United States v. Gall

United States Court of Appeals
For the First Circuit

No. 14-1948

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD GALL,

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 and Barron, Circuit Judges,
and McAuliffe,* District Judge.

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

July 15, 2016

* Of the District of New Hampshire, sitting by designation.
 BARRON, Circuit Judge. Ronald Gall pleaded guilty to

one count of possessing child pornography, in violation of 18

U.S.C. § 2252(a)(4)(B). For that offense, the District Court

sentenced him to 135 months in prison and 15 years of supervised

release, subject to various conditions. Gall challenges his

conviction, his prison sentence, and one of his conditions of

supervised relief. We affirm the conviction and prison sentence,

but vacate the challenged supervised release condition. We

therefore remand for partial resentencing.

I.

In October 2013, officers of the Child Exploitation

Investigations Group in San Juan, Puerto Rico, received

information that six images of child pornography had been uploaded

to the internet from two email addresses that Gall used.1 Based

on that information, the officers obtained a search warrant for

Gall's residence.

When the officers executed the warrant, they found that

Gall possessed over 2,000 images and videos of child pornography.

The pornographic material included images of prepubescent

children.

1Because Gall pleaded guilty, we take the facts from the
uncontested portions of the change-of-plea colloquy, presentence
report, and sentencing hearing. See United States v. Torres-
Landrúa, 783 F.3d 58, 61 (1st Cir. 2015).

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 Gall was charged with one count of possessing child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and eight

counts of transporting child pornography, in violation of 18

U.S.C. § 2252(a)(1). With respect to the possession count, the

indictment alleged that the child pornography Gall possessed

included depictions of "prepubescent children engaging in sexually

explicit conduct."

A person convicted of possessing child pornography is

generally subject to a ten-year maximum sentence. 18 U.S.C.

§ 2252(b)(2). The maximum sentence is higher, however, "if any

visual depiction involved in the offense involved a prepubescent

minor or a minor who had not attained 12 years of age." Id. In

that case, the maximum term of imprisonment is twenty years. Id.

Gall chose not to go to trial. Instead, he reached a

plea agreement with the government. Under the agreement, he would

plead guilty to "COUNT ONE of the indictment" -- the possession

count -- and the government would drop the eight counts of

transporting child pornography.

In describing the possession count, Gall's plea

agreement did not expressly reference the fact, included in the

indictment, that the child pornography that Gall possessed

included images of prepubescent children. Nor was there any

express reference to images of prepubescent children in the section

of the plea agreement that recounted the factual basis for Gall's

- 3 -
plea.2 Moreover, the agreement stated that the "maximum penalt[y]"

for the count to which Gall would plead guilty was ten years in

prison, which is the maximum prison sentence for possession of

child pornography that does not depict prepubescent children. Id.

At Gall's change-of-plea hearing, the District Court

advised Gall that he was pleading guilty to possession of child

pornography and that the maximum available penalty was ten years'

imprisonment. Gall agreed to the factual basis for the

plea -- which, like the plea agreement, included no express

statement that Gall possessed images of prepubescent children --

and the District Court accepted Gall's guilty plea.

The probation office then prepared the presentence

report (PSR), and the parties appeared for sentencing. Before

sentencing began, however, Gall's counsel notified the District

Court that "there is an issue that I just found out, that I only

noticed." Defense counsel continued, "[w]hen this Defendant pled

guilty, he pled guilty to possession of child porn." Defense

counsel then asked to go "[o]ff the record, if I can," and a

sidebar discussion ensued.

2 The only express reference to prepubescent images in the
plea agreement was in the section of the agreement that calculated
Gall's offense level under the United States Sentencing
Guidelines. Those calculations included a two-level enhancement
on the ground that "[t]he material involved a pre-pubescent minor."

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 Following the sidebar, the District Court then stated on

the record:

Based on what we discussed at sidebar off the
record, it appears that at the change of plea
hearing, Mr. Gall was not advised correctly as
to the minimum and maximum terms of
imprisonment to which he may be subject. So,
therefore, we are going to have to start all
over again.

So, [defense counsel], you said we could have
another change of plea hearing sometime next
week.

The District Court also stated that it "underst[ood]" that "[t]he

terms of the plea . . . will be the same."

Defense counsel agreed that "the terms of the plea

agreement [would be] exactly the same" and that "[i]t's basically

changing a sentence." And the District Court at that point added,

"[b]ut certain matters have to be explained to Mr. Gall during the

change of plea hearing, and we will have to do that."

When the parties reconvened for a second change-of-plea

hearing, the government noted "for the purposes of the record"

that there had been "an error" by the government "in the drafting"

of the plea agreement, "specifically the maximum penalty for Count

One in this case." The government stated that although the plea

agreement "originally said [the maximum sentence] was 10

years, . . . it's actually 20 years, given the way that it's

charged," that is, "[b]ecause this involves [images of]

prepubescent minors." The government noted that the parties had

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amended the plea agreement to state that the maximum sentence for

Gall's offense was twenty years, not ten.

The District Court asked defense counsel whether she was

"in agreement with what [the prosecutor] has indicated." She

answered that she was. Gall also answered affirmatively when asked

whether he "underst[ood] that because the indictment charges

pornography involving prepubescent minors, the term of

imprisonment is not more than 20 years rather than [not more than]

10 years." In addition, Gall agreed that he was "willing to plead

guilty with these amendments to the plea agreement." Finally,

Gall and defense counsel both agreed that it was not "necessary to

go through the plea agreement colloquy" and that the District Court

could go "straight to sentencing."

At sentencing, the District Court calculated Gall's

sentencing range under the United States Sentencing Guidelines as

135 to 168 months -- the same calculation contained in the PSR, to

which no party had objected. The District Court sentenced Gall to

135 months in prison and 15 years of supervised release. Gall now

appeals both the conviction and the sentence.3

3 The parties agree that the waiver-of-appeal provision in
Gall's plea agreement does not bar this appeal, and we proceed on
that understanding as well.

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 II.

In challenging his conviction, Gall first argues that

the District Court violated the Double Jeopardy Clause of the

United States Constitution when it "effectively vacat[ed]" his

first guilty plea and permitted the prosecution to continue via

the second change-of-plea hearing. In making that argument, Gall

contends that this first plea was to possession of child

pornography and not to possession of prepubescent child

pornography. From that premise, he then argues that the Double

Jeopardy Clause barred the District Court from vacating that first

plea and accepting the second. He thus contends that we must

vacate the second plea and remand so that he may be resentenced in

accordance with his first plea.4

The government responds that Gall mischaracterizes what

happened below. The government insists that Gall's initial plea

was to possessing prepubescent child pornography. The government

4 Gall did not argue to us in his opening brief or reply brief
that his plea to possession of prepubescent child pornography
lacked an adequate factual basis, notwithstanding that the
unobjected-to PSR reports that the images he possessed included
those of prepubescent children. We therefore do not address that
argument. See, e.g., Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86
(1st Cir. 1990); cf. United States v. Delgado-Hernández, 420 F.3d
16, 32 (1st Cir. 2005) ("Because the record as a whole contains a
'rational basis in facts' to support [the defendant]'s guilty plea,
[the defendant] fails to establish prejudice resulting from the
court's inability to evaluate the factual basis proffered by the
government during the proceedings below." (quoting United States
v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir. 2000))).

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further contends that, by holding a second change-of-plea hearing,

the District Court merely ensured that Gall was properly

advised -- as he had not been at the initial change-of-plea

hearing -- of the maximum prison term for the offense to which he

was pleading.

But even assuming that Gall's characterization of what

happened below is correct, his Double Jeopardy Clause challenge

fails due to our decision in United States v. Santiago Soto, 825

F.2d 616 (1st Cir. 1987). In that case, we explained that "[t]he

mere acceptance of a guilty plea does not carry the same

expectation of finality and tranquility that comes with a jury's

verdict or with an entry of judgment and sentence." Id. at 620.

We explained that when "the judge [had] initially accepted the

[defendant's] guilty plea [to a lesser-included offense] but then

rejected it within the same proceeding," "without having imposed

sentence and entered judgment," "[the] defendant was not placed in

jeopardy in any meaningful sense." Id. For that reason, we

concluded that "continuing [the] prosecution" of the defendant on

the greater offense did not violate the Double Jeopardy Clause.

Id.

Because Gall's case is not distinguishable from Santiago

Soto, he has not shown any error, let alone the "clear or obvious"

error that he must under the plain error standard of review that

he concedes applies due to his failure to raise this challenge

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below. United States v. Figuereo, 404 F.3d 537, 540 (1st Cir.

2005) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001)). Accordingly, the Double Jeopardy Clause did not bar the

government from "continuing its prosecution" of Gall on the greater

offense, even if we assume, favorably to Gall, that his initial

plea was to a lesser-included one. Santiago Soto, 825 F.2d at

620.5

III.

Gall next challenges his conviction on the ground that

the Federal Rules of Criminal Procedure barred the District Court

from "vacat[ing]" the first plea and accepting the second because

the District Court took such actions after the PSR had issued.

This challenge is also subject to review for plain error as it is

also raised for the first time on appeal, as Gall acknowledges.

See Figuereo, 404 F.3d at 540. But even if we once again

assume -- favorably to Gall -- that the initial plea was only to

possession of child pornography and not to possession of child

pornography depicting prepubescent children, this challenge still

fails.

5
Gall's reliance on United States v. Pena, 742 F.3d 508 (1st
Cir. 2014), is unavailing. In that case, we refused to permit the
government to attempt to prove an offense element that would raise
the mandatory minimum after the defendant had already been
sentenced on a guilty plea explicitly disclaiming the existence of
that element.

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 As Gall points out, we have interpreted Federal Rules of

Criminal Procedure 11 and 32 to prohibit a trial court from

accepting a bargained-for guilty plea, viewing the defendant's

PSR, and then rejecting, without the defendant's consent, the

previously-accepted bargained-for plea on the basis of the facts

contained in the PSR. See United States v. Cruz, 709 F.2d 111,

115 (1st Cir. 1983), abrogation on other grounds recognized by

Santiago Soto, 825 F.2d at 619. And we also have held that this

bar applies even if the District Court does not rely on facts

contained in the PSR, so long as the District Court vacates the

guilty plea after the PSR is issued. See United States v.

Kurkculer, 918 F.2d 295, 301-02 (1st Cir. 1990) (citing Cruz, 709

F.2d at 115).

But neither Cruz nor Kurkculer holds that a defendant

may not consent to a district court vacating a plea after the PSR

has issued. In fact, both cases indicate the opposite. See id.

at 301 ("The [district] court may" "defer its decision [to reject

or accept a guilty plea] until it has had the opportunity to review

the presentence report" "only if it has the defendant's permission

to [do so]." (citing Fed. R. Crim. P. 32)); Cruz, 709 F.2d at 115

("Under Rules 11 and 32, the [district] court could not use

[information it obtained from the PSR] to accept or reject the

plea unless it had defendant's consent.").

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 These cases are thus of no help to Gall. The transcript

suggests -- and Gall does not dispute in his opening brief -- that

he did consent to the District Court's taking his second plea,

even though the PSR by then had been issued. We therefore cannot

say that the District Court committed clear or obvious error under

either Rule 11 or Rule 32 in proceeding as it did. As a result,

we cannot say that Gall has met his burden under the plain error

standard of review.

IV.

Gall's final challenge to his conviction asserts that

his lawyer provided ineffective assistance in violation of his

Sixth Amendment rights. See Strickland v. Washington, 466 U.S.

668, 686 (1984). In Gall's view, the Sixth Amendment required his

counsel to challenge the District Court's decision to (1) hold a

second plea colloquy at which it advised Gall that his conviction

was to possessing prepubescent child pornography and carried a

maximum sentence of twenty years, not ten; (2) accept Gall's guilty

plea to that offense; and (3) sentence Gall, consistent with that

guilty plea, to more than ten years in prison.

Specifically, Gall contends that his counsel was obliged

to argue that (1) Gall had entered into an agreement with the

government whereby he would plead guilty to possession of child

pornography (which carries a maximum sentence of ten years), rather

than possession of prepubescent child pornography (which carries

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a maximum sentence of twenty years); (2) Gall's initial guilty

plea was consistent with that agreement, as it was a plea to

possession of child pornography with a maximum sentence of ten

years; and (3) the District Court was thus not permitted to reject

the initially bargained-for plea. Gall further contends that he

was prejudiced by counsel's failure to make this argument because,

had that argument been successful, the longest prison term to which

he could have been sentenced would have been ten years -- fifteen

months shorter than the 135 months to which he was sentenced.

We usually decline to review ineffective assistance of

counsel claims that are raised on direct appeal because such claims

are often highly fact-dependent. Our practice is thus to leave

them for initial consideration by the district courts in petitions

that may be brought pursuant to 28 U.S.C. § 2255. See United

States v. Vázquez-Larrauri, 778 F.3d 276, 293 (1st Cir. 2015).

And although we have made exceptions "where the critical facts are

not genuinely in dispute and the record is sufficiently developed

to allow reasoned consideration of an ineffective assistance

claim" on direct appeal, id. at 293-94 (quoting United States v.

Reyes, 352 F.3d 511, 517 (1st Cir. 2003)), this case is not of

that ilk.

To find merit in Gall's Strickland claim, we would have

to find merit in the argument Gall faults his counsel for failing

to make. See United States v. Porter, 924 F.2d 395, 397 (1st Cir.

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1991) (holding that counsel, to render effective assistance, "need

not make meritless arguments"). But that determination depends,

at least in part, on whether Gall's plea agreement provided that

Gall would plead guilty to possessing child pornography and not

prepubescent child pornography. As we shall explain, however, the

record on appeal is simply too undeveloped to permit us to make

this critical determination.

The plea agreement is not clear on its face. On the one

hand, it states that Gall will plead guilty to "COUNT ONE" in the

indictment, which charges possession of prepubescent child

pornography, and includes a stipulation to an enhancement of two

points to Gall's offense level under the Sentencing Guidelines for

"material involv[ing] a pre-pubescent minor." On the other hand,

the agreement states that the maximum sentence Gall will face in

consequence of pleading guilty to "COUNT ONE" is only ten years,

which is the maximum prison sentence that applies to possessing

child pornography as opposed to prepubescent child pornography,

see 18 U.S.C. § 2252(b)(2).

Our precedent makes clear that such a facial ambiguity

in a plea agreement does not in and of itself require us to construe

the plea agreement in favor of the defendant. Rather, when the

words of a plea agreement are unclear, extrinsic evidence may be

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considered to clarify the parties' understanding.6 Thus, Gall's

ineffective assistance claim ultimately hinges on what the

extrinsic evidence might show about the parties' understanding of

the agreement.

Perhaps that evidence supports the government's

contention that the parties agreed that Gall would plead guilty to

possession of prepubescent child pornography. Perhaps that

evidence supports Gall's contention that the parties understood

that Gall would plead only to possession of child pornography.

Perhaps that evidence shows only that the parties' understanding

remains unclear and thus that the agreement must be construed as

6 See United States v. Marchena-Silvestre, 802 F.3d 196, 202
(1st Cir. 2015) ("[W]e construe the terms and conditions in plea
agreements in accordance with traditional principles of contract
law, looking outside the document only as necessary to provide
illuminating context or resolve ambiguities in the writing."
(citations omitted)); United States v. Alegria, 192 F.3d 179, 183
(1st Cir. 1999) ("If a plea agreement unambiguously resolves an
issue, that usually ends the judicial inquiry. If, however, a
plea agreement lacks clarity or is manifestly incomplete, the need
to disambiguate may justify resort to supplementary evidence or
other interpretive aids." (citation omitted)); United States v.
Giorgi, 840 F.2d 1022, 1028-29 (1st Cir. 1988) (finding that
"although the [plea] agreement did contain a facial ambiguity, the
construction of that agreement by the court below [in favor of the
government] was consistent with the reasonable expectations of the
parties," and citing United States v. Fields, 766 F.2d 1161 (7th
Cir. 1985), which defined reasonable expectations to include the
parties' understanding of the terms of an agreement, see id. at
1169-70); see also United States v. Gutierrez-Rentas, 2 F. App'x
30, 32-34 (1st Cir. 2001) (per curiam) (construing an ambiguity in
a plea agreement in favor of the government after considering what
the parties "understood" the agreement to entail, as evidenced by
statements made at the change-of-plea hearing).

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Gall asks us to construe it in light of its ambiguous nature. See

United States v. Newbert, 504 F.3d 180, 185 (1st Cir. 2007)

("Ambiguities in plea agreements are construed against the

government.").

We are not, however, in any position to choose from among

these possibilities given the limited record that we have before

us. In fact, as we have noted, the record shows that the

conversation between the District Court and the parties that led

to the second plea colloquy took place off the record, and this

conversation might well illuminate the parties' understanding of

the agreement. We thus decline to depart from our usual approach

in which we decline to resolve claims of ineffective assistance of

counsel on direct appeal. See Vázquez-Larrauri, 778 F.3d at 293.

Nevertheless, because Gall has shown a fair likelihood of success

on this particular ineffective assistance of counsel claim, and

because the claim is "factually complex and legally intricate" and

"the facts are largely undeveloped and appellant (who is both

incarcerated and indigent) is severely hampered in his ability to

investigate them," we direct the District Court, "if [Gall]

petitions for section 2255 relief and demonstrates continued

financial eligibility, to appoint counsel for him under 18 U.S.C.

§ 3006A(a)(2)(B)." United States v. Mala, 7 F.3d 1058, 1063-64

(1st Cir. 1993).

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 V.

We now turn to Gall's challenges to his sentence. He

raises four in all, some of which challenge the sentence as a whole

and some of which focus on problems with certain aspects of it.

A.

Gall first argues that the prosecutor breached the plea

agreement at the sentencing hearing and that the breach requires

a new sentencing hearing. Gall contends that the breach occurred

when the prosecutor said to the District Court:

Your Honor, in this case let me first state
that we have no objection to the pre-sentence
report. Of course, it came back different
than our plea agreement, but the calculations,
we believe, are correct. That being said, we
are going to stand by our 87-month request in
this. We have [agreed to] a range of 70 to 87
months. We are going to recommend a sentence
of 87 months of imprisonment.

Gall argues that the prosecutor's statement that the calculations

in the PSR were "correct" breached the plea agreement. He points

out that the PSR included two guideline enhancements -- one for

the number of images possessed and the other for distribution of

child pornography in exchange for a thing of value -- that were

not in the plea agreement and that the parties had agreed in that

agreement that "no further adjustments or departures to

Defendant's base offense level shall be sought by the parties."

To succeed on this argument, Gall concedes that he must

show plain error due to his failure to raise this argument below.

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Gall thus must show that the government breached the plea

agreement, that the breach was "clear or obvious," that Gall was

prejudiced as a result, and that the error "seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings." Puckett v. United States, 556 U.S. 129, 135, 141-

43 (2009) (alteration in original) (quoting United States v. Olano,

507 U.S. 725, 736 (1993)); see also United States v. Riggs, 287

F.3d 221, 225 (1st Cir. 2002) (explaining that although plain error

review "usually applies to errors committed by the court, we have

also assessed governmental breaches of plea bargains, in the

absence of a contemporaneous objection, under this same

standard"). Gall has not done so.

The first problem for Gall concerns his argument that

the prosecutor breached the plea agreement. The prosecutor stated

that the government's position was that the calculations in the

PSR correctly reflected the facts in the case. At the same time,

the prosecutor sought only the enhancements in the plea agreement

by recommending a sentence of 87 months -- a sentence that reflects

the guideline calculations in the plea agreement, and not those in

the PSR.7 Thus, the prosecutor's statement to the District Court

7
The plea agreement calculated an offense level of 27.
Although the agreement left Gall's criminal history category open,
the PSR calculated Gall's criminal history as category I, and a
criminal history category I and offense level of 27 corresponds to
a guideline range of 70 to 87 months. See U.S.S.G. Sentencing
Table (2014).

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does not reveal -- as Gall would have us conclude -- that the

prosecutor sought enhancements beyond those set forth in the plea

agreement. Rather, in responding to the District Court, the

prosecutor appears to have carefully balanced his two (in this

case competing) obligations to comply with the terms of the

agreement and "to provide relevant information to the sentencing

court." United States v. Almonte-Nuñez, 771 F.3d 84, 89-90 (1st

Cir. 2014); see also United States v. Reyes-Santiago, 804 F.3d

453, 474 (1st Cir. 2015) ("'[T]he prosecution's solemn duty to

uphold forthrightly its end of any bargain that it makes in a plea

agreement' must be balanced against 'its equally solemn duty to

disclose information material to the court's sentencing

determinations.'" (alteration in original) (quoting United States

v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000))).

In addition, Gall has not now shown that he was

prejudiced by any breach, even assuming that there was one. For

while Gall objects to the prosecutor's statement that the guideline

calculations in the PSR were "correct," defense counsel

acknowledged at the sentencing hearing that the record supported

the PSR's calculations. Moreover, the District Court's

explanation for Gall's sentence does not indicate that the District

Court adopted the calculations in the PSR because of the

prosecutor's statement, or that the District Court would not have

adopted those calculations absent that statement. For these

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reasons, Gall has not shown the prejudice necessary to establish

plain error in this case. See Puckett, 556 U.S. at 141-42.8

B.

Gall next argues that the District Court erred when it

applied a five-level enhancement to his base offense level under

U.S.S.G. § 2G2.2(b)(3)(B). That enhancement applies when a person

convicted of possessing child pornography also distributed child

pornographic materials "for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain." Id.

But Gall waived this objection below.

The PSR stated that Gall distributed child pornography

"for the receipt, or expectation of receipt, of a thing of value,"

and described online communications in which Gall requested images

from others, expressed appreciation for images that others had

sent him, and, in one instance, demanded, "U first so I can build

trust send photos." Gall did not object to the PSR, and at the

sentencing hearing defense counsel expressly remarked, while in

Gall's presence, on the PSR's application of the five-level

enhancement that Gall now challenges. Defense counsel stated that

the enhancement applied because Gall "would upload and would

8 Gall also argues that counsel was ineffective in failing to
object to the prosecutor's statement on the ground that it
constituted a breach of the plea agreement. Although we are
doubtful that this argument has merit, we leave it to be raised,
if Gall so chooses, in a § 2255 petition.

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exchange images" and "would get something in return." Defense

counsel moreover characterized Gall, again in Gall's presence, as

somebody "going through the Internet and browsing and actually

exchanging images with other people that are as sick as him." Gall

therefore cannot challenge that enhancement on appeal. See United

States v. Murphy-Cordero, 715 F.3d 398, 400-01 (1st Cir. 2013)

(holding that defense counsel's "admi[ssion] in the district court

that the defendant possessed firearms during the commission of the

offense of conviction" waived for the purposes of appeal any

objection to the application of a two-level enhancement for

possession of a dangerous weapon).9

C.

Gall next argues that, even if the District Court

correctly calculated the guidelines sentencing range, his 135-

month prison sentence is substantively unreasonable and that he

should have been sentenced in accordance with the much lower

sentencing range -- 70-87 months -- that the parties recommended

in the plea agreement. But the District Court is not bound by

such a recommendation, see United States v. Reverol-Rivera, 778

F.3d 363, 367 (1st Cir. 2015), and the actual sentence Gall

received is at the low end of the guideline sentencing range of

9 Gall contends that counsel's performance was
constitutionally deficient because she failed to object to this
enhancement. We leave that argument, too, for a § 2255 petition.

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135 to 168 months. Thus, for Gall's substantive reasonableness

challenge to succeed, the parties agree, he must make the difficult

showing that the District Court abused its discretion in not

imposing a below-guidelines sentence. Gall has not done so.

To support his argument, Gall points to various

mitigating factors. He is, as he puts it, "a 54-year-old father

of four who stopped his education in eleventh grade to help his

mother by working," who worked "his entire life" and has "a

childhood history of being sexually abused, which led him to

alcoholism." Gall also argues that he "just possessed" child

pornography and exhibited "no intentions of

actually . . . molesting any child." Accordingly, he contends

that a sentence of 70 to 87 months, as recommended in the plea

agreement, would be sufficient for him to receive "treatment," and

that a long term of civil commitment or supervised release would

provide adequate punishment and deterrence.

The District Court determined, however, that sentencing

within the below-guidelines range proposed by the parties would

"not reflect the seriousness of the offense, [] not promote respect

for the law, [] not protect the public from further crimes by Mr.

Gall, and [] not address the issues of deterrence and punishment."

The District Court further explained that although Gall did not

"touch[] or abuse[]" children himself, his possession of child

pornography fueled the market for child pornography, and thus

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indirectly harmed children. And the District Court offered this

explanation for its sentence after discussing some of the

mitigating factors Gall identifies and after having been made aware

of the others either by the PSR or by the arguments that Gall's

counsel made at the sentencing hearing. Thus, Gall's challenge to

the substantive reasonableness of the sentence fails. See United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008) (explaining that

a "plausible sentencing rationale and a defensible result" form

the "the linchpin" of a substantively reasonable sentence); see

also United States v. Rivera-Clemente, 813 F.3d 43, 53 (1st Cir.

2016) ("The sentencing court has 'the latitude to emphasize the

nature of the crime over the mitigating factors, and such a choice

of emphasis . . . is not a basis for a founded claim of sentencing

error.'" (alteration in original) (quoting United States v. Ramos,

763 F.3d 45, 58 (1st Cir. 2014))).

D.

Gall's final challenge to his sentence focuses on the

special condition on his 15-year term of supervised release that

limits his access to all pornographic material. He concedes that

he did not object to this condition below and that he must meet

the plain error standard. We conclude that he has done so.

The special condition that Gall challenges provides that

Gall may not:

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 view, use, possess, purchase, distribute or
subscribe to any form of pornography, erotica
or sexually stimulating visual or auditory
material, electronic media, computer programs
or service, including but not limited to
videos, movies, pictures, magazines,
literature, books, or other products depicting
images of nude adults or minors in a sexually
explicit manner.

The condition further forbids Gall from entering any location where

such material can be accessed. It states:

Defendant shall not enter any location where
pornography, erotica or sexually stimulating
visual or auditory material can be accessed,
obtained or viewed, including adult
pornography shops, strip or topless clubs,
massage parlors, or any business where the
primary function is to provide pornography or
sexual services.10

Our prior decisions in United States v. Perazza–Mercado,

553 F.3d 65 (1st Cir. 2009), and United States v. Medina, 779 F.3d

55 (1st Cir. 2015), guide our analysis in this case. In each case,

we considered, on plain-error review, challenges to conditions

that prohibited the defendants in those cases from possessing any

10 Gall does not challenge the final line of the special
condition, which prohibits him "from accessing any material that
relates to the activity in which he was engaged in committing his
offense, namely child pornography." Nor does Gall challenge the
entire condition as vague, and so we need not decide whether it
presents a vagueness problem. See United States v. Medina, 779
F.3d 55, 61 n.5 (1st Cir. 2015) (taking this same approach to a
similar condition where no vagueness issue was presented); cf.
United States v. Perazza–Mercado, 553 F.3d 65, 81 (1st Cir. 2009)
(Howard, J., dissenting in part) (raising possible concerns about
the vagueness of a condition that prohibited a defendant from
possessing "any kind of pornographic material").

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pornographic materials. Medina, 779 F.3d at 61-62; Perazza-

Mercado, 553 F.3d at 74-75. In finding for the defendant in each

case, we explained that a trial court must "provide a reasoned and

case-specific explanation for the sentence it imposes," and we

held that the trial court had not done so with respect to the

special condition banning the defendant's possessing any

pornography. Medina, 779 F.3d at 61-63; Perazza-Mercado, 553 F.3d

at 75-76. We further held that the district court's reasoning

could not be inferred from the record, Medina, 779 F.3d at 63;

Perazza-Mercado, 553 F.3d at 75-76, as there was no evidence in

the record to support the conclusion that pornography had

"contributed to [the defendant's] offense or would be likely to do

so in the future," Perazza-Mercado, 553 F.3d at 76; accord Medina,

779 F.3d at 63 (same).

The facts of this case differ from those in Perazza-

Mercado and Medina in that Gall was convicted of possessing child

pornography whereas the defendants in Perazza-Mercado and Medina

were not convicted of child-pornography-related offenses. See

Perazza-Mercado, 553 F.3d at 66 (sexual contact with a minor);

Medina, 779 F.3d at 57 (failure to register as a sex offender).

But, as we will explain, that difference does not require a

different outcome here.

In this case, as in both Medina and Perazza-Mercado, the

District Court did not provide any explanation for imposing the

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special condition that Gall challenges on appeal. To show that

the explanation may be inferred from the evidence in the record,

the government points to the statement in the PSR that Gall's

longtime partner "indicated [that] Mr. Gall would have her watch

adult pornography with him and start online conversations with

adults erotically" and that she "indicated Mr. Gall would want her

to be part of these conversations." But a similar fact was present

in Medina, see Medina, 779 F.3d at 63 (stating that the PSR

"note[d] that [the defendant's] ex-wife 'indicated that they often

watched pornography together while having intercourse,'" and that

this occurred "at approximately the same time as [the defendant's]

underlying sex offense"), and was deemed insufficient because

"nothing in the record link[ed] th[at] single reference, involving

lawful adult behavior, to the criminal acts that serve[d] as the

basis for the special supervised release condition," id. So, too,

here. In fact, Gall's partner told the probation office that

although she participated in Gall's erotic online conversations

with adults, she did not see any child pornography.

The government does contend that the condition is

"reasonably related to the need for correctional treatment, since

Gall proved to be obsessed with pornography (of both adults and

children), and because some studies find a link between recidivism

of sexual offenders and exposure to pornography." But we are not

sure what the government means by "obsessed," and the government

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has not explained why the record supports that characterization.

Nor is there any indication that the District Court imposed this

condition on the basis of a determination that the link that the

government contends is identified in "some studies" is strong

enough to support this condition. Thus, we believe our decision

in Medina and Perazza-Mercado control, as the record provides no

basis for inferring an explanation that the District Court

otherwise did not supply. See Perazza-Mercado, 553 F.3d at 77-79

(conducting the plain error analysis); Medina, 779 F.3d at 64

(relying on Perazza-Mercado to find plain error without conducting

the four-pronged analysis).

This leaves Gall's challenge to the portion of the

special condition that prohibits him from entering any location

where pornographic materials are available. But this portion of

the condition is plainly erroneous for the same reason the

prohibition on Gall's possessing such pornographic materials is

plainly erroneous: the District Court gave no explanation for

imposing it and the record is not one that permits us to impose

it.11

11
Because the entire special condition (save the last line
regarding child pornography, which Gall does not challenge) may be
vacated on the ground that it lacks "adequate evidentiary support
in the record," United States v. Roy, 438 F.3d 140, 144 (1st Cir.
2006), we need not address Gall's constitutional challenge or his
contention that his counsel below was ineffective in not objecting
to the condition.

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 VI.

In sum, we vacate the condition of supervised release

that prohibits Gall from possessing adult pornography and from

entering any location where such pornography is available, and we

remand for resentencing limited to a re-examination of that

condition. We dismiss Gall's challenge to his conviction and

sentence on the basis of ineffective assistance of counsel without

prejudice to his bringing that challenge in a § 2255 petition. We

otherwise affirm.

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