United States v. Benoit

United States Court of Appeals
For the First Circuit

No. 19-1476

UNITED STATES OF AMERICA,

Appellee,

v.

ZACHARY BENOIT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.

Dorothy E. Graham, Assistant Federal Public Defender, on
brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Scott
W. Murray, United States Attorney, on brief for appellee.

September 1, 2020
 THOMPSON, Circuit Judge. The defendant, Zachary Benoit,

pleaded guilty to one count of transporting child pornography and

one count of possessing child pornography. Benoit challenges the

substantive reasonableness of his prison sentence and argues the

district court abused its discretion when it imposed two special

conditions of supervised release. After careful consideration, we

affirm.

BACKGROUND

A. The Crimes

Because Benoit pleaded guilty, we draw the facts of the

case from the transcript of the sentencing hearing and undisputed

portions of the Presentence Report ("PSR"). See United States v.

Bermúdez–Meléndez, 827 F.3d 160, 162 (1st Cir. 2016).

In the summer and fall of 2017, New Hampshire law

enforcement was investigating the online sharing of child sexual

abuse images. The investigation identified Benoit's IP address as

one of the computers downloading and sharing hundreds of images

and videos of children being sexually and physically abused. After

executing a search warrant at Benoit's home, police uncovered

multiple computers and hardware for digital storage. Officers

confiscated and examined those devices and ultimately discovered

299 pictures and 418 videos depicting the sexual and physical abuse

of children.

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 Benoit agreed to be interviewed by a detective and

disclosed several things that prove relevant to our analysis.

Benoit explained that he used multiple file sharing platforms to

acquire child pornography. He admitted knowing that one of the

platforms automatically permitted other users to access files from

his library of child pornography and that he used another

application to trade child pornography files with another user.

He sent one user about 50 child pornography files in exchange for

100 similar files.

Benoit was not particularly discriminatory, disclosing

to the detective that he liked all types of child pornography,

though he preferred images of young girls. He built his library

of pornography based on the searches of "other pedophiles,"

deleting files he downloaded if the children in them were "too

young," which he explained was a child under five or six years

old. He directed the detective to a file folder that had five

videos depicting extensive sexual abuse and physical torture of a

child under two years old. He described this folder as

"disgusting" but held onto it. His interests in pornography, he

declared, had become extreme and offensive since he first started

downloading these images.

When asked about physical contact with children, Benoit

denied ever abusing his own son or any child. He further denied

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speaking to a child or to anyone representing themselves to be a

child online.

In 2018, a grand jury indicted Benoit for Transportation

of Child Pornography, in violation of 18 U.S.C. § 2252(a)(1), and

Possession of Child Pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B).

B. Dr. Guidry's Assessment

On September 18, 2018, at the request of his attorney,

Benoit met with a psychologist, Dr. Laurie L. Guidry (an expert

hired by the defendant), for a psychosexual risk assessment.

Benoit reported that he started masturbating to images of child

sexual abuse when he was twenty-three years old (he was twenty-

seven when he was arrested in this case). Benoit explained he

learned he could download pornographic videos and started to view

pornography that depicted pre-teens and then prepubescent females.

While he did not prefer a particular age group, he did not like

toddlers and babies, so, if he was searching for pornography, he

would search for content depicting children aged nine years and

older. Though he sometimes downloaded pornography that included

the torture of children, Benoit said that he was not interested in

material that indicated force. He also acknowledged that he

understood children could not consent to sexual activity, and he

again denied that he ever pursued or engaged in sexual contact

with a child. At age eight, he divulged, he and his four-year-
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old step-sister engaged in sexual misconduct.1 When his parents

discovered this behavior, they stopped it and got Benoit into

counseling.

Dr. Guidry diagnosed Benoit with patterns of social

anxiety hindering his ability to have comfortable interpersonal

relationships and Dysthymic Disorder because he presented with

symptoms of a generally depressed mood. Dr. Guidry determined

that when comparing Benoit to other child pornography offenders,

he "present[ed] a relatively low risk for recidivating with a

contact sexual offense." This was based, in part, on what Dr.

Guidry described as Benoit's "social phobia and reluctance to

establish interpersonal connections" making it unlikely he would

act on a sexual interest in children. Dr. Guidry further opined

that Benoit's risk of committing another online sexual offense was

"elevated if untreated but manageable if his psychological

vulnerabilities are adequately addressed in treatment."

C. The Guilty Plea and Sentencing

On November 7, 2018, Benoit pleaded guilty without a

plea agreement. Six month later, the District Court held Benoit's

sentencing hearing. The District Court calculated Benoit's total

offense level to be 35 and his criminal history category to be I,

1 The PSR noted this and that Benoit reported to probation
that he was sexually abused by an eight- or nine-year-old neighbor
when he was approximately five years old.
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yielding a sentencing guideline range of 168 to 210 months.2 Benoit

did not object to this calculation. Citing the number of files in

Benoit's possession, the amount of violence in some of the images,

and Benoit's practice of sharing the images with others, including

trading files for more child pornography, the government

recommended a 168-month sentence. Defense counsel requested a 60-

month sentence, arguing that, per Dr. Guidry's conclusion (whose

report was filed under seal with Benoit's sentencing memo), Benoit

presented a low risk of committing a contact sexual offense upon

release, Benoit was cooperative with investigators, and he

complied with all supervision conditions while he was released

after his arrest. The defendant was meted out a 156-month prison

term.

2
The court relied on the PSR to reach this conclusion. The
PSR calculated Benoit's base offense level to be a 22 and
recommended a two-level increase "because the material involved
prepubescent minors who had not attained the age of 12," a five-
level increase "because the offense involved the distribution for
the receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain," a four-level increase "because the offense
involved material that portrayed sadistic conduct," a five-level
increase "because the offense involved more than 600 images," and
a total of a three-level decrease for acceptance of responsibility.
The PSR also recommended a two-level increase "because the offense
involved the use of a computer," but the defendant objected to
this increase, arguing that this enhancement would apply in almost
every child pornography case and would thus defeat the purpose of
enhancements (which are supposed to increase a sentence where the
conduct is worse than the typical conduct of such an offense).
The district court agreed with the defendant and found that the
enhancement for using a computer should not apply. In total, those
calculations resulted in the total offense level of 35.
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 Backing up for a moment, probation also recommended that

Benoit's conditions of supervised release include restrictions on

his contact with children. Specifically, the PSR included a

recommended condition, Condition #1, that Benoit be prohibited

from direct contact with any child under the age of 18, including

his own son, without the permission of his probation officer.

Condition #1 defined direct contact as "written communication, in-

person communication, or physical contact," but not "incidental

contact during ordinary daily activities in public places." The

PSR also included a recommended condition, Condition #6, that

Benoit not go "any place where [he] know[s] children under the age

of 18 are likely to be, including parks, schools, playgrounds, and

childcare facilities."

"Unreasonable" is how Benoit framed his objection to

these conditions. Both, he argued, would restrict his contact

with his son and any future children he may have, thus

"interfer[ing] with his ability and right to raise his own

children."

Disagreeing, the district court found the supervised

release conditions to be "appropriate because . . . they are

reasonably related to the Section 3553(a) factors; they do not

involve any greater deprivation of liberty than is necessary; and

[they are] consistent with the policy statements issued by the

Sentencing Commission under the facts of this case." The court
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amended Condition #6 to prohibit Benoit from going to places where

he knows children are likely to be only without permission from

his probation officer. With that change to Condition #6, the

district court imposed Conditions #1 and #6 (as well as other

conditions not relevant here).

OUR TAKE

On appeal, Benoit asks us to review both the length of

his prison sentence and the special conditions restricting his

contact with children, protestations he made below. We begin our

analysis with Benoit's term of incarceration by considering

whether the sentencing judge so poorly balanced the relevant

considerations that the resulting sentence was unreasonable. We

then turn to Benoit's argument about his contact with children,

specifically his three-year-old son, after his release from

prison.

A. Benoit's 156-Month Sentence

We review Benoit's sentence for an abuse of the

sentencing judge's discretion. United States v. Perretta, 804

F.3d 53, 56 (1st Cir. 2015). "The touchstone of abuse of

discretion review in federal sentencing is reasonableness."

United States v. Vargas–Dávila, 649 F.3d 129, 130 (1st Cir. 2011)

(citing Gall v. United States, 552 U.S. 38, 46 (2007)). A sentence

is substantively unreasonable (and the sentencing judge has

therefore abused his discretion) "only if it falls beyond the
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expansive 'universe of reasonable sentencing outcomes.'" United

States v. Rodríguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019)

(quoting Bermúdez-Meléndez, 827 F.3d at 167). Ever mindful that

"[r]easonableness is itself an inherently fluid concept,"

Bermúdez-Meléndez, 827 F.3d at 167, we affirm where the sentencing

judge "gave a plausible explanation and reached a defensible

result," United States v. Chisholm, 940 F.3d 119, 132 (1st Cir.

2019) (citation omitted), cert. denied, 140 S. Ct. 1224 (2020).

Put another way, we do not reverse simply because we would have

sentenced the defendant differently. United States v. Martin, 520

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

Before imposing a sentence, the district court must

calculate the sentencing guideline range, which serves as a

"'starting point and the initial benchmark,' but which may not be

presumed reasonable." United States v. Stone, 575 F.3d 83, 94

(1st Cir. 2009) (quoting Gall, 552 U.S. at 49). The district court

considers the factors listed in 18 U.S.C. § 3553(a) and imposes "a

sentence sufficient, but not greater than necessary" to achieve

the sentencing statute's goals of appropriately punishing the

defendant's conduct, deterring future unlawful conduct, protecting

the public from the defendant, and providing the defendant with

the care he needs. 18 U.S.C. § 3553(a). The court then evaluates

the defendant's conduct and history through the prism of the

sentencing guidelines range and sentencing factors to select a
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sentence from the "universe of reasonable sentencing outcomes,"

Bermúdez-Meléndez, 827 F.3d at 167. "A sentencing court is under

a mandate to consider [that] myriad of relevant factors, but the

weighting of those factors is largely within the court's informed

discretion." United States v. Hassan-Saleh-Mohamad, 930 F.3d 1,

9 (1st Cir. 2019) (quoting United States v. Clogston, 662 F.3d

588, 593 (1st Cir. 2011)).

Benoit's argument that his sentence is substantively

unreasonable breaks down to two, connected points. Benoit argues

that the sentencing guidelines are especially harsh for child

pornography offenses and the sentencing court gave the guidelines

"undue weight." Relatedly, according to Benoit, while the court

overvalued the guidelines, it undervalued his mitigating evidence,

including that he had no prior criminal history, that he cooperated

with law enforcement, and the findings in Dr. Guidry's report.

Our review of the sentencing transcript reveals that

Benoit's argument lacks any factual support in the record.

Beginning with his argument about the guidelines, we again

recognize that the sentencing guidelines punishing child

pornography crimes "are very stern," Clogston, 662 F.3d at 593

and, in some circumstances, are "harsher than necessary," Stone,

575 F.3d at 97. Even where the guidelines suggest a long prison

term, a sentence is not substantively unreasonable where the

sentencing court considers the guidelines along with the § 3553(a)
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factors and the details of a defendant's case. See Hassan-Saleh-

Mohamad, 930 F.3d at 9. Here, the sentencing court explicitly

addressed these concerns, noting that "many courts" have in fact

found the child pornography guidelines enhancements to be

"problematic." In apparent agreement with this observation, the

court applied what it determined was a "reasonable variance" and

sentenced Benoit to a sentence one year shorter than the shortest

sentence within the guidelines.

We next search the record for support that the court, as

Benoit claims, improperly disregarded mitigating evidence. We are

left wanting. The district court announced its sentencing

determination expressly mentioning that Benoit

 had not committed any contact offenses

 was sexually abused as a child

 had no prior criminal record

 had a good work history

 had cooperated with law enforcement during the

investigation

 had complied with all release conditions, and

 was found by Dr. Guidry to be a low risk of

committing a contact sexual offense and an elevated

risk of recommitting an online sexual offense only

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 if his psychological vulnerabilities were left

untreated.

The court considered this mitigating evidence and

weighed it against other relevant factors, such as the seriousness

of Benoit's offenses, the impact of child pornography on victims,

Benoit's images depicting "very young children and extremely

sadistic conduct," and Benoit's five-year "fixat[ion] on child

pornography."

Perhaps this is why Benoit does not quite argue that the

sentencing judge outright failed to consider mitigating factors

and simply argues, rather, that the sentencing judge reached the

wrong result. The court carefully assessed the relevant facts

and, in our view, the resulting sentence is one which the court

deemed "sufficient, but not more than necessary." "Though there

can be no question that the result is stern, it is defensible."

Stone, 575 F.3d at 96. We cannot say that this sentence is outside

the "universe of reasonable sentenc[es]," Bermúdez-Meléndez, 827

F.3d at 167, and we therefore see no abuse of discretion.

B. Supervised Release Conditions

We now turn to Benoit's appeal of Conditions #1 and #6

of supervised release. We remind the reader that Condition #1

prohibits Benoit from interacting with children, including his

own, absent probation permission and Condition #6 restricts Benoit

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from going places where he knows children will be, again, without

probation approval.

When imposing conditions of supervised release, a

sentencing court may order "any . . . condition it considers to be

appropriate" if, based on the circumstances of the offense and the

defendant's history, that condition "involves no greater

deprivation of liberty than is reasonably necessary" to achieve

the goals of sentencing, such as protecting the public. 18 U.S.C.

§ 3583(d). We review the imposition of supervised release

conditions for an abuse of that broad discretion. United States

v. Hood, 920 F.3d 87, 92 (1st Cir. 2019). "Under that standard,

we review purely legal questions de novo, factual issues for clear

error, and 'judgment calls' through a 'classically deferential'

lens." Id. (quoting Riva v. Ficco, 615 F.3d 35, 40 (1st Cir.

2010)). "[T]he 'hallmark' that separates the permissible from the

impermissible is whether, given the facts, a certain restriction

was 'clearly unnecessary.'" United States v. Santiago, 769 F.3d

1, 9 (1st Cir. 2014) (quoting United States v. Brown, 235 F.3d 2,

7 (1st Cir. 2000)).

Benoit focuses on the impact of the Conditions on his

ability to parent his son, who, at the time of his sentencing was,

as earlier noted, three years of age. According to the PSR, as a

result of his arrest, Benoit has had no contact with his son or

with his son's mother, and his son's mother was seeking full
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custody. Benoit argues that because he has only committed non-

contact offenses and there is no evidence that he has physically

harmed his son or any child or that he is likely to, there is an

insufficient relationship between his criminal conduct and the

conditions limiting his contact with his son.

In support of his argument, Benoit leans heavily on

United States v. Del Valle-Cruz, where we vacated similar

conditions and remanded for resentencing. 785 F.3d 48, 62-64 (1st

Cir. 2015). This comparison is unpersuasive. In Del Valle-Cruz,

the defendant pleaded guilty to a Sex Offender Registry and

Notification Act ("SORNA") violation for failing to register as a

sex offender, which was required because of a sex offense involving

a minor he committed 17 years earlier. Id. at 52-54. The defendant

had no relevant criminal record in the years since his underlying

conviction and, at the time of sentencing, was living with and

raising his minor children. Id. Offering no reasons whatsoever

for his decision, the judge imposed conditions similar to those

Benoit complains of now. Id. at 53-54. We noted there that

depriving a parent of their ability to raise their child is a

serious deprivation that necessitates an explanation from the

sentencing judge, especially if one is not apparent from the

record. Id. We vacated those conditions and remanded for

resentencing because the judge offered no such explanation and

there was no discernable relationship between that defendant's
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crime (failing to register) and preventing him from continuing to

raise his children (who he had been parenting without incident).

Id. at 58-62. We also noted that seventeen years had passed since

any allegations of the defendant engaging in sexual conduct

involving children, weakening any argument that the conditions

achieved any goal of supervised release. Id. at 63-64.

In this arena, "our inquiry relies on case-by-case

scrutiny of individual circumstances," United States v. Cabrera-

Rivera, 893 F.3d 14, 29 (1st Cir. 2018), and the specifics of

Benoit's case are simply unlike Del Valle-Cruz. When Benoit was

sentenced, he had, a few months earlier, pleaded guilty to

possession and distribution of graphic child pornography, which,

considering all of the relevant facts, demonstrates a more active

risk to children than a SORNA registration violation where the

defendant had no more contemporary record of relevant misconduct.

Compare Del Valle-Cruz, 785 F.3d at 52-54 with United States v.

Mercado, 777 F.3d 532, 539 (1st Cir. 2015) (holding that

restricting SORNA defendant's association with his minor children

was reasonable where recent criminal history indicated risk of re-

offending). Though Dr. Guidry (Benoit's expert) opined that

Benoit's risk of recidivism would be low with proper treatment,

the district court pointed out that at the time of sentencing,

Benoit had undergone no such treatment. Further, the district

court noted that the defendant had sexually abused his sister when
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she was four years of age. Therefore, on sentencing day, the

district court reasonably concluded that Benoit was a risk to his

young son, particularly where Benoit admitted that he viewed

pornography depicting children of many ages and his file collection

reflected both an interest in very young children and in violence

directed at children. Compare United States v. Pabon, 819 F.3d

26, 29, 33-34 (1st Cir. 2016) (affirming the imposition of

conditions restricting the defendant's ability to interact with

children, including his minor daughter, because the relationship

between the conditions and the defendant's conduct was clear where

the defendant had sexually abused a teenage girl and the district

court "found that the conditions were necessary in order to keep

the public safe, and especially to protect minors from [the

defendant]'s violent inclinations") with Cabrera-Rivera, 893 F.3d

at 33-34 (vacating conditions restricting child pornography

defendant from raising his minor children where the conditions

were unexplained by the court, the underlying criminal conduct did

not involve violence, and there was "no basis in the record for

concluding that [defendant] 'is a danger to [his] children'"

(quoting United States v. Fey, 834 F.3d 1, 5 (2016))).

Overall, we do not think that it is "clearly

unnecessary," Brown, 235 F.3d at 7, to restrict Benoit's

interactions with children, including his own son with whom he

currently has no contact, absent a probation officer's approval
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where the record includes Benoit's own admissions that he regularly

masturbated to child pornography and had assembled a collection of

hundreds of child pornography files, including images where very

young children were tortured. See Pabon, 819 F.3d at 31 (approving

of conditions restricting defendant's interactions with minors

where the "defendant's conduct . . . indicates an enhanced risk to

minors"). Further, upon release or in the years that follow,

Benoit can petition the court to amend these conditions. 18 U.S.C.

§ 3583(e)(2). In the meantime, "[t]here is no basis for believing

that the probation officer will unreasonably withhold permission."

Pabon, 819 F.3d at 33 (quoting Mercado, 777 F.3d at 539)

(alteration in original).

CONCLUSION

Accordingly, we affirm Benoit's sentence and the

conditions of supervised release.

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