United States Court of Appeals For the First Circuit

No. 22-1550

UNITED STATES OF AMERICA,

Appellee,

v.

JASON COLCORD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Gelpí, Lynch, and Rikelman, Circuit Judges.

Andrew Levchuk on brief for appellant.

Benjamin Block, Assistant United States Attorney, and Darcie N. McElwee, United States Attorney, on brief for appellee.

January 8, 2024 GELPÍ, Circuit Judge. Defendant Jason Colcord

("Colcord") pled guilty to one count of knowingly accessing with

intent to view material that contained over 900 child pornography

images, in violation of 18 U.S.C. § 2252A(a)(5)(B). He was

sentenced to 145 months’ imprisonment, near the low-end of his

advisory guidelines sentencing range, followed by five years of

supervised release. Colcord challenges his within-the-range

sentence, arguing that the district court’s decision to not impose

a downwardly variant sentence was substantively unreasonable.

Having discerned no error, we affirm.

I. BACKGROUND

We begin with a review of the relevant facts. As this

appeal follows a guilty plea, we draw the facts from the plea

agreement, the change-of-plea colloquy, the uncontested portions

of the presentence investigation report ("PSR"), and the

sentencing hearing transcript. See United States v. Spinks,

(1st Cir. 2023) (quoting United States v.

Ubiles-Rosario,

, 280 n.2 (1st Cir. 2017)).

A. Child Pornography Charge and Plea Agreement

In January 2020, the Federal Bureau of Investigation

determined that an Internet Protocol ("IP") address located at a

residence in Maine was offering to share child pornography images

through the BitTorrent ("BT") network, a type of peer-to-peer

communication software. Law enforcement then downloaded,

- 2 - reviewed, and confirmed that the files consisted of child

pornography images and videos. On February 4, 2020, law

enforcement verified that Colcord was associated with the

residence and that he has an extensive criminal history including

sexual abuse of a minor. Then, on February 20, 2020, law

enforcement searched the residence and interviewed Colcord.

During the interview, Colcord consented to law

enforcement searching his Samsung Galaxy S9 cell phone and admitted

to using BT to download pornography onto his phone. On

February 26, 2020, the cell phone was sent to the Department of

Homeland Security Investigation ("HSI") office in Boston to

extract the child pornography images from the phone. And on

July 20, 2020, the HSI office in Maine was notified that 710 images

and three videos of prepubescent minors engaged in sexual acts

were extracted from the phone, which the PSR calculated as a total

advisory guidelines quantity of 935 child pornography images. Many

of the images, which Colcord's phone data indicated he viewed

multiple times between December 2019 and February 2020, depicted

pubescent and prepubescent girls engaged in sexually explicit

conduct with adult men. Many of the images depicted minors who

were under twelve years old.

On November 19, 2021, Colcord pled guilty to one count

of knowingly accessing with intent to view material that contained

child pornography images, in violation of 18 U.S.C.

- 3 - § 2252A(a)(5)(B), pursuant to a plea agreement. The plea agreement

stated that "the parties agree to make a non-binding recommendation

for a sentence of 120 months imprisonment" and that "the [c]ourt

has the discretion to impose any lawful sentence." The district

court then advised Colcord that "any recommendation made to [the

court] at sentencing is not binding" which Colcord stated he

understood. Colcord also agreed to waive his right to appeal a

sentence of 140 months or less.

B. Sentencing

The PSR provided the calculations for the total offense

level and guideline range which Colcord did not object to. A total

offense level of twenty-eight combined with a criminal history

category of six resulted in an advisory guideline sentencing range

of 140 to 175 months. At sentencing, Colcord and the government

did as the plea agreement stated and jointly recommended a sentence

of 120 months. Colcord argued that 120 months was sufficient and

warranted on account of his family history and his efforts to

support his mother.

Colcord appeared before the district court for a

sentencing hearing on June 29, 2022. The district court noted

"that since Kimbrough, a district court makes procedural error

when it fails to recognize its discretion to vary from the

guideline range based on a categorical policy disagreement with

the guideline." The district court then acknowledged "that child

- 4 - pornography sentencing guidelines typically do not actually

reflect and determine the actual sentence[,] at least in

non-production cases." After explaining this, the district court

expressed that the child pornography enhancements as applied to

Colcord were appropriate.

In imposing the sentence, the district court considered

the factors in

(a), specifically noting the nature

of the offense and the need to protect the public:

The nature of this offense, Mr. Colcord, like all child pornography cases, shocks the conscious. The images recovered from your cell phone which number in excess of 700 depict child pornography involving abuse of pubescent and prepubescent girls, which definition meets -- which images satisfy the definition of sadomasochism, specifically prepubescent girls engaged in vaginal intercourse with adult males. So, it is almost beyond the reach of any mere mortal to capture how deeply depraved and terrorizing the creation of these images are for the sexual edification of a marketplace of consumers, and you are one such consumer.

The district court then acknowledged the toll of this offense upon

the victims highlighting their pain and the "rippling of

dysfunction" that will permeate the community. The district court

was clear that "[i]t's not just scrolling and clicking." The

district court also pointed out Colcord's role as a consumer which

creates a demand and drives the production of such images. As for

Colcord's personal history, the district court noted his difficult

past, specifically, how his mother was heavily involved with

- 5 - alcohol and drugs leading to abuse and neglect, as well as the

time he spent in foster care. The district court considered

Colcord's "robust" criminal history "hallmarked by violence" which

included "sexual abuse of a minor, assault, violations of

conditions of release, violating protective orders, failure to

register as a sex offender, and domestic violence" while

highlighting the "significant concern [this criminal history

causes] for the risk . . . pose[d] to the public." The district

court also explicitly spelled the § 3553(a) factors, including the

apparent "need for just punishment to ensure adequate

deterrence . . . and to protect the public from further crimes by

[Colcord]." Then, the district court acknowledged Colcord's

improvement with his anger management for the past two years, his

lack of recent or significant drug use, and his employment. Based

on each of these considerations, the district court imposed a

sentence of 145 months’ imprisonment followed by five years of

supervised release. Colcord timely appealed this sentence.

II. DISCUSSION

A. Standard of Review

There are two aspects in analyzing the reasonableness of

a sentence: procedural and substantive. United States v.

Gomera-Rodríguez,

(1st Cir. 2020); United States

v. Irizarry-Sisco,

(1st Cir. 2023). "If an

appellant makes no claim of procedural [unreasonableness], as is

- 6 - the case here, we limit our review to the substantive

reasonableness of the sentence." United States v. Prosperi,

(1st Cir. 2012) (citing United States v. Martin,

(1st Cir. 2008)). "We review preserved substantive

reasonableness claims for abuse of discretion." Gomera-Rodríguez,

(citing United States v. Aquino-Florenciani,

(1st Cir. 2018)); see Holguin-Hernandez v. United States,

(2020) (explaining that a sentence's

substantive reasonableness is preserved for appellate review

"where a criminal defendant advocates for a sentence shorter than

the one ultimately imposed"). On the other hand, unpreserved

arguments are reviewed for plain error. United States v.

Hassan-Saleh-Mohamad,

(1st Cir. 2019).

B. Substantive Reasonableness

A sentence is substantively reasonable if its rationale

is plausible and resulted in a defensible outcome.

Gomera-Rodríguez,

. "There is no one reasonable

sentence in any given case but, rather, a universe of reasonable

sentencing outcomes." United States v. Clogston,

(1st Cir. 2011) (citing Martin,

).

"[R]easonableness is a protean concept," Martin,

,

and "[a]s we have repeatedly emphasized, a challenge to the

substantive reasonableness of a sentence is particularly

unpromising when the sentence imposed comes within the confines of

- 7 - a properly calculated" advisory guidelines sentencing range.

Hassan-Saleh-Mohamad,

(quoting United States v.

O'Brien,

(1st Cir. 2017)). "Within-guidelines

sentences are entitled to a presumption of reasonableness," United

States v. Rodríguez-Adorno,

(1st Cir. 2017),

which Colcord has not overcome. See also Rita v. United States,

(2007) ("The first question is whether a court

of appeals may apply a presumption of reasonableness to a district

court sentence that reflects a proper application of the Sentencing

Guidelines. We conclude that it can.").

Colcord advances three arguments against the presumption

of the substantive reasonableness of his sentence whereas the

government defends the sentence as substantively reasonable.

First, he argues that the district court "conflated [his own]

conduct with that of those who committed the more serious

crimes . . . captured in the images and videos." Second, he argues

that the district court allotted insufficient weight to his

personal mitigating circumstances in considering the § 3553(a)

factors.1 Third, he argues that the district court's rejection of

the parties' joint recommendation of a 120-month sentence was not

Despite Colcord's underdeveloped argumentation concerning 1

the weighing of § 3553(a) factors, we assume in his favor that it is not waived. See Hassan-Saleh-Mohamad,

n.8; United States v. Zannino,

(1st Cir. 1990).

- 8 - "convincingly address[ed]." We address the deficiency of each

argument seriatim.

Colcord's conflation argument is a mischaracterization

of the district court's comments on the nature of the offense.

The district court's comments specifically referred to Colcord's

role as a "consumer" which added to the "demand" for child

pornography. The district court then emphasized how this demand

results in a "rippling dysfunction" for the victims due to the

Internet's propensity to "last forever." The creation and

substance of the images were mentioned to highlight how consumers

create the demand for the production of these images. See

Hassan-Saleh-Mohamad,

(upholding a within-the-range

sentence imposed for a non-production child pornography offense

where the district court weighed the harm the defendant imposed in

"fueling demand and supply" in this illicit market);

Gomera-Rodríguez,

(same); United States v. Monroe,

Nos. 19-1869, 19-1872,

, at *2 (1st Cir. Nov. 10,

2021) (upholding an upwardly variant sentence for production and

possession of child pornography). This demonstrates that the

district court imposed the sentence specifically based on

Colcord's own conduct as a consumer rather than the conduct

portrayed in the images and videos.

Further, Congress has recognized that reducing the

demand for this exploitative market is as necessary as reducing

- 9 - the supply. United States v. Blodgett,

(1st Cir.

2017); cf. Osborne v. Ohio,

(1990)

(recognizing that it is "surely reasonable for the State to

conclude that it will decrease the production of child pornography

if it penalizes those who possess and view the product, thereby

decreasing demand"). The Internet has become a mechanism for

defendants to view these distressing images "with virtual

anonymity" and re-victimize these children "again when these

images of their sexual assault are traded over the Internet in

massive numbers by like-minded people across the globe." H.R.

Rep. No. 112-638 (2012) (quoting U.S. Dep't of Just., Nat'l

Strategy for Child Exploitation Prevention & Interdiction: A

Report to Congress (2010)). The United States Sentencing

Commission reported that, in 2019, "non-production child

pornography offense involved a median number of 4,265 images, with

some offenders possessing and distributing millions of images and

videos." U.S. Sent'g Comm'n, Federal Sentencing of Child

Pornography Non-Production Offenses 4 (2021). "We add, moreover,

that the defendant's attempt to downplay the severity of his

conduct because he was a viewer of vile material, not a producer

or distributor of it, is unpersuasive." Blodgett,

.

Colcord relatedly argues that the district court's

decision not to impose a downwardly variant sentence for his

non-production offense, as other courts have done based on a

- 10 - categorical policy disagreement, is in error.2 At sentencing, the

district court explicitly acknowledged its ability to impose a

downwardly variant sentence based on a categorical policy

disagreement, going so far as to note the 2012 Sentencing

Commission report which expressed that child pornography

sentencing guidelines may inaccurately apply "so many

enhancements" in non-production cases. Yet, even in light of this

discretion, the district court expressed that the enhancements

applied here were warranted due to the quantity of images accessed

"involving abuse of pubescent and prepubescent girls," the nature

of the offense, and its effect on society, reflecting the district

court's thoughtfulness in choosing a sentence that "fit both the

2 There are two aspects to this specific argument that we briefly address. First, this argument was not preserved below and is subject to plain error review. But even if we assume in Colcord's favor that the argument is preserved and abuse of discretion applies, this argument still fails for the reasons we discuss. Hassan-Saleh-Mohamad,

. Second, in making this argument, Colcord makes a cursory reference to Kimbrough error and yet misunderstands the circumstances in which a district court can be said to have committed this error. Colcord did not pinpoint any specific comment to show that the district court did not understand its discretion to vary. Instead, Colcord argues that it was error for the district court to choose to not have a categorical policy disagreement with the guidelines as other district courts have done. We foreclose this line of reasoning by reiterating what we said before: "While district courts may certainly conclude that the guidelines sentencing range in child pornography cases is harsher than necessary in many cases, there is no requirement that a district court must categorically reject the child pornography guidelines based on their provenance." Aquino-Florenciani,

.

- 11 - offender and the circumstances of the offense." Clogston,

. The district court's awareness of its capacity to

impose a downwardly variant sentence is exhibited in the record

and its decision to not impose such a sentence is not error.

United States v. Stone,

(1st Cir. 2009)

(explaining that a district court only commits Kimbrough error

when "it fails to recognize its discretion to vary from the

guideline range" but not when it chooses to impose a sentence

within the guideline range (citations omitted)). We have

recognized the broad discretion that district courts possess to

agree with the guidelines and continue to do so. Stone,

.

Next, Colcord's weight argument falls flat because

§ 3553(a) does not mandate courts to apply a certain weight to

each factor but only to consider each factor in imposing a sentence

"sufficient, but not greater than necessary."

(a).

"[T]he weighting of those factors is largely within the court's

informed discretion." Clogston,

. And Colcord

fails to mention any case stating otherwise. See United States v.

Morales-Negrón,

(1st Cir. 2020) ("But 'a

disagreement with the district court's weighing of the different

sentencing factors' does not alone constitute error." (quoting

United States v. Contreras-Delgado,

(1st Cir.

2019))). Moreover, the sentencing transcript demonstrates that

- 12 - the district court considered Colcord's past, highlighting his

rough childhood and his significant criminal history. While

Colcord surely would want the district court to give greater weight

to his personal mitigating circumstances, the district court was

entirely within its discretion to find that these mitigating

factors were outweighed by the seriousness of the offense,

Colcord's criminal history, and the need to protect the public.

Gall v. United States,

(2007) ("It has been uniform

and constant in the federal judicial tradition for the sentencing

judge to consider every convicted person as an individual and every

case as a unique study in the human failings that sometimes

mitigate, sometimes magnify, the crime and the punishment to

ensue." (quoting Koon v. United States,

(1996))).

"That 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." Clogston,

.

Lastly, Colcord's argument that he should have received

a sentence of 120 months also fails to overcome the presumption of

reasonableness of his sentence. He simply argues that the district

court should have imposed a 120-month sentence as both parties

recommended and that the district court rather chose to impose 145

months because of its personal disgust towards the offense.

However, "[t]he customary rule is that the district court is not

- 13 - bound by the parties' recommendations as to the length of the

sentence to be imposed." United States v. Rijos-Rivera,

(1st Cir. 2022) (citing United States v. Mulero-Vargas,

(1st Cir. 2022)). Nor is there evidence in the

record of "personal disgust" by the district court as Colcord

claims. See Hassan-Saleh-Mohamad,

("And there is no

evidence that the district court imposed the sentence based on

being 'completely offended by the crime,' . . . rather than based

on a reasoned consideration of the relevant sentencing factors.").

Colcord also asserts that the district court did not

adequately explain why the recommended 120-month sentence would

not have sufficed to meet the goals of sentencing. He points out

that his pretrial release conditions proved he posed minimal danger

to the community, therefore, imposing a greater sentence due to

such purported danger now is inconsistent.3 This line of

Under an abuse of discretion standard, the burden a 3

defendant must carry to overturn a sentence is an uphill climb and especially so when the sentence imposed is within the advisory guidelines range. That suffices to say that differences in findings of a defendant's danger to the community -- which is only one factor of many to consider at sentencing -- for release prior to sentencing and at sentencing is not enough alone to overcome the highly deferential review of a sentence. United States v. De la Cruz-Gutiérrez,

(1st Cir. 2018) (emphasizing the "heavy burden" a defendant must carry to "[s]uccessfully challeng[e] the substantive reasonableness of a sentence"); Hassan-Saleh-Mohamad,

("And generally, the district court did not need to 'be precise to the point of pedantry' in explaining its weighing of the § 3553(a) factors." (quoting United States v. Turbides-Leonardo,

(1st Cir. 2006)).

- 14 - reasoning, however, ignores the different factors that district

courts consider when deciding to release or detain a defendant

before trial versus imposing a sentence. In deciding to release

or detain a defendant before trial, the district only considers

whether "the person is not likely to flee or pose a danger to the

safety of any other person or the community if released."

(a)(1). However, during sentencing, knowledge

concerning the specific offense alongside the defendant's personal

history and other factors are taken into consideration to determine

the appropriate sentence.

(a) (listing out

factors). Accordingly, during sentencing, the district court is

within its traditional, discretionary role to utilize the PSR,

arguments from counsel, and facts to impose a sentence that is

sufficient but not greater than necessary. Koon,

(explaining the breadth of discretion that lies with the sentencing

judge).

At sentencing, the district court found that Colcord's

extensive criminal history which involved "sexual abuse of a minor,

assault, violations of conditions of release, violating protective

orders, failure to register as a sex offender, and domestic

violence" combined with the effect of this offense warranted a

with-the-range sentence of 145 months. In rejecting Colcord’s

request to impose a downwardly variant sentence of 120 months, the

district court explained:

- 15 - [I]t's rare that I see a defendant stand before me for sentencing for this type of offense who has a criminal history -- much of a criminal history, frankly, never mind a criminal history as robust as yours and one that is hallmarked by violence, violation of court orders, including violations of conditions of release, all of which give me significant concern for the risk you pose to the public. For those reasons, I'm not going to impose a downwardly variant sentence in this case.

This leads us to conclude that the district court sufficiently

addressed its decision not to vary downward considering relevant

sentencing factors, including Colcord’s significant criminal

history and risk to the public. Thus, the district court's

explanation concerning these factors, the nature of the offense,

and Colcord's effect as a proponent of demand for child pornography

images, certainly provided a plausible rationale that resulted in

a defensible within-the-range sentence.

III. CONCLUSION

For the reasons stated, Colcord's substantive

reasonableness challenge fails, and his sentence is affirmed.

- 16 -