United States Court of Appeals
For the First Circuit
No. 10-1474
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER J. MADERA-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Selya and Lipez, Circuit Judges.
Alan D. Campbell on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief, Appellate Division, and George A. Massucco-
LaTaif, Assistant United States Attorney, on brief for appellee.
February 25, 2011
SELYA, Circuit Judge. After defendant-appellant Walter
J. Madera-Ortiz pleaded guilty to transferring obscene materials to
a minor, see 18 U.S.C. § 1470, the district court sentenced him to
21 months in prison. The appellant challenges his sentence as
substantively unreasonable. We affirm.
As this sentencing appeal was preceded by a guilty plea,
we draw the background facts from the change-of-plea colloquy, the
transcript of the disposition hearing, and the uncontested portions
of the presentence investigation report (PSI Report). United
States v. Carrasco-de-Jesús, 589 F.3d 22, 24 (1st Cir. 2009);
United States v. Calderón-Pacheco, 564 F.3d 55, 56 (1st Cir. 2009).
On or about January 3, 2009, the appellant entered an
internet chat room and initiated a sexually explicit conversation
with an individual whom he believed to be a 13-year-old girl.
Unbeknownst to the appellant, his correspondent was in fact an
agent of the Department of Homeland Security. During the ensuing
exchange, the appellant transmitted webcam footage that showed him
touching his genitals and masturbating. Within a span of
approximately five months, the appellant initiated a total of seven
instant messaging conversations with his newfound friend. Each of
those contacts featured the transmission of obscene materials.
On June 3, 2009, a federal grand jury sitting in the
District of Puerto Rico returned a seven-count indictment against
the appellant. After initially maintaining his innocence, the
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appellant admitted his guilt as to all seven counts. The district
court accepted the change of plea and ordered the probation
department to prepare a presentence report.
When received, the PSI Report revealed that the appellant
had been, for the most part, a model citizen. He was college-
educated and had retired after more than three decades of well-
regarded employment at the Puerto Rico Municipal Collection Center.
He assiduously supported his non-custodial daughter. He was an
active member of his community and, among other things, conducted
basketball clinics for at-risk youth. He had no history of mental
illness, substance abuse, or criminality.
The district court convened the disposition hearing on
February 25, 2010. After reviewing the PSI Report and hearing from
counsel, the court calculated the guideline sentencing range (GSR).
That calculation started with a base offense level of 10, see USSG
§2G3.1(a); added five levels because the offenses of conviction
involved a victim whom the appellant believed to be a minor, see
id. §2G3.1(b)(1)(C); added two more levels for the use of an
interactive computer service in the commission of the offenses, see
id. §2G3.1(b)(3); and deducted three levels for the appellant's
timely acceptance of responsibility, see id. §3E1.1(a), (b). In
making these adjustments, the district court echoed the
recommendations contained in the PSI Report in all but one respect:
it granted a three-level decrease for acceptance of responsibility
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in lieu of the recommended two-level decrease.1 In conjunction
with a criminal history category of I, these computations produced
a GSR of 15 to 21 months. The court then briefly reviewed some
relevant considerations and concluded that "a sentence at the
higher end of the applicable guideline sentencing range is
sufficient but not greater than necessary to meet statutory
objectives of punishment and of deterrence in this case."
Ultimately, the court sentenced the appellant to a 21-month
incarcerative term, to be followed by three years of supervised
release. This timely appeal ensued.
We have urged "the district courts to follow a
specifically delineated roadmap when sentencing under the now-
advisory federal sentencing guidelines." United States v. Dávila-
González, 595 F.3d 42, 46 (1st Cir. 2010). This roadmap ought to
guide sentencing courts in the mine-run of cases.2 It begins with
establishing the GSR. See United States v. Pelletier, 469 F.3d
194, 203 (1st Cir. 2006). The sentencing court should next
determine the appropriateness of any departures. Id. The court
should then weigh the sentencing factors adumbrated in 18 U.S.C.
§ 3553(a) and any other considerations that may be relevant in a
1
At the request of the appellant, the court ordered that the
additional reduction be reflected in a revised PSI Report.
2
The roadmap is not meant to have universal application. We
regard it as "helpful, but not obligatory." Dávila-González, 595
F.3d at 47.
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particular case.3 Id. These deliberations will inform the court's
assessment of whether to sentence the defendant below, within, or
above the GSR. Id. The purpose of this exercise is to ensure that
the sentence imposed will be the product of the district court's
individualized and fact-intensive decisionmaking. See United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).
Appellate review of such sentences is highly deferential.
We are cognizant that the district court "possesses a number of
institutional advantages, including a superior coign of vantage,
greater familiarity with the individual case, the opportunity to
see and hear the principals and the testimony at first hand, and
the cumulative experience garnered through the sheer number of
district court sentencing proceedings that take place day by day."
3
These factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and . . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records . . . .
18 U.S.C. § 3553(a).
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Id. (citing Gall v. United States, 552 U.S. 38, 50-52 (2007)).
Accordingly, we review sentencing decisions for abuse of
discretion. Id.
Ordinarily, this review is bifurcated. First, we
evaluate the procedural soundness of the sentence; second, we assay
its substantive reasonableness. See id. Here, however, the
appellant concedes the correctness of the district court's
guideline calculations and lodges no claim of procedural error.
Consequently, we narrow the lens of our inquiry to focus on
substantive reasonableness.
In assessing the substantive reasonableness of a
sentence, it is significant that the sentence falls within the GSR.
"[A] defendant who attempts to brand a within-the-range sentence as
unreasonable must carry a heavy burden." Pelletier, 469 F.3d at
204. Although such a sentence is not presumed to be reasonable, it
requires less explanation than one that falls outside the GSR.
United States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir.
2006). To undermine the substantive reasonableness of a within-
the-range sentence, a defendant must "adduce fairly powerful
mitigating reasons and persuade us that the district judge was
unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be 'reasonable.'" United
States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006). In
the last analysis, "it is not a basis for reversal that we, if
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sitting as a court of first instance, would have sentenced the
defendant differently." Martin, 520 F.3d at 92.
Before us, the appellant argues that his sentence is
substantively unreasonable because the district court (i) "treated
the GSR as more of a finish line than as a starting point," (ii)
gave an inadequate explanation, (iii) did not fully consider
mitigating circumstances, and (iv) left no wiggle room to sentence
a defendant convicted of the same offense on the basis of more
heinous conduct.4 We examine these plaints sequentially.
We need not linger long over the appellant's first
remonstrance. There is simply nothing in the record that suggests
that the district court either treated the GSR as a set of shackles
or felt itself constrained to sentence within that range regardless
of what the record revealed. In fact, at the disposition hearing
the court described its guideline calculations as "advisory." We
will not presume based solely on the suspicions of a disappointed
defendant that a sentencing court has turned a blind eye to settled
law. See, e.g., Dávila-González, 595 F.3d at 48 (finding no error
where "[r]ead as a whole, the sentencing transcript makes manifest
not only the court's awareness that the GSR was merely an initial
benchmark, but also its conclusion that the circumstances of the
4
In his brief, the appellant also laments the "onerous"
conditions of his supervised release. But the appellant has not
developed any argument directed to this point and, thus, we treat
it as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
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case made it appropriate to hew to that benchmark in fashioning the
appellant's sentence"); Pelletier, 469 F.3d at 204 (finding no
error where "[l]ooking at the disposition hearing as a whole, it is
perfectly clear that the district court appreciated the advisory
nature of the guidelines and acted accordingly").
We turn next to the district court's explanation for the
sentence. We have confirmed that a sentencing court's explanation
need not be "precise to the point of pedantry." United States v.
Fernández-Cabrera, 625 F.3d 48, 53 (1st Cir. 2010). "The level of
detail required varies depending on the circumstances." Id. at 53-
54.
In the case at hand, the court's explanation, though
brief, contained a clear, cogent, and coherent rationale for its
decision: the court found that "[t]he offence committed by [the
appellant] . . . is a very serious and a dangerous one," which
"occurred repeatedly against the same person believed by [the
appellant] to be a minor." It was, in the court's view, an offense
that "can influence the mind of a very young person in an injurious
manner." Those considerations, the court thought, warranted a 21-
month sentence.
To be sure, the sentencing court's explanation for the
sentence is terse. But "brevity is not to be confused with
inattention." Turbides-Leonardo, 468 F.3d at 42. The explanation
must be read in light of the record as a whole. Dávila-González,
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595 F.3d at 48-49; Martin, 520 F.3d at 92-93. As long as we can
discern "a plausible sentencing rationale" which reaches "a
defensible result," the sentence will be upheld. See Martin, 520
F.3d at 96; see also United States v. Jiménez-Beltre, 440 F.3d 514,
519 (1st Cir. 2006) (en banc). Applying these criteria, we deem
the sentencing court's explanation sufficient. See, e.g.,
Carrasco-de-Jesús, 589 F.3d at 29-30; Pelletier, 469 F.3d at 204.
This brings us to the appellant's third assignment of
error. The record makes manifest that the district court examined
the relevant sentencing factors. Indeed, the court, in pronouncing
sentence, expressly stated that it had considered all the section
3553(a) factors. This is an important datum: on appeal, "the fact
that the court stated that it had considered all the section
3553(a) factors is entitled to some weight." Dávila-González, 595
F.3d at 49 (citing United States v. Morales-Machuca, 546 F.3d 13,
26 (1st Cir. 2008)).
Nor was this all. Among other things, the court
specifically noted many of the appellant's virtues (e.g., that he
had no prior criminal record, that he had no history of substance
abuse, that he had earned a college degree, and that he had retired
after more than three decades of honorable service as a public
employee). Stripped of rhetorical flourishes, the appellant's real
complaint seems to be not that the court failed to mull the complex
of factors but, rather, that the court weighed those factors in a
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manner that disfavored the appellant. To be sure, the sentence
upon which the court settled was at the top of the GSR.
Nevertheless, a defendant does not ensure himself a reduced
sentence simply by identifying potentially mitigating factors.
Carrasco-de-Jesús, 589 F.3d at 29. The sentencing court's task is
to sift the available information and balance the pertinent factors
(both mitigating and aggravating). That the court below chose not
to give greater weight to the appellant's admirable conduct in the
past, his efforts at rehabilitation, and the fact that he was
caught in a sting operation represented a judgment call. Within
wide margins, not approached here, such judgment calls are for the
sentencing court, not for this court. See, e.g., United States v.
Stone, 575 F.3d 83, 97 (1st Cir. 2009).
Finally, the district court's decision to impose a top-
of-the-range sentence will not, as the appellant asseverates,
foreclose appropriate punishment for defendants who commit the same
offenses by means of more heinous conduct. The precedent upon
which the appellant relies, United States v. Franquiz-Ortiz, 607
F.3d 280 (1st Cir. 2010) (per curiam), is readily distinguishable.
There, we remanded for resentencing because "by imposing the
statutory maximum sentence, the [district] court left no room for
harsher sentences for [defendants] with higher criminal history
categories and more serious violations." Id. at 282. Here, in
contrast, the appellant's sentence falls far short of the 10-year
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statutory maximum for the offense of conviction. See 18 U.S.C.
§ 1470. The guidelines are no longer mandatory, see United States
v. Booker, 543 U.S. 220, 245 (2005), and upward variances are
available for aggravated cases.
We need go no further. The sentence imposed represents
a defensible result supported by a plausible sentencing rationale.
Consequently, we leave it undisturbed.
Affirmed.
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