United States of America v. Luis D. Rivera-Hernández

United States Court of Appeals
For the First Circuit
No. 16-2144
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS D. RIVERA-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
German A. Rieckehoff on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Thomas
F. Klumper, Assistant United States Attorney, Acting Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.
June 8, 2018

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BOUDIN, Circuit Judge. Luis Rivera-Hernández ("Rivera")
was charged with transporting child pornography, 18 U.S.C.
§ 2252A(a)(1), and possession of such pornography, 18 U.S.C.
§ 2252A(a)(5)(B). Based on a Rule 11(c) agreement with the
prosecutor, Fed. R. Crim. P. 11(c)(1)(A)-(B), Rivera pled guilty
to the first count while the prosecutor abandoned the second. The
agreement contained a total offense level of 27, but did not
contain a stipulation as to Rivera's criminal history category
("CHC"). Accordingly, the agreement contained three contemplated
sentencing ranges: 70-87 months (CHC I), 78-97 months (CHC II), or
87-108 months (CHC III). The government agreed to recommend a
sentence at the lower end of the applicable range at sentencing,
which it did when it asked the district court to impose a 70-month
sentence.
After the Probation Office's pre-sentence report ("PSR")
urged adjustments not contained in the agreement, the district
judge, in no way bound by the parties' agreement, United States v.
Reyes-Santiago, 804 F.3d 453, 466 (1st Cir. 2015); United States
v. Eirby, 262 F.3d 31, 38 n.3 (1st Cir. 2001), calculated the
guideline sentence to incorporate the adjustments which are not
contested here; the new guideline range was 121-151 months. The
district court then sentenced Rivera to 121 months in prison, the
bottom of the range but higher than any sentence supported by both
parties.

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Rivera now deploys a wide-ranging attack on his
sentence, including a procedural challenge asserting that the
district court did not consider certain arguments he presented in
his sentencing memorandum, and a direct assault on the guideline
invoked by the district court, U.S.S.G. § 2G2.2, which provides
the base offense level and various sentencing enhancements in child
pornography cases. We reject Rivera's procedural argument because
even if the district court did not explicate on the record its
consideration of all the arguments pressed in his sentencing
memorandum, these arguments were unmistakably considered and
rejected elsewhere in the court's reasoning. See United States v.
Fisher, 494 F.3d 5, 12 (1st Cir. 2007).
As for Rivera's attack on the guideline itself, Rivera's
brief argues that both he and the prosecutor to the end urged a
70-month sentence, that U.S.S.G. § 2G2.2 was developed by the
Sentencing Commission in response to congressional directives,
that most district judges regard the sentences under this guideline
as far too harsh, and that several of our sister circuits including
the Second, United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010),
and the Third, United States v. Grober, 624 F.3d 592 (3d Cir.
2010), have comprehensively critiqued this guideline. Rivera
further asserts that his total offense level of 32, recommended in
the PSR and ultimately adopted by the district court, is comparable

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to the base offense level for second degree murder and voluntary
manslaughter. See U.S.S.G. §§ 2A1.2(a), 2A1.3(a).
The government has chosen not to reply to all of these
pointed attacks, presumably believing that it does not have to do
so. The district court did not choose to vary or depart from the
guideline range it adopted, so its authority to do so is not in
issue here. Nor, given precedent shortly to be cited, is a naked
attack on Congress' guideline within the purview of this panel, as
it might be were an en banc court considering the matter. And, if
the government had to defend the very severe sentences Congress
envisioned, it could attempt to paint a somewhat darker picture--
focusing on the coercion of children that lies behind some child
pornography.
Settled circuit precedent exists and controls the
actions of this panel, which is not an en banc court: the First
Circuit has cited this particular guideline and, while questioning
its harshness in the ordinary case, has upheld a district court's
discretion to follow it (or not). E.g., United States v. Stone,
575 F.3d 83, 96 (1st Cir. 2009); see also United States v. Cameron,
835 F.3d 46, 50 (1st Cir. 2016).
The district court judgment is affirmed.

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