United States of America v. Noel Aquino-Florenciani

United States Court of Appeals
For the First Circuit
No. 17-1178
UNITED STATES OF AMERICA,
Appellee,
v.
NOEL AQUINO-FLORENCIANI,
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
Torruella, Selya, and Kayatta,
Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
James I. Pearce, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, Kenneth A. Blanco,
Assistant Attorney General, Criminal Division, United States
Department of Justice, John P. Cronan, Acting Assistant Attorney
General, Criminal Division, United States Department of Justice,
Rosa E. Rodríguez-Vélez, United States Attorney, Thomas F.
Klumper, Assistant United States Attorney, Acting Chief, Appellate
Division, and Elba I. Gorbea-Padró, Assistant United States
Attorney, on brief for appellee.
June 25, 2018

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KAYATTA, Circuit Judge. Defendant Noel Aquino-
Florenciani pleaded guilty to both producing and possessing child
pornography and was sentenced to 264 months' imprisonment to be
followed by ten years of supervised release. On appeal, Aquino-
Florenciani seeks resentencing, raising three claims of error. We
affirm.
I.
In October 2015, federal agents detected that a computer
associated with a particular IP address had shared a file
containing child pornography. After the agents identified the
location of the computer, they obtained a warrant to search the
premises and seize electronic equipment. When they executed the
search, the agents interviewed the internet account owner, who
revealed that he shared his access with a family member and next-
door neighbor, Noel Aquino-Florenciani. The agents then went to
Aquino-Florenciani's apartment, where they searched (with his
consent) various electronic devices. As the search ensued, Aquino-
Florenciani told the agents that he used a peer-to-peer file-
sharing service to download child pornography, had done so for
approximately one year, and had over fifty pornographic videos of
children on his computer. He also stated that he had never
sexually touched or photographed a minor.
Agents eventually found on Aquino-Florenciani's cellular
phone a video of Aquino-Florenciani performing sexual acts on a

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prepubescent minor male. In a subsequent interview with law
enforcement, Aquino-Florenciani admitted that he made the video.
Aquino-Florenciani was charged with one count of producing child
pornography in violation of 18 U.S.C. § 2251(a) and (e) and one
count of possessing child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2). In April 2016, he pleaded guilty to
both counts. The Presentence Investigation Report ("PSR")
calculated a total offense level of thirty-eight, which, coupled
with Aquino-Florenciani's Criminal History Category of I, yielded
an advisory guidelines range of 235 to 293 months' imprisonment.
Aquino-Florenciani made no objection to the accuracy of
the guidelines calculation. Rather, he argued that because the
child pornography guidelines are not empirically based, the
district court should not rely on them. The district court found
that the guidelines range as calculated in this case
"satisfactorily reflect[ed] the components of the offense by
considering its nature and circumstances." The district court
then imposed a custodial sentence of 264 months' imprisonment, to
be followed by ten years of supervised release. As part of Aquino-
Florenciani's supervised release conditions, the district court
directed that Aquino-Florenciani "shall not possess or use . . .
any . . . device with internet accessing capability at any time or
place without prior approval from the probation officer." The
district court further directed that Aquino-Florenciani "shall

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permit routine inspections of his computer system or any other
computer system maintained in his possession," and that he shall
"consent to the installation of systems that will enable the
probation officer or designee to monitor [Aquino-Florenciani's
electronic devices]." Aquino-Florenciani did not object to these
conditions.
II.
Aquino-Florenciani now appeals his sentence, contending
that the supervised release condition restricting his possession
and use of internet-capable electronics was not compliant with the
mandates of 18 U.S.C. § 3583(d) and that the district court's use
of the child pornography guidelines was an abuse of discretion.
He also raises one additional issue in a sealed brief.
A.
We address first Aquino-Florenciani's argument that the
supervised release condition prohibiting him from possessing or
using computers, cell phones, or other internet-capable devices
without prior approval from his probation officer amounts to an
excessive "total ban" on his internet use. In his view, such a
ban contradicts the requirements of 18 U.S.C. § 3583(d) that
special conditions of supervised release be "reasonably related
to" the factors set forth in 18 U.S.C. § 3553(a), "involve[] no
greater deprivation of liberty than is reasonably necessary" to
comport with the purposes described in section 3553(a), and be

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"consistent with any pertinent policy statements issued by the
Sentencing Commission." United States v. Hinkel, 837 F.3d 111,
125 (1st Cir. 2016) (citing these requirements). Aquino-
Florenciani concedes that he did not object to the imposition of
the condition about which he now complains and that plain error
review thus applies. See United States v. Mejía-Encarnación, 887
F.3d 41, 45 (1st Cir. 2018). Under this standard, we reverse only
where a defendant shows that: (1) an error occurred, (2) this
error was clear or obvious, (3) the error affected the defendant's
substantial rights, and (4) the error impaired the fairness,
integrity, or public reputation of judicial proceedings. Id.
We reject, first, Aquino-Florenciani's characterization
of the condition at issue as a "total ban" on his use of the
internet. He is permitted to use the internet and possess
internet-capable electronic devices, subject to approval from his
probation officer and electronic monitoring. Should his probation
officer behave unreasonably or the condition prove too onerous in
2035 -- the year in which he is currently scheduled for release
-- he may request modification of the condition pursuant to 18
U.S.C. § 3583(e)(2).
Having properly characterized the condition, we also
reject Aquino-Florenciani's challenge to its substance. "We have
upheld broad restrictions on internet access as a condition of
supervised release 'where (1) the defendant used the internet in

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the underlying offense; (2) the defendant had a history of
improperly using the internet to engage in illegal conduct; or
(3) particular and identifiable characteristics of the defendant
suggested that such a restriction was warranted.'" Hinkel, 837
F.3d at 126 (quoting United States v. Perazza-Mercado, 553 F.3d
65, 70 (1st Cir. 2009)). The first two of these factors are
plainly present here; the underlying offense involved extensive
downloading of child pornography and this behavior lasted for at
least a year. And we need not even decide whether the third factor
is met because the use of the disjunctive "or" indicates that
meeting a single factor justifies the imposition of restrictions
on internet access. Cf. Clark Sch. for Creative Learning, Inc. v.
Phila. Indem. Ins. Co., 734 F.3d 51, 56–57 (1st Cir. 2013) (noting
that the disjunctive "or" implies that terms are to be read
separately). The bottom line is that the nature of Aquino-
Florenciani's crimes is such that we cannot say that the imposition
of restrictions on his possession and use of internet-connected
devices as a condition of supervised release was clearly or
obviously error, so Aquino-Florenciani's claim fails plain error
review.
B.
Aquino-Florenciani also claims that his sentence was
substantively unreasonable because the district court did not
categorically reject any reliance on the sentencing guidelines for

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child pornography. He argues that such a rejection is called for
because these particular guidelines do not rest on the type of
empirical analysis that drives most other guidelines; rather, they
emanate from a congressional fiat that, he says, invariably leads
to substantively unreasonable sentences. See United States v.
Dorvee, 616 F.3d 174, 184–88 (2d Cir. 2010) (discussing the history
of the child pornography guidelines and their practical effects on
sentencing). Aquino-Florenciani also contends that because the
child pornography guidelines lead to the result that all or almost
all defendants in child pornography cases qualify for guideline
ranges near or exceeding the statutory maximum, it constitutes a
per se abuse of discretion for a district court not to reject these
guidelines. While we generally review preserved arguments as to
the substantive reasonableness of a sentence for abuse of
discretion, see United States v. Ruiz-Huertas, 792 F.3d 223, 226
(1st Cir. 2015), Aquino-Florenciani's preserved argument
advocating for a per se rule is actually a claim of legal error,
which triggers de novo review, see United States v. Andújar-Arias,
507 F.3d 734, 738 (1st Cir. 2007), abrogated on other grounds by
United States v. Rodríguez, 527 F.3d 221, 229 (1st Cir. 2008).
Following Kimbrough v. United States, 552 U.S. 85
(2007), we acknowledged that district courts may, in their
discretion, depart or vary downward from a guidelines sentence on
the basis of a policy disagreement with the relevant guideline.

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See United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009). We
likewise noted that this is true even if the guideline -- as here
-- is the "direct reflection of a congressional directive." Id.
We also held that it is procedural error for a district court to
impose a sentence where it "fails to recognize its discretion to
vary from the guideline range based on a categorical policy
disagreement." Id. And we acknowledged that the child pornography
guidelines, which may indeed place all offenders near, at, or even
above the statutory maximum for the offense, may suggest sentences
in individual cases that strike us as "harsher than necessary."
Id. at 97.
Nonetheless, our court has also rejected the argument
that a district court abuses its discretion per se when it does
not reject the child pornography guidelines. See United States v.
Rivera-Hernández, No. 16-2144, 2018 WL 2752578, at *1–2 (1st Cir.
June 8, 2018), and we do so again today. As we said in Stone,
"the district court's broad discretion obviously includes the
power to agree with the guidelines." 575 F.3d at 90. Given the
breadth of the factors set forth in section 3553(a), there is no
reason to presume that a congressional directive cannot provide a
useful starting point in considering "the nature and circumstances
of the offense" and "the need for the sentence imposed . . . to
reflect the seriousness of the offense." 18 U.S.C. § 3553(a)(1),
(2)(A). We also note that no other circuit has adopted the

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approach Aquino-Florenciani urges, and indeed, several have
rejected it. See, e.g., United States v. Fry, 851 F.3d 1329, 1333–
34 (D.C. Cir. 2017); United States v. Henderson, 649 F.3d 955, 964
(9th Cir. 2011). 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. And while certain
applications of the guidelines can point toward punishing a
possessor of child pornography more harshly than one who actually
engages in sexual abuse of children, see Dorvee, 616 F.3d at 184,
that oddity is not present here, for in addition to possessing
child pornography, Aquino-Florenciani produced it by videotaping
himself sexually abusing a minor.
C.
Finally, we dispose of the contention made in Aquino-
Florenciani's sealed brief. Because this issue was presented to
the court in briefing sealed at Aquino-Florenciani's request, we
omit any discussion of the facts prompting his request to seal.
We have nonetheless considered the matter and find it without
merit.
Aquino-Florenciani acknowledges that the argument
contained in the sealed portion of his brief is not one he raised
below. Because the argument relies on disputing a factual

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conclusion reached in the PSR, and because Aquino-Florenciani
acquiesced to this conclusion by failing to object, he arguably
waived the issue, in which case we could forgo review entirely.
See United States v. Rondón-García, 886 F.3d 14, 25 (1st Cir.
2018); see also United States v. Turbines-Leonardo, 468 F.3d 34,
37–38 (1st Cir. 2006) (finding waiver where a defendant "eschew[ed]
a warrantable objection to a conclusion reached in a presentence
report"); but see United States v. Nieves-Borrero, 856 F.3d 5, 7–
8 (1st Cir. 2017) (noting a dispute as to whether waiver or
forfeiture applied and declining to apply waiver because the claim
failed plain error review).
But we need not hold the argument waived to decide this
issue in favor of the government. Even assuming -- as both the
government and Aquino-Florenciani propose -- that plain error
review applies, Aquino-Florenciani's argument falters at the first
two steps of plain error review because he cannot show clear or
obvious error. Mejía-Encarnación, 887 F.3d at 45. To begin with,
his argument on appeal relies on materials not in the record, which
we generally do not consider. See United States v. Chandler, 534
F.3d 45, 51 (1st Cir. 2008). Moreover, even if we were to look
past this deficiency and accept the materials (which we do not
discuss because again, at Aquino-Florenciani's request, they are
filed under seal), they would not be especially useful to Aquino-
Florenciani, as it is not clear that they obviate the conclusions

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of the district court to which he only now objects. For these
reasons, we cannot say that error occurred at all, let alone that
such error was clear or obvious. Consequently, even if his
objection had not been waived, Aquino-Florenciani could not meet
the plain error standard.
III.
The judgment of the district court is affirmed.

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