howard, Circuit Judge, and McAuliffe,* District Judge.

Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP was on brief, for appellant. Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, were on brief, for appellee.

November 22, 2023

* Of the United States District Court for the District of New Hampshire, sitting by designation. HOWARD, Circuit Judge. After a six-day trial, a jury

found Wally Irizarry-Sisco guilty of one count of transportation

of a minor with the intent to engage in criminal sexual activity,

in violation of

(a). On appeal, Irizarry seeks

to vacate the verdict against him, based upon the assertedly

erroneous admission of hearsay testimony and improper opinion

testimony. He also challenges the procedural and substantive

reasonableness of his sentence. Concluding that the contested

testimony was properly admitted and that the sentence was

procedurally and substantively reasonable, we affirm.

I. BACKGROUND

Because we review the challenged evidentiary rulings

using a balanced approach, "objectively viewing the evidence of

record," we present the background facts in a similarly balanced

manner. United States v. Velazquez-Fontanez,

(1st Cir. 2021) (alteration omitted) (quoting United States v.

Amador-Huggins,

(1st Cir. 2015)). Many of the

background facts are drawn from the closed-circuit-television

trial testimony of the alleged victim, to whom we refer as Minor

Y.1 We note when the facts are drawn from such testimony.

1The government also presented the testimony of the alleged victim's neighbor, her maternal aunt, and her older sister, among other witnesses.

- 2 - At the time of the alleged incidents, Irizarry was a

close friend to Minor Y's father and to her family. Irizarry and

Minor Y's father were initially engaged in a business relationship,

but a friendship developed thereafter.

From 2012 onward, Irizarry would visit the family

"[a]lmost every day" either at the family's home or at their farm,

both of which were located in Ponce, Puerto Rico. Minor Y's

parents trusted Irizarry to the point that they would allow him to

bring Minor Y on trips alone with him "[a]ll the time," and Minor

Y explained that she "loved him like a grandfather." Minor Y

further testified that she had known Irizarry since she was seven

years old.

In 2015, the relevant offense conduct began. Minor Y

was eleven years old at the time, Irizarry nearly sixty. During

that year, Minor Y would see Irizarry "daily" at her family's home.

Irizarry would give Minor Y gifts, including an electronic tablet

and a volleyball. Frequently, he would take her -- alone -- in

his gray Suzuki Vitara truck to shop at nearby stores, including

Kmart and Walmart, as well as to a local bakery to buy sweets for

her. On one such trip, Irizarry insisted on buying underwear --

"panties," according to Minor Y -- for Minor Y after he overheard

Minor Y telling her mother that she needed some and despite her

mother's objection to his making such a purchase.

- 3 - On a weekend in March, despite telling Minor Y that he

would drive her to Walmart, Irizarry unexpectedly drove her to the

El Eden motel in the Juana Díaz suburb of Ponce. Minor Y testified

that, as they drove in, Irizarry told her, "Put your seat back so

that they don't see you because you're a minor." After parking

his car, Irizarry got out and paid someone for a motel room

equipped with a pole. 2 As was the motel's practice, a motel

employee recorded the license plate of the car, along with the

car's time of entry and exit. The manager of the motel testified

that the motel's records indicated that a vehicle bearing

Irizarry's license plate number was parked at the motel from 8:57

a.m. to 1:42 p.m. on March 22, 2015.

Minor Y testified that, while she and Irizarry were in

the motel room, Irizarry -- among other inappropriate behavior --

touched her by her "woo," Minor Y's term for "vagina." She further

testified that she thought Irizarry wanted to have sex with her,

and she stated at trial that she "didn't like what he did." After

they drove back to her family's home, Minor Y did not immediately

tell anyone what had happened, as she was afraid that her father

would hit her.

It is disputed whether the person on duty was a man, as 2

Minor Y testified, or a woman, as Irizarry claims. This dispute is not significant, as there was other corroboration at trial that Irizarry was at the El Eden motel during the relevant timeframe.

- 4 - Minor Y testified that about a week later Irizarry took

her to another motel, located near a boardwalk where they had just

obtained food. She explained that the entrance of the motel had

"some dolphins," "its name," and "some palm trees." Minor Y

identified this second motel as the Marbella motel through

photographs provided by the government and entered into evidence,

although she did not explicitly identify the motel by name. She

also testified in graphic detail about various sexual acts that

Irizarry committed once inside the motel room, including that

Irizarry ejaculated on Minor Y.

Relevant to one of Irizarry's claims of evidentiary

error, one of Minor Y's neighbors, Wanda Pagan-Colon, testified

that Minor Y and her sister were visiting Pagan's house when Minor

Y thought she heard the sound of Irizarry's Suzuki Vitara outside.

After Minor Y told Pagan and her sister to "listen," she "got very

nervous. Her eyes got really big. She started moving her

fingers, and she started looking everywhere when she said that she

heard the sound of the car." Only about a week had passed since

the Marbella motel incident. After hearing the truck, Minor Y's

sister mentioned that their mother did not "want Old Man Wally at

the house."

Seeing Minor Y's distress, Pagan asked if Irizarry had

done anything to her. Pagan testified, over Irizarry's

objections, that while Minor Y initially denied that anything had

- 5 - happened, she was acting very nervous and unusual and so Pagan

"insist[ed] and [she] asked [Minor Y], did he do anything to you?"

Minor Y got even more nervous and said, "Yes, Ti-Ti."3 Pagan then

asked, "What did he do? Tell me what he did to you." Minor Y

began to explain, but Pagan asked, "[W]hat he has between his legs,

did he put it in your woo-woo?" Minor Y responded, "Yes, Ti-Ti."

Pagan asked, "What else happened?" Minor Y reportedly told her,

while crying, that "some white stuff came out." When Pagan later

looked out of her window, she indeed saw Irizarry's truck parked

across the street outside Minor Y's house. Irizarry argues on

appeal that Pagan's testimony concerning Minor Y's statements was

hearsay improperly admitted by the district court under the

"excited utterance" exception. See Fed. R. Evid. 803(2).

Relevant to Irizarry's other claim of evidentiary error,

Minor Y's aunt, Sarah Mercado-Alicea, testified at trial that she

was at Minor Y's house one day in 2015 when Minor Y came home with

Irizarry and complained to her that her "ass" hurt. Mercado told

Minor Y, "Be careful that that old man hasn't done anything to

you." In response, Minor Y, in Mercado's words, "smiled at me,

but she smiled a very sort of sad smile" and shrugged her shoulders

while making a facial gesture. Mercado testified that she

interpreted Minor Y's response to "mean[] that the old man had

3 Minor Y typically referred to Pagan as "Ti-Ti," as she viewed her as an aunt ("tía" in Spanish).

- 6 - hurt her." Irizarry argues on appeal that this statement by

Mercado was inadmissible as an opinion on an ultimate issue, see

Fed. R. Evid. 704, and as an opinion on a witness's credibility.

II. PROCEDURAL HISTORY

A grand jury charged Irizarry with three counts of

transportation of a minor with the intent to engage in criminal

sexual activity, in violation of

(a).4 One count

was later dismissed pursuant to the government's motion. Of the

remaining two counts, the jury found Irizarry guilty on the count

related to his alleged conduct in connection with the first motel,

the El Eden motel, but it acquitted him on the count related to

his alleged conduct in connection with the second motel, the

Marbella motel.5

In its Presentence Investigation Report (PSR), the U.S.

Probation Office calculated a base offense level of 28 for

4

(a) reads, "A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life." We have construed this section to apply to conduct occurring wholly within Puerto Rico. See United States v. Cotto- Flores,

(1st Cir. 2020). 5 The government suggests that it is likely Irizarry was acquitted on Count Two because, unlike with the El Eden motel, no one from the Marbella motel testified, nor did Minor Y explicitly identify the name of the motel, despite identifying photos of the Marbella motel as the second motel to which Irizarry brought her.

- 7 - Irizarry's § 2423(a) conviction. The PSR then added a 2-level

enhancement because the offense involved a sex act, an 8-level

enhancement because the offense involved a minor under the age of

twelve, and a 5-level enhancement because the offense involved a

"pattern of activity involving prohibited sexual conduct." These

enhancements resulted in a total offense level of 43, which --

based on Irizarry's criminal history category of I -- resulted in

a guideline sentence of life imprisonment.

Irizarry objected to the PSR -- specifically to the 5-

level enhancement for a "pattern of activity involving prohibited

sexual conduct" -- on the basis that the jury had only found him

guilty on one count and had acquitted him on the other. Therefore,

he argued, no pattern of activity existed.

The district court adopted the PSR guideline

calculations and considered the

(a) factors. The

judge took into account Irizarry's age and his health problems,

explicitly stating that "the Court has considered the effect that

a prolonged sentence of imprisonment could have on Mr. Irizarry’s

health, as well as the Bureau of Prisons' ability to provide proper

medical care to the defendant under custody." The judge sentenced

Irizarry to 235 months' imprisonment, below the recommended

guideline range of life imprisonment, writing, "Taking into

consideration the totality of the record, a sentence below the

- 8 - advisory guideline range is a sentence sufficient and not greater

than necessary to promote the objectives of sentencing."

III. EVIDENTIARY RULINGS

We review preserved challenges to the district court's

evidentiary rulings for abuse of discretion. United States v.

Spencer,

(1st Cir. 2017). An "[a]buse of discretion

occurs when a relevant factor deserving of significant weight is

overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits a palpable error of judgment in calibrating the

decisional scales." United States v. Taylor,

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

(1st Cir. 2005)). Unpreserved challenges to the same are reviewed

under the stricter standard of plain error. United States v.

Belanger,

(1st Cir. 2018). This Court "will only

vacate a jury verdict if an improperly admitted statement was not

harmless -- that is, if its admission 'likely affected the outcome

of trial.'" United States v. Upton,

(1st Cir.

2009) (quoting United States v. Castellini,

(1st

Cir. 2004)).

The government contends that Irizarry did not preserve

his evidentiary challenge as to Mercado's lay opinion testimony

but concedes that he did as to Pagan's testimony regarding Minor

Y's statements, which were admitted under the excited utterance

- 9 - exception. Irizarry contends in his reply brief that he properly

preserved both. Instead of wading into this issue, we assume,

favorably for Irizarry, that our review is for abuse of discretion,

rather than for plain error. See Spencer,

.

Nevertheless, neither of Irizarry's claims survives this standard

of review. Because we find below that the district court did not

abuse its discretion in admitting the evidence, we need not conduct

a harmlessness inquiry.

A. Excited Utterance

Irizarry argues on appeal that the statements made by

Minor Y to Pagan should have been excluded as hearsay and were

improperly admitted by the district court under the excited

utterance exception. See Fed. R. Evid. 802, 803(2). Pagan's

testimony concerning the statements that Minor Y made to her were

hearsay, see Fed. R. Evid. 801(c), and the government does not

contend otherwise. The excited utterance exception, however,

exempts from the rule against hearsay a "statement relating to a

startling event or condition, made while the declarant was under

the stress of excitement that it caused." Fed. R. Evid. 803(2).

We have explained that a statement may be admitted under

Rule 803(2) if it meets three requirements: (1) the declarant must

experience a startling event; (2) the statement must be made while

the declarant is subject to the influence of that event; and (3)

the statement must relate to that event. See United States v.

- 10 - Collins,

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

Bailey,

(1st Cir. 1987)). Irizarry argues that

the statements were not the product of a startling event but

instead were made in response to questioning by Pagan, who made an

accusation against Irizarry in the presence of Minor Y and thereby

planted the idea in Minor Y's mind.

The rationale underlying the excited utterance exception

is that "excitement suspends the declarant's powers of reflection

and fabrication, consequently minimizing the possibility that the

utterance will be influenced by self interest and therefore

rendered unreliable." United States v. Taveras,

(1st Cir. 2004) (quoting United States v. Alexander,

(D.C. Cir. 2003)). We also keep in mind, as this Court has

noted previously, that "[p]rosecution of the crime of sexual abuse

of a child poses special evidentiary problems. The traditional

hearsay exceptions are not drafted with child sex abuse

prosecutions in mind." United States v. Ellis,

(1st Cir. 1991) (quoting Daniel Capra, Innovations in Prosecuting

Child Sexual Abuse, N.Y.L.J., November 9, 1989, at 3).

Under the first prong, which requires the declarant to

have experienced a startling event, "courts seem to look primarily

to the effect upon the declarant and, if satisfied that the event

was such as to cause adequate excitement, the inquiry is ended."

United States v. Napier,

(9th Cir. 1975) (quoting

- 11 - 2 McCormick on Evidence § 297, at 705 (2d ed. 1972)); see also 2

McCormick on Evidence § 272 (8th ed. 2022) (same). Minor Y made

the statements to Pagan, as the government explained to the

district court at sidebar and to this Court in its briefing, after

Minor Y heard the sound of Irizarry's truck pulling up to her

family home, which was across the street from Pagan's home. To

determine whether hearing this sound was a startling event for the

purposes of Rule 803(2), we look at the effect that it had on Minor

Y, whom Irizarry had allegedly assaulted twice in the previous two

weeks.

We find persuasive the reasoning of our sister court in

Napier, in which a victim of a violent assault, roughly eight weeks

after the attack, was 're-excited' after being shown a newspaper

photograph of her alleged attacker by her sister at home.

. The victim's sister testified that the victim's

"immediate reaction was one of great distress and horror and

upset," and that the victim "pointed to it and she said very

clearly, 'He killed me, he killed me.'"

The Ninth Circuit

looked at the effect on the victim and found that the victim's

"suddenly and unexpectedly" being "confronted with a photograph of

her alleged assailant" was a sufficiently startling event to

qualify under the rule.

. While seeing a newspaper

photograph was not in and of itself an event that might typically

be considered 'startling,' its connection with a previous

- 12 - startling event -- even one remote in time -- imbued it with that

quality in light of the effect that it had on the victim. See

Similarly, Pagan explained that after hearing the sound

of Irizarry's truck, Minor Y "got very nervous. Her eyes got

really big. She started moving her fingers, and she started

looking everywhere when she said that she heard the sound of the

car." She also began to cry and continued to do so throughout her

conversation with Pagan and her sister. Minor Y testified at

trial that when she heard the sound of Irizarry's truck, she knew

"he was going to my house to get me." Pagan went as far as to

characterize Minor Y as "hysterical" during their conversation.

While hearing a truck is not in and of itself startling,

when that truck is associated with the two recent sexual assaults

that Minor Y had allegedly experienced, hearing that sound could

have had the potential to 're-excite' Minor Y (and clearly seemed

to do so). The prospect of a third consecutive weekend of sexual

abuse, when the second had been a dramatic escalation from the

first, was undoubtedly frightening for Minor Y. We cannot say,

at least under the first prong, that the district court abused its

discretion in determining that hearing Irizarry's truck was a

startling event for Minor Y.

Analysis of the second prong -- that the statement be

made while the declarant is subject to the influence of the

startling event -- presents us with a closer call, but we do not

- 13 - find that the district court abused its discretion on this basis

either. Irizarry's primary argument against the admission of the

statements at issue is that they were elicited by Pagan's

questioning of Minor Y. It is true that Pagan testified that

while Minor Y initially denied that Irizarry had done anything to

her, after Pagan pressed her, asking whether Irizarry did anything

to her, Minor Y got "more nervous," and ultimately responded, "Yes,

Ti-Ti." Pagan next asked whether Irizarry put, "what he has

between his legs . . . in your woo-woo?" Minor Y again answered,

"Yes, Ti-Ti." Pagan then asked, "What else happened?" Minor Y

reportedly told her that "some white stuff came out."

Irizarry contends, without citing any relevant authority

on the point, that Minor Y's statements were inadmissible because

they were made in response to Pagan's questions rather than

spontaneously while under the influence of the startling event, as

required by the second prong of the Rule 803(2) analysis. Irizarry

also briefly contends that the statements are not admissible

because they pertained to the assaults that "allegedly occurred at

some unknown time," prior to Minor Y hearing Irizarry's truck.

Ultimately, the question "we must answer in determining

whether a statement satisfies Rule 803(2)'s second condition is

whether the statement was the product of reflective thought or the

stress of excitement caused by the startling event." United

States v. Magnan,

(10th Cir. 2017). In making

- 14 - this determination, courts consider a variety of factors

"includ[ing] (a) 'the amount of time between the event and the

statement,' (b) 'the nature of the event,' (c) 'the subject matter

of the statement,' (d) 'the age and condition of the declarant,'

(e) 'the presence or absence of self-interest,' and (f) 'whether

the statement was volunteered or in response to questioning.'"

at 1292 (quoting United States v. Pursley,

(10th Cir. 2009) (collecting cases and factors from across the

federal circuits)).

"All other things being equal, a declarant's spontaneous

statement surely is more likely to qualify as an excited utterance

than a statement in response to questioning," but the presence of

questioning is not dispositive.

. The other circuits

to consider the question have agreed that the fact a statement was

elicited by questioning is not an absolute bar on that statement's

admissibility as an excited utterance. See Webb v. Lane,

(7th Cir. 1991) ("Statements made in response to

questioning may qualify as an excited utterance."); Guam v. Cepeda,

(9th Cir. 1995) (explaining that the "fact that

a statement is made in response to a question" is just one "aid to

assist in deciding the ultimate question, whether the statement

was the product of stress and excitement or reflective thought");

United States v. Iron Shell,

(8th Cir. 1980) ("Nor

is it controlling that [the declarant's] statement was made in

- 15 - response to an inquiry."); cf. State v. Dessinger,

,

602 (Iowa 2021) (noting in the context of a child's account of an

assault, admitted under Iowa's Rule 803(2) analog, that "when the

statements do not result from a rational dialogue, or the

questioning from others is more general such as, 'What happened?'

the statements will be more likely to fall under the excited

utterance exception"); State v. Smith,

(Utah

1995) ("An excited utterance made in response to a somewhat leading

question does not necessarily make the declaration inadmissible,

although surely that fact must be carefully evaluated in

determining admissibility.").

Similarly, when an "excited utterance goes beyond

description of the exciting event and deals with past

facts . . . it may tend to take on a reflective quality and must

be more carefully scrutinized with respect to the second element."

Murphy Auto Parts Co. v. Ball,

, 511 (D.C. Cir. 1957)

(Burger, J.); see also Fed. R. Evid. 803(2) advisory committee's

notes to 1972 proposed rules (citing Murphy,

). But

like the fact that a statement was made in response to a question,

the "fact that the utterance is not descriptive of the exciting

event is [only] one of the factors which the trial court must take

into account in the evaluation of whether the statement is truly

a spontaneous, impulsive expression excited by the event."

Murphy, 249 F.2d at 511.

- 16 - It is in a "close case that the fact that our review is

for abuse of discretion matters most." United States v. Spencer,

(1st Cir. 2017). "[W]e may not reverse a

determination simply because we, if sitting as a court of first

instance, would have weighed the relevant considerations

differently." Negrón-Almeda v. Santiago,

(1st

Cir. 2008); see also Murphy, 249 F.2d at 511 (noting that the

evaluation of whether a statement is spontaneous "lies essentially

with the trial court, and not unlike the observation of

credibility" is "based in part, at least, on observation of the

witness, the context of the statement and all surrounding

circumstances"). Given the relevant factors, and the applicable

abuse of discretion standard of review, we cannot say the district

court committed a "palpable error of judgment," Taylor,

, in concluding that Minor Y's statements were spontaneously

made as a result of the stressful event.

The record reflects that Minor Y made the statement

immediately after becoming extremely anxious when she heard the

sound of Irizarry's truck. Indeed, Pagan testified that Minor Y

was hysterical during their conversation. See Magnan,

(noting that if a declarant's excitement level was

"severe," then statements made in response to questioning could

indeed qualify as excited utterances). And there is no indication

from the record that there was a break in Minor Y's excited state

- 17 - during the relevant period. While Pagan did not specifically

testify as to the length of time between Minor Y's hearing

Irizarry's truck and her statements at issue, the record "indicates

that it is unlikely that a significant amount of time elapsed," as

all the statements occurred in the course of a single conversation

that directly followed the sound of Irizarry's truck. United

States v. Moore,

(7th Cir. 1986).

We are also mindful of the special evidentiary problems

associated with child sexual abuse. As this Court has noted

previously, statements like these from young children like Minor

Y are in many ways sui generis. Ellis,

.

Additionally, nothing in the record suggests that Minor Y had

previously discussed or been questioned about Irizarry's assaults,

and Irizarry has not identified a motive on the part of Minor Y to

fabricate what are undoubtedly extreme allegations. These factors

also support the District Court's conclusion that Minor Y's

statements, while they came in response to questions about past

events rather than the sound of the truck itself, were the result

of excitement. See Murphy, 249 F.2d at 511.

There remains the question whether the district court

abused its discretion in determining that -- under Rule 803(2)'s

third prong -- the statements related to the event. "Relating to"

an event under Rule 803(2) is markedly broader than "describing or

explaining" an event under the directly adjacent Rule 803(1)

- 18 - exception, which governs present sense impressions. See United

States v. Boyce,

(7th Cir. 2014). The relation

requirement encompasses those situations in which the "subject

matter of the statement is such as would likely be evoked by the

event."

at 799 (quoting 4 Weinstein's Federal Evidence ¶

803(2)[01] (1985)). Minor Y's statements, while they do not

describe or explain the sound of Irizarry's truck, are clearly

related to hearing that sound. For Minor Y, this was the vehicle

that conveyed her to two sexual assaults, and it was now coming

for her a third time. Appellant's argument that Minor Y's

statements had no relation to the event of hearing Irizarry's truck

is simply without merit, given the broad construction of the

relation requirement in the Federal version of Rule 803(2). See

Murphy, 249 F.2d at 511.

"Thus, there was a sufficient basis for the [district]

court to have found that each of the conditions necessary for the

application of the excited utterance exception was met." United

States v. Bailey,

(1st Cir. 1987) (finding no

abuse of discretion by the district court). Having carefully

addressed each of the three prongs, we hold that the district court

did not abuse its discretion in admitting Minor Y's statements to

Pagan.6

6We also need not wade into the thornier question of whether, as the government alternatively proposes, the alleged sexual abuse

- 19 - B. Lay Opinion Testimony

Irizarry also argues on appeal that Mercado's testimony

-- that she interpreted Minor Y's shrug, facial gesture, and sad

smile to "mean[] that the old man had hurt her" -- was not

admissible as lay opinion testimony because it offered an opinion

as to an ultimate fact, in violation of Rule 704, as well as to

the credibility of the victim. Fed. R. Evid. 701, 704.

Lay opinion testimony is limited to opinions

"(a) rationally based on the witness's perception; (b) helpful to

clearly understanding the witness's testimony or to determining a

fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702." Fed. R.

Evid. 701. A lay opinion will fail the second "helpfulness"

requirement if "the jury can readily draw the necessary inferences

and conclusions without the aid of the opinion." United States

v. Sanabria,

(1st Cir. 2011) (quoting Lynch v.

City of Boston,

(1st Cir. 1999)). We afford the

district court "considerable discretion" in deciding whether lay

itself, occurring a week or more prior to the statements at issue, was startling for the purposes of Rule 803(2). See, e.g., United States v. Taveras,

(1st Cir. 2004) ("The time lapse in most excited utterance cases is usually a few seconds or a few minutes. In extreme circumstances, we have even accepted a delay of a few hours." (citations omitted)). But see United States v. Shoup,

(1st Cir. 2007) ("[T]he time-lapse delimitation on an 'excited utterance' . . . is by no means a bright-line test . . . .").

- 20 - opinion testimony is admissible under Rule 701. United States v.

Belanger,

(1st Cir. 2018) (quoting United States

v. Valdivia,

(1st Cir. 2012)) (explaining that

such discretion stems from the consideration that "a district court

has a vantage point far superior to our own when it comes to the

happenings and details of a particular case").

Mercado's testimony satisfies the three requirements of

Rule 701 -- and on appeal, Irizarry does not specifically argue

that any of the requirements are not met. As a close relative of

Minor Y who was directly observing her relevant non-verbal

expressions, Mercado needed no specialized knowledge to form an

opinion that was rationally based on her perception of Minor Y's

expressions. Moreover, her testimony was helpful to the jury in

interpreting what Minor Y meant by the combination of her shrug,

facial gesture, and sad smile, in a way that the jurors would not

necessarily be well-equipped to do themselves, as they were not in

the room at the time, nor were they intimately aware of Minor Y's

mannerisms and non-verbal expressions in the way that a close

relative might be. See United States v. Campos Flores,

(2d Cir. 2019) ("The Rule allows a lay opinion that

'affords the jury an insight into an event that was uniquely

available to an eyewitness. In this respect, the Rule recognizes

the common sense behind the saying that, sometimes, "you had to be

there."'" (quoting United States v. Garcia,

(2d

- 21 - Cir. 2005))). Mercado had interacted with Minor Y on numerous

occasions in the past; based off her prior experiences with Minor

Y, she held a unique insight into the meaning of Minor Y's

expressions, insight which she accordingly shared with the jury.

Mercado's testimony is the type of opinion encompassed within Rule

701.

As to Irizarry's Rule 704 argument, that rule of evidence

makes clear that an "opinion is not objectionable just because it

embraces an ultimate issue." Fed. R. Evid. 704(a). Mercado's

opinion did not address Irizarry's mental state -- which would

have been impermissible under the plain text of Rule 704(b) -- and

instead merely indicated that Irizarry had "hurt" Minor Y, not

that Irizarry had unlawfully transported Minor Y with the intent

to commit a criminal sexual act, as required by

(a). That Irizarry "hurt" Minor Y does not necessarily

implicate sexual activity -- it could implicate solely, for

example, bodily injury or emotional harm -- and thus the opinion

did not go to the ultimate issue of guilt on the relevant count.

Put in other words, "it is not even the ultimate issue in the case,

but only one of the subordinate issues of fact bearing upon the

ultimate issue." Mutual Life Ins. Co. v. Frost,

(1st Cir. 1947).

As to Irizarry's contention that Mercado's opinion

testimony went to the credibility of Minor Y, the sole case from

- 22 - our circuit that Irizarry cites in this section, United States v.

Shay,

(1st Cir. 1995), actually took a different

view of the Eighth Circuit case from which Irizarry quotes, Bachman

v. Leapley,

(8th Cir. 1992). In Shay, we

rejected the argument that cases like Bachman required the

wholesale exclusion of any testimony concerning witness

credibility, and we instead explained that these cases stood for

the "more limited proposition" that testimony that "another

witness is lying or telling the truth is ordinarily inadmissible."

Shay,

(addressing expert opinion testimony). In

any event, Mercado's opinion testimony at issue did not go to Minor

Y's credibility, much less to the more limited question of whether

Minor Y was lying or telling the truth. Applying the standard of

review more favorable to Irizarry, we nonetheless hold that the

district court did not abuse its discretion in admitting Mercado's

opinion testimony.

IV. SENTENCING

Irizarry also appeals his sentence of 235 months'

imprisonment. We review a district court's sentence for

reasonableness, which involves both a procedural and substantive

inquiry. See United States v. Politano,

(1st Cir.

2008). "[W]e evaluate claims of unreasonableness in light of the

totality of the circumstances." United States v. Flores-

Machicote,

(2013) (citing Gall v. United States,

- 23 -

(2007)). We conclude that Irizarry's sentence was

procedurally and substantively reasonable, and therefore affirm

the district court's sentence.

A. Procedural Reasonableness

"In assessing the procedural reasonableness of a

sentence, we apply a 'multifaceted' abuse of discretion standard

in which 'we apply clear error review to factual findings, de novo

review to interpretations and applications of the guidelines, and

abuse of discretion review to judgment calls.'" United States v.

Reyes-Torres,

(1st Cir. 2020) (quoting United States

v. Nieves-Mercado,

(1st Cir. 2017)). The Supreme

Court has explained that procedural errors considered significant

under this assessment include "failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range." Gall,

.

No such errors are found in Irizarry's case. Irizarry

primarily argues on appeal that the district court improperly

applied the 5-level enhancement for a "pattern of activity

involving prohibited sexual conduct" because the jury acquitted

Irizarry of Count Two, precluding the finding of such a pattern.

However, "[a]s the law now plainly stands, 'acquitted conduct, if

- 24 - proved by a preponderance of the evidence, . . . may form the basis

for a sentencing enhancement.'" United States v. Alejandro-

Montañez,

(1st Cir. 2015) (omission in original)

(quoting United States v. Gobbi,

(1st Cir.

2006)).7 The jury's acquittal of Irizarry on Count Two, on the

other hand, was based on a beyond-a-reasonable-doubt standard.

Irizarry's challenge to the enhancement amounts to an allegation

that the district court's factual findings on Count Two lack a

sufficient evidentiary basis, and here Irizarry cannot overcome

the high hurdle of clear error review and the deference we accord

the district court's factual findings -- and we see no reason to

disturb such findings.

The district court judge observed all of Minor Y's

testimony concerning the two alleged sexual assaults, as well as

the testimony of her neighbor and family members. That the judge,

by a preponderance of the evidence, credited her version of events

does not rise to the level of clear error. See United States v.

Cortez-Vergara,

(1st Cir. 2017) (noting that "a

7 The United States Sentencing Commission has proposed a Guidelines amendment that would prohibit judges from considering certain forms of acquitted conduct for sentencing purposes. See

, 7224-7225 (Feb. 2, 2023). But we need not consider whether the amendment pertains to Irizarry's acquittal because the amendment remains pending. Carlton W. Reeves, Chair, U.S. Sentencing Comm'n, Remarks at the Public Meeting of the United States Sentencing Commission (April 5, 2023) ("We intend to resolve questions involving acquitted conduct [in 2024].").

- 25 - district court's choice between multiple permissible inferences

cannot be clearly erroneous"); United States v. Platte,

(1st Cir. 2009) (explaining that, under the clear error

standard, "we must honor such findings 'unless, on the whole of

the record, we form a strong, unyielding belief that a mistake has

been made'" (quoting Cumpiano v. Banco Santander P.R.,

(1st Cir. 1990))). Finding no clear error committed by

the district court (and no overall abuse of discretion), we hold

that Irizarry's sentence was procedurally reasonable.

B. Substantive Reasonableness

We review a preserved challenge to substantive

reasonableness under an abuse of discretion standard. See United

States v. Murchison,

, 28 n.9 (1st Cir. 2017). "A

sentence is substantively reasonable so long as the sentencing

court has provided a 'plausible sentencing rationale' and reached

a 'defensible result.'" United States v. Sayer,

(1st Cir. 2019) (quoting United States v. Martin,

(1st Cir. 2008)).

The district court provided an ample and plausible

sentencing rationale and discussed explicitly the factors that

Irizarry complains were ignored or overlooked. Irizarry raised

each of these considerations at sentencing and simply rehashes

them on appeal. The district court adopted the PSR guideline

calculations and considered the § 3553(a) factors. The judge

- 26 - considered Irizarry's age and his health problems, explicitly

stating that "the Court has considered the effect that a prolonged

sentence of imprisonment could have on Mr. Irizarry’s health, as

well as the Bureau of Prisons’ ability to provide proper medical

care to the defendant under custody."

There was no error, much less an abuse of discretion, in

not weighing Irizarry's age and health issues as much as Irizarry

would have liked, and we decline to reweigh the sentencing factors

on appeal. See United States v. Rodríguez-Caraballo,

(1st Cir. 2016). The district court's downward variance

from life imprisonment to 235 months' imprisonment resulted in a

sentence that was, in the court's words, "sufficient and not

greater than necessary." See United States v. Floyd,

(1st Cir. 2014) ("When, as in this case, a district court

essays a substantial downward variance from a properly calculated

guideline sentencing range, a defendant's claim of substantive

unreasonableness will generally fail."). That the sentence

practically amounts to a life sentence, as Irizarry complains,

does not sway our decision. See United States v. Bunchan,

(1st Cir. 2009).

V. CONCLUSION

In light of the foregoing, we affirm Irizarry's

conviction and sentence.

- 27 -