United States Court of Appeals For the First Circuit

No. 23-1130

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN MACVICAR,

Defendant, Appellant.

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

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

Before

Kayatta, Selya, and Rikelman, Circuit Judges.

Hunter J. Tzovarras on brief for appellant. Darcie N. McElwee, United States Attorney, and Brian S. Kleinbord, Assistant United States Attorney, on brief for appellee.

March 15, 2024 SELYA, Circuit Judge. After defendant-appellant Kevin

MacVicar entered a guilty plea to a single count of possession of

child pornography, see 18 U.S.C. § 2252A(a)(5)(B), the district

court imposed a below-guidelines sentence. The defendant

nonetheless complains that this seven-year sentence is both

procedurally flawed and substantively unreasonable. We disagree

— and, thus, we affirm the challenged sentence.

I

We briefly rehearse the relevant facts and travel of the

case. Because the defendant's sentence follows a guilty plea, we

draw the facts from the plea agreement, the presentence

investigation report (PSI Report), and the transcript of the

disposition hearing. See United States v. deJesús,

(1st Cir. 2021); United States v. Del Valle-Rodríguez,

(1st Cir. 2014).

In May of 2020, a federal agency — Homeland Security

Investigations (HSI) — was investigating users of an instant

messaging application in the San Francisco area. This application

allows users to chat and exchange images and videos. HSI's concern

was the distribution of child pornography on the platform. In

particular, HSI agents had identified one user who employed the

platform to upload pornographic images of children and traced the

IP address for that user's account to a residence in Hampden,

- 2 - Maine. Subsequent investigation revealed that the defendant

dwelled at that address.

On February 22, 2021, HSI agents conducted a traffic

stop of the defendant on his way to work. The agents told the

defendant that they had a search warrant for his residence and

that they "hope[d]" to speak with him about their investigation.

After agreeing to speak with the agents and giving them his cell

phone (which was also a target of the warrant), the defendant

admitted to using his account to upload child pornography onto the

messaging application.

Later that day, the agents executed the search warrant

at the defendant's residence. There, they seized twenty-five

electronic storage devices. During a forensic investigation of

these devices, the agents found over 1,000 photographs and 200

videos depicting child pornography, some of which dated back to

2012.

At his initial appearance, the defendant waived

indictment and entered a guilty plea to a single charge — proffered

through an information — of possession of child pornography. See

18 U.S.C. § 2252A(a)(5)(B). The district court accepted his plea

and ordered the preparation of a PSI Report.

In the PSI Report, the probation office set the base

offense level (BOL) at eighteen. See USSG §2G2.2(a). It then

recommended several enhancements to the BOL due to, inter alia,

- 3 - the ages of the minor victims depicted in the files, the graphic

content of the files, and the number of files retrieved from the

defendant's possession. After applying an acceptance-of-

responsibility reduction, see USSG §3E1.1, the adjusted offense

level was lowered to thirty-three. Because the defendant had no

criminal history, he was placed in criminal history category I.

These calculations yielded a guideline sentencing range (GSR) of

135 to 168 months' imprisonment. The defendant advanced two

objections to the PSI Report — neither of which is relevant here.1

A revised PSI Report was prepared, but the GSR remained intact.

At the disposition hearing, the defendant urged the

court not to impose a term of imprisonment or, in the alternative,

to impose no more than a one-year term of imprisonment. The

defendant emphasized that his difficult childhood, honorable

military service, and ongoing mental health issues warranted a

sentence significantly below the bottom of the GSR. He added that

"he ha[d] proven that he's not a danger to society," that "he

doesn't need individual deterrence," and that general deterrence

1 In his first objection, the defendant requested that the probation office amend several paragraphs in the report to note that the images and videos were located in "unallocated space." The probation office amended four paragraphs to this effect. In his second objection, the defendant requested that one of his proposed supervised release conditions be amended to allow unsupervised contact with his son. The probation office declined this request, and the defendant did not renew it before the district court.

- 4 - would best be served through the court's recognition of an

individual's genuine effort to seek treatment and the court's

imposition of a sentence that reflects that recognition.

In support, the defendant introduced the testimony of

his mental health service provider, who explained that the

defendant had engaged in extensive mental health treatment since

the inception of his criminal case. The service provider testified

that the defendant was "fully engaged in treatment" and

"continue[d] to make . . . progress." The service provider also

opined that the defendant posed "a very low risk of recidivism."

Approaching the problem from a different angle, the defendant's

wife testified as to the "harm" that the defendant's incarceration

would have on the defendant and his family. And in his allocution,

the defendant echoed these sentiments, assuring the court that he

was "dedicated to proving to the community, [his] family, and the

justice system" that he would not engage in the offensive conduct

again.

The government took a somewhat different view. It

recommended that the court impose a 120-month term of immurement.

The government noted, among other things, that the content of the

files — child pornography depicting the rape of girls — and the

gratification that the defendant expressed from viewing this

content demanded an incarcerative term. Although the government

recognized that some of the

(a) factors weighed in

- 5 - the defendant's favor, it made clear that other factors — such as

the seriousness of the offense and respect for the law — cut the

other way.

The district court adopted the entirety of the revised

PSI Report (including the proposed guideline calculations). The

court noted, though, that — in its judgment — a sentence within

the GSR was "greater than necessary to achieve the underlying goals

set forth in [section] 3553(a)." Having undertaken an

"individualized assessment of [the defendant's] situation," the

court determined that a downwardly variant sentence was

appropriate. Specifically, the court explained that "the reason"

it would impose such a sentence was to "give [the defendant] some

credit for having tried to" address the underlying causes of his

actions. Relatedly, the court found the defendant to be a

"prosocial member of society." But in the end, the court concluded

that "[a]ll of those things which mitigate a sentence of

incarceration are, in my mind, outweighed" by the aggravating

factors. The court proceeded to impose an incarcerative sentence

of eighty-four months' imprisonment.

This timely appeal followed.

II

"Appellate review of claims of sentencing error entails

a two-step pavane." United States v. Matos-de-Jesús,

(1st Cir. 2017); see United States v. Rijos-Rivera, 53

- 6 - F.4th 704, 707 (1st Cir. 2022). In this exercise, "we first

determine whether the sentence imposed is procedurally reasonable

and then determine whether it is substantively reasonable." United

States v. Clogston,

(1st Cir. 2011).

The procedural component of a sentence includes possible

"errors such as failing to consider appropriate sentencing

factors, predicating a sentence on clearly erroneous facts, or

neglecting to explain the rationale for a variant sentence

adequately." Del Valle-Rodríguez,

. The

substantive component of a sentence "focuses on the duration of

the sentence in light of the totality of the circumstances."

"At both steps of this pavane, our review of preserved

claims of error is for abuse of discretion." United States v.

Díaz-Lugo,

(1st Cir. 2020); see United States v.

Vélez-Andino,

, 112 (1st Cir. 2021). If a party fails

to preserve claims of error in the court below, we review only for

plain error. See United States v. Duarte,

(1st

Cir. 2001); see also United States v. Ruiz-Huertas,

(1st Cir. 2015).

With this framework in place, we turn to the defendant's

assignments of error. Here, the defendant challenges both the

procedural integrity and the substantive reasonableness of his

sentence. We address each challenge in turn.

- 7 - A

The defendant's claim of procedural error centers on the

allegation that the district court failed to "consider [the

defendant's] significant treatment efforts and his need for

continued treatment" when determining the appropriate sentence.

Because this allegation was not advanced below, we review for plain

error. See Duarte,

.

"The plain error hurdle is high." United States v.

Hunnewell,

(1st Cir. 1989). To prevail under

plain error review, the defendant must demonstrate "(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantive rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Duarte,

. Here, we

discern no error at all and, thus, no plain error.

We begin with first principles. When imposing a

sentence, a district court "must consider all [the] relevant

section 3553(a) factors." Clogston,

; see

(a). But the court "need not do so mechanically." United

States v. Vargas-Dávila,

(1st Cir. 2011). As we

have said, a sentencing court "is not required to address those

factors, one by one, in some sort of rote incantation when

explicating its sentencing decision." United States v. Dixon, 449

- 8 - F.3d 194, 205 (1st Cir. 2006); see United States v. Sosa-González,

(1st Cir. 2018); Ruiz-Huertas,

.

In the case at hand, the defendant asserts that the

sentencing court "exclu[ded]" certain mitigating factors from its

sentencing calculus. Specifically, the defendant suggests that

the court failed to consider "his significant treatment efforts

and his need for continued treatment." The record, though, makes

manifest that the sentencing court did not overlook these factors.

To begin, the mitigating factors identified by the

defendant were well-argued before the court at sentencing. The

defendant presented testimony by his mental health service

provider about his sincere engagement and progress in therapy,

including an opinion that continuing therapy in prison would hinder

his progress. So, too, the defendant testified as to his progress

in treatment and his desire to continue treatment. And these

factors were specifically acknowledged by the district court when

it imposed the challenged sentence. The district court observed

that the defendant's mental health treatment had resulted in much

"self-reflection and honesty and introspection." Indeed, the

court stated that it was imposing a downwardly variant sentence

because it gave the defendant's genuine efforts on these fronts

"some credit."

The defendant's narrow focus on his need for treatment

and rehabilitation gives too little credit to the reality that an

- 9 - offender's rehabilitation is but one factor in the sentencing

calculus. See

(a) (listing factors). In this

instance, the court made clear that it had considered all the

relevant factors. Such a statement is "entitled to some weight."

United States v. Dávila-González,

(1st Cir. 2010);

see Clogston,

. And this is particularly so when

— as in this case — the record makes pellucid that the sentencing

court adequately considered all the relevant factors in

determining the defendant's sentence.

The defendant cites United States v. Olhovsky,

(3d Cir. 2009), for the proposition that a district court's

failure to "mention" a mitigating factor when pronouncing sentence

may constitute procedural error. In Olhovsky, the Third Circuit

held that the sentencing court procedurally erred because it

"focused on [some factors] to the exclusion of [the] other

sentencing factors."

. As we already have indicated,

though, the record here shows with conspicuous clarity that the

court did not exclude any factors from its sentencing calculus.

It considered all the relevant factors, including the mitigating

factors that the defendant claims the court failed to consider

(his "significant treatment efforts and his need for continued

treatment").

In all events, a sentencing court's failure to mention

a mitigating factor does not automatically constitute procedural

- 10 - error. See Díaz-Lugo,

. We have stated that when

the court "did not explicitly mention [such a factor] during the

sentencing hearing," it may well suggest that the factor was

"unconvincing, not ignored." United States v. Lozada-Aponte,

(1st Cir. 2012). So it is here.

That ends this aspect of the matter. Because the record

shows that the sentencing court adequately considered all of the

relevant factors when it imposed the defendant's sentence, we

reject the defendant's claim of procedural error.

B

We turn next to the defendant's claim that his sentence

was substantively unreasonable. "[W]here a criminal defendant

advocates for a sentence shorter than the one ultimately

imposed[,]. . . [n]othing more is needed to preserve the claim

that a longer sentence is unreasonable." Holguin-Hernandez v.

United States,

(2020); see United States v.

Jurado-Nazario,

(1st Cir. 2020). Our standard

of review, therefore, is abuse of discretion. See Gall v. United

States,

(2007); deJesús,

.

When considering the reasonableness of a given sentence,

"there is not a single appropriate sentence but, rather, a universe

of reasonable sentences." United States v. Rivera-González,

(1st Cir. 2015); see Ruiz-Huertas,

.

Ordinarily, when a sentence is within a properly calculated GSR,

- 11 - a defendant "faces a steep uphill climb" to demonstrate that the

length of that sentence is unreasonable. deJesús,

.

"[T]he climb is even steeper where, as here, a defendant contests

the length of a downwardly variant sentence." Id.; see United

States v. Millán-Machuca,

, 32 (1st Cir. 2021). In the

last analysis, "the hallmarks of a substantively reasonable

sentence are a plausible sentencing rationale and a defensible

result." United States v. Rodríguez-Cruz,

(1st

Cir. 2021).

In this instance, the district court's rationale is

thoroughly plausible. The court weighed the relevant sentencing

factors and explained why the sentence it imposed was "not greater

than necessary" to achieve the goals of sentencing. In particular,

the court explained — when it rejected the defendant's request for

a no-jail sentence — that the offense of conviction was "nowhere

near the lower end of the spectrum for [a child pornography

possession] case." The court considered the defendant's personal

characteristics and history but found that the mitigating factors

were "outweighed by at least a few things," including "the

seriousness of the offense" and "just punishment of the offense."

The court also observed that the defendant's conduct affected "real

victims" and fed "the demand side of a market which causes the

supply of a horrible, unspeakable product." In light of these

- 12 - findings, we are bound to regard the court's sentencing rationale

as plausible.

The question, then, is whether the sentence is

defensible. We conclude that it is. The defendant possessed

thousands of images and videos of child pornography spanning at

least nine years. These images and videos depicted the sexual

abuse and exploitation of prepubescent children, including

children under the age of five. In addition, the corresponding

messages posted by the defendant on the messaging application

indicated that the defendant derived gratification from viewing

and sharing this content. The heinous impact of the child

pornography market on society cannot be understated, nor can the

defendant's place in that market. Given this chiaroscuro record,

we cannot say that the challenged sentence is indefensible.

The defendant demurs, insisting that the length of the

sentence imposed by the district court was unreasonable "because

the district court placed too much weight" on factors related to

the offense of conviction "and not enough weight on . . . other

sentencing factors."2 We need not tarry. "[A]s we repeatedly have

2For the sake of completeness, we add that the defendant reprises his reliance on Olhovsky and argues that his sentence is substantively unreasonable because the court below — like the district court in Olhovsky — focused too much on some factors (in this case, the offense of conviction and punishment) and not enough on other factors (in this case, treatment and rehabilitation). Because this argument is merely a variation on a theme already explored and rejected, we do not address it separately.

- 13 - stated, '[t]hat [a] sentencing court chose not to attach to certain

of the mitigating factors the significance that the [defendant]

thinks they deserved does not make [his] sentence unreasonable."

United States v. Sansone,

(1st Cir. 2024) (second,

third, and fourth alterations in original) (quoting Clogston,

); see United States v. De Jesús-Torres,

(1st Cir. 2023); United States v. Ortiz-Pérez,

(1st Cir. 2022).

The short of it is that the court below articulated a

plausible sentencing rationale and reached a defensible result.

The defendant's claim of substantive unreasonableness must,

therefore, fail.

III

We need go no further. For the reasons elucidated

above, the defendant's sentence is

Affirmed.

- 14 -