United States v. Ruiz-Huertas

United States Court of Appeals
For the First Circuit

No. 14-1038

UNITED STATES OF AMERICA,

Appellee,

v.

ANDRÉS RUIZ-HUERTAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta, Selya and Barron,
Circuit Judges.

Luis A. Guzmán Dupont on brief for appellant.
Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Mathews II, Assistant United States Attorney,
on brief for appellee.
July 7, 2015
 SELYA, Circuit Judge. In this sentencing appeal,

defendant-appellant Andrés Ruiz-Huertas complains that his 50-year

sentence is both procedurally and substantively unreasonable.

After careful consideration, we affirm the challenged sentence.

This appeal arises out of an indictment returned by a

federal grand jury sitting in the District of Puerto Rico, which

charged the defendant, inter alia, with five counts of unlawful

production of child pornography.1 See 18 U.S.C. § 2251(a). Each

count involved a different victim.

Before trial, the defendant entered into a non-binding

plea agreement with the government (the Agreement). See Fed. R.

Crim. P. 11(c)(1)(A)-(B). The Agreement obligated the government

to recommend an aggregate term of immurement of 35 years,

regardless of what the court determined the defendant's criminal

history category (CHC) to be. It left the defendant free to argue

for concurrent sentences of 15 years (the statutory mandatory

minimum sentence on each count, see 18 U.S.C. § 2251(e)). The

district court accepted the plea, and the probation department

compiled a presentence investigation report (PSI Report). When

received, the PSI Report adumbrated a series of guideline

1 The indictment included five other counts, detailing
additional crimes. These charges were eventually dismissed, and
we do not discuss them further.
calculations, culminating in a total offense level of 43, a CHC of

I, and a guideline sentence of life imprisonment.

At the disposition hearing, the government stuck to its

bargain and recommended an aggregate of 35 years' imprisonment.

The district court then heard from both defense counsel and the

defendant. Without objection, the court adopted the guideline

calculations recommended in the PSI Report. The court proceeded

to acknowledge the defendant's age (60), strong family ties, health

problems, and unblemished criminal history. After stating that it

had considered the factors enumerated in 18 U.S.C. § 3553(a), the

Agreement, defense counsel's statements, and the defendant's

allocution, the court declared that it would impose an aggregate

50-year term of imprisonment. To accomplish this goal, the court

sentenced the defendant to concurrent 30-year terms on three of

the counts of conviction and concurrent 20-year terms on the other

two counts, to be served consecutively to the three concurrent 30-

year sentences. This timely appeal ensued.2

In sentencing appeals, appellate review is bifurcated.

See United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).

2 Although the Agreement included a waiver-of-appeal
provision, that provision took effect only if the defendant was
sentenced according to the Agreement's "terms, conditions and
recommendations." Because the court did not adhere to these
recommendations, the waiver-of-appeal provision does not pretermit
this appeal. See United States v. Fernández-Cabrera, 625 F.3d 48,
51 (1st Cir. 2010).
"[W]e first determine whether the sentence imposed is procedurally

reasonable and then determine whether it is substantively

reasonable." Id.; see Gall v. United States, 552 U.S. 38, 51

(2007). When mulling the procedural reasonableness of a sentence,

we afford de novo review to the sentencing court's interpretation

and application of the sentencing guidelines, assay the court's

factfinding for clear error, and evaluate its judgment calls for

abuse of discretion. See United States v. Flores-Machicote, 706

F.3d 16, 20 (1st Cir. 2013). With respect to the substantive

reasonableness of a sentence, we proceed under the abuse of

discretion rubric, taking account of the totality of the

circumstances. See Gall, 552 U.S. at 51; United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008).

These standards of review may be altered where a party

fails to preserve claims of error in the court below. In that

event, review is for plain error. See United States v. Duarte,

246 F.3d 56, 60 (1st Cir. 2001). To prevail under this daunting

standard, the defendant must establish "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected

[his] substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings." Id.

With these benchmarks in place, we turn to the

defendant's specific claims of error. We start with the
defendant's contention that the sentencing court failed to

consider all the factors limned in 18 U.S.C. § 3553(a), especially

the defendant's age, family ties, poor health, and lack of criminal

record. Since this contention was not advanced below, review is

for plain error.

We have held that even though a district court is obliged

to "consider all relevant section 3553(a) factors, it need not do

so mechanically." Clogston, 662 F.3d at 592 (internal quotation

marks omitted). That is, a district 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 F.3d 194, 205 (1st Cir. 2006). When — as in this case — the

district court explicitly states that it has considered the section

3553(a) factors, "[s]uch a statement is entitled to some weight."

Clogston, 662 F.3d at 592 (internal quotation marks omitted).

These authorities are controlling here. Given that the

potentially mitigating factors emphasized by the defendant were

vehemently argued by his counsel and specifically acknowledged by

the court immediately before it imposed the sentence, we discern

no error, plain or otherwise, in this regard. Here, as in Flores-

Machicote, 706 F.3d at 23, the defendant's real complaint is not

that the court failed to consider the section 3553(a) factors, but

that the court did not assign the weight to certain factors that

the defendant thought appropriate.
 The defendant's next claim of error suggests that the

court disregarded its statutory duty to explicate its sentencing

rationale. See 18 U.S.C. § 3553(c). Because this plaint was not

voiced below, review is for plain error.

In pertinent part, 18 U.S.C. § 3553(c) provides that

"[t]he court, at the time of sentencing, shall state in open court

the reasons for its imposition of the particular sentence." The

fact that a sentence is consistent with the guideline sentencing

range (properly calculated) correlates to some extent with the

"requisite degree of explanation: a within-the-range sentence

usually demands a less detailed explanation than a variant

sentence." United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st

Cir. 2013).

In the case at hand, the guideline sentence was life

imprisonment. The court imposed an aggregate incarcerative term

of 50 years. In crafting what was effectively a life sentence for

the 60-year-old defendant, the court imposed consecutive sentences

to the extent necessary to achieve what it regarded as an

appropriate sentencing outcome. See USSG §5G1.2, comment. (n.1).

Thus, the requirement for an explanation was less stringent than

if the court had imposed a variant sentence.3

3The defendant also claims that the court violated 18 U.S.C.
§ 3553(c)(2). That provision is inapposite because the sentence
here is a guideline sentence, not a variant sentence.
 To be sure, the district court provided virtually no

explanation for its choice of the particular sentence. It is

settled law, though, that the failure adequately to explain a

sentence, in and of itself, is not plain error. See United States

v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). More is

needed: the defendant must show "a reasonable probability that,

but for the error, the district court would have imposed a

different, more favorable sentence." Id. (internal quotation mark

omitted). No such showing has been proffered here.

Where an explanation for a sentence is lacking, "a

court's reasoning can often be inferred by comparing what was

argued by the parties or contained in the [PSI] report with what

the judge did." United States v. Jiménez-Beltre, 440 F.3d 514,

519 (1st Cir. 2006) (en banc). In this instance, the PSI report

(to which neither side objected) provides a comprehensive view of

the tawdry facts of this case. The defendant engaged in sexually

explicit conduct with girls from nine to sixteen years of age.

One of those victims suffered from a mental disability. The

encounters involved bathing, touching, oral sex, and vaginal

penetration — and the defendant surreptitiously video-recorded all

of them. These offenses resulted in mental health issues on the

part of some victims, and one victim contracted a sexually

transmitted disease. To make a bad situation worse, the defendant

complained during his allocution that the victims "pushed [him] to
it" and "put it on a silver platter to [him]." Considering the

abhorrent nature of the defendant's conduct and his palpable lack

of contrition, it is easy to infer the district court's sentencing

rationale. On plain error review, no more is exigible. See

Medina-Villegas, 700 F.3d at 583-84.

Let us be perfectly clear. Transparency is an important

virtue in the sentencing realm, and we do not lightly countenance

a district court's failure to provide a coherent explanation of

its sentencing rationale as required by 18 U.S.C. § 3553(c). By

the same token, however, we do not lightly countenance a

defendant's failure to make a timely objection and bring such an

oversight to the attention of the district court. A failure to

object limits appellate review to plain error and, under this

daunting standard, the record affords no basis for vacating the

sentence imposed. See id.

The defendant's last claim of procedural error, perhaps

subsumed in his "no explanation" claim, is that the district court

erred by failing to articulate its reasons for deviating from the

range of sentencing options discussed in the Agreement. This claim

lacks force: while a district court may have a duty adequately to

explain its choice of a particular sentence, it has no "corollary

duty to explain why it eschewed other suggested sentences." United

States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014). Thus,
the court below had no obligation to explain its rejection of the

sentencing options advocated by the parties.

This brings us to the defendant's challenge to the

substantive reasonableness of his sentence. He argues that his

sentence is substantively unreasonable because it is greater than

necessary to comply with the purposes of sentencing set forth in

18 U.S.C. § 3553(a)(2).

The applicable standard of review is somewhat blurred.

Of the seven circuits that have examined the issue, six have found

that an objection in the district court is not required to preserve

a claim that the duration of a sentence is substantively

unreasonable. See United States v. Autery, 555 F.3d 864, 871 (9th

Cir. 2009); United States v. Vonner, 516 F.3d 382, 389 (6th Cir.

2008) (en banc); United States v. Wiley, 509 F.3d 474, 476-77 (8th

Cir. 2007); United States v. Bras, 483 F.3d 103, 113 (D.C. Cir.

2007); United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th

Cir. 2006); United States v. Castro-Juarez, 425 F.3d 430, 433-34

(7th Cir. 2005). But see United States v. Peltier, 505 F.3d 389,

391-92 (5th Cir. 2007). This court, however, has held, albeit

without analysis, that a failure to interpose an objection in the

district court to the substantive reasonableness of a sentence

begets plain error review.4

4The more recent of the two First Circuit cases, United
States v. Castro-Caicedo, 775 F.3d 93, 103 (1st Cir. 2014), cert.
 We need not resolve this apparent anomaly today.

Assuming, favorably to the defendant, that the abuse of discretion

standard applies, the outcome would be the same. Accordingly, we

proceed under that rubric, taking into account the totality of the

circumstances. See Gall, 552 U.S. at 51; Martin, 520 F.3d at 92.

A sentence is substantively reasonable so long as it

rests on a "plausible sentencing rationale" and embodies a

"defensible result." Martin, 520 F.3d at 96. A challenge directed

at substantive reasonableness is usually a heavy lift, and reversal

is "particularly unlikely when . . . the sentence imposed fits

within the compass of a properly calculated [guideline sentencing

range]." Vega-Salgado, 769 F.3d at 105.

This is such a case. The aggregate sentence imposed is

consistent with the guideline sentence of life imprisonment.

Moreover, the sentencing court was careful to structure the overall

sentence to fit within the statutory maximum of 30 years per count.

See 18 U.S.C. § 2251(e). "In most cases, there is not a single

appropriate sentence but, rather, a universe of reasonable

sentences." United States v. Rivera-González, 776 F.3d 45, 52

(1st Cir. 2015). Giving due regard to the especially heinous

denied, 135 S. Ct. 1884 (2015), merely cites to the earlier case,
United States v. Tavares, 705 F.3d 4, 33 (1st Cir. 2013). In
Tavares, the sole authority cited for the proposition is United
States v. Matos-Quiñones, 456 F.3d 14, 20-21 (1st Cir. 2006) ─ a
precedent that has nothing to do with a claim that a sentence is
substantively unreasonable.
nature of the offenses of conviction, the victims' tender ages,

and the defendant's begrudging expression of remorse, it is evident

that the aggregate sentence imposed here falls within the wide

universe of reasonable sentencing outcomes.

We need go no further. For the reasons elucidated above,

the sentence is

Affirmed.