United States Court of Appeals
For the First Circuit
No. 19-1680
UNITED STATES OF AMERICA,
Appellee,
v.
JAY GACCIONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Lisa Aidlin for appellant.
Lauren S. Zurier, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
appellee.
October 2, 2020
BARRON, Circuit Judge. In 2018, in the District of Rhode
Island, Jay Gaccione pleaded guilty to a number of federal sex
crimes involving minors, for which, due to the extremely disturbing
nature of the conduct, he received a sentence of 2,160 months. At
the change-of-plea hearing, though, he contended, apparently for
the first time, that one of the facts alleged in one of the counts
against him was inaccurate. Although he was willing to plead
guilty to the count at issue -- for distribution of child
pornography -- he asserted that the images underlying that count
did not depict the child identified in the indictment but instead
depicted other children. The District Court nevertheless allowed
Gaccione to plead guilty to the offense set forth in that count
based on his admission that he distributed those other images.
Gaccione now appeals his conviction for that count as well as his
sentence. We affirm.
I.
On January 17, 2017, a grand jury in the District of
Rhode Island charged Gaccione with the following crimes: six
counts of sexual exploitation of a minor under 18 U.S.C. § 2251(a),
one count of distribution of child pornography under 18 U.S.C.
§ 2252(a)(2), and two counts of possession of child pornography
under 18 U.S.C. § 2252(a)(4)(B). Gaccione initially entered a
plea of not guilty, but later notified the District Court of his
intention to switch his plea to guilty on most of the counts
- 2 -
against him. On November 13, 2018, the District Court held a
change-of-plea hearing and Gaccione pleaded guilty to all the
counts except for one of the counts for sexual exploitation of a
minor, which was later dismissed.
Of relevance here is Count VII, which related to the
distribution of child pornography. At the change-of-plea hearing,
the government summarized the evidence supporting this count as
follows:
As to Count VII, the United States would
produce evidence that on or about April 29th,
2016, the Defendant was communicating via
Gmail and Sprint messaging service with an
individual who was in South Africa.
On that date, that individual in South
Africa told the Defendant that he had images
of his three- and five-year-old children and
would trade for like value; and after sending
those images to the Defendant, they discussed
sexual aspects of the images sent to the
Defendant.
Thereafter, the Defendant told that
individual that he had images of his 15-year-
old daughter, who was actually 14, and he sent
six images to that individual in South Africa.
When asked whether he agreed with the government's recitation of
the facts, Gaccione initially said he did. However, after
conferring with his attorney, he stated that the government
attorney "said that I sent pictures of my daughter to someone in
Africa or something like that. I never sent any pictures of her.
It was pictures of, you know, other kids off the internet."
- 3 -
After Gaccione's clarification, the District Court
stated that it did not think the "change in facts would affect the
elements of Count VII." In response, the government expressed
concern about allowing Gaccione to plead guilty to this count on
that understanding, noted the evidence that it contended showed
that Gaccione did in fact distribute pictures of his daughter, and
described how Gaccione's refusal to admit as much might affect
whether "there would be acceptance of responsibility" for the
purposes of the United States Sentencing Guidelines
("Guidelines"). The District Court then asked for Gaccione's
attorney to weigh in on the question. Gaccione's attorney stated
that "the identity of the person in the picture is not an element
of the charge" and that he thought the District Court could "take
the plea based on what [Gaccione's] admitted to today."
The District Court concluded that it could postpone
resolution of the question about acceptance of responsibility
until sentencing because Gaccione was willing to admit to
sufficient facts to satisfy all of the elements of the crime.
Accordingly, it asked Gaccione whether he admitted to the facts as
Gaccione had "amended" them, and, when Gaccione answered "[y]es,"
proceeded to accept his guilty plea on those modified facts.
In advance of sentencing, the United States Office of
Probation and Pretrial Services prepared a presentence report.
The report calculated Gaccione's total offense level under the
- 4 -
Guidelines as forty-seven, which it treated as an offense level of
forty-three, the maximum level recognized by the Guidelines. That
level corresponds to a Guidelines range of life, see U.S.S.G. ch.
5, pt. A, but, because none of Gaccione's individual convictions
allowed for a prison sentence of life, the report recommended a
sentence of 2,280 months' imprisonment, which reflects the sum
total of the maximum prison terms of each of Gaccione's
convictions.
Gaccione's counsel sought a prison sentence of twenty-
five years. The government recommended sixty years' imprisonment,
although it made clear that the "recommendation just as easily
could have been" much longer, as "[t]he point . . . is that Mr.
Gaccione serve a lifetime sentence and that he never set forth out
of prison."
In June of 2019, the District Court sentenced Gaccione.
It began by calculating the offense level, which it agreed was
forty-three, and it acknowledged that the Guidelines therefore
recommended a prison sentence of life. It then proceeded to
sentence Gaccione to a total of 2,160 months', or 180 years',
imprisonment. That sentence consisted of eight sentences to be
served consecutive to one another: five thirty-year prison
sentences for Gaccione's five convictions for sexual exploitation
of a minor, and three ten-year prison sentences for Gaccione's
three convictions for distributing or possessing child
- 5 -
pornography. For each conviction other than the conviction for
distributing child pornography, Gaccione was sentenced to the
maximum prison term allowed under the law. See 18 U.S.C. § 2251(e)
(maximum thirty-year prison sentence for sexual exploitation of a
minor); id. § 2252(b)(1) (maximum twenty-year prison sentence for
distribution of child pornography); id. § 2252(b)(2) (maximum ten-
year prison sentence for possession of child pornography).
In explaining its rationale for imposing a prison
sentence of such length, the District Court stated:
Mr. Gaccione, there is no doubt by
everything that I've read and everything that
I've heard today that you need to be severely
punished because of the severity of this
heinous crime. Your lawyer by recommending 25
years agrees with that, as well as obviously
the government does by its recommendation.
And I don't need to recount, I don't
think, for the victims or for the public or
anyone else, what my feeling is about the
severity. I don't need to any further
demonize you than your actions themselves do
alone. That's not what today is about. [The
government's] allocution of what the crime was
is what this Court believes, and I don't need
to repeat that, despicable and reprehensible
and unfathomable.
The question that the Court has grappled
with and has to grapple with is there is no
punishment that's severe enough for what you
did. The only question becomes whether the
Court imposes a sentence that at some point
might allow you to be released from prison.
And if one merely looked at the seriousness of
the crime, the answer is easy, the answer is
very easy; you'd never get out of prison. But
- 6 -
the thing that I have to look at here is the
human being that stands before me.
And one thing we haven't talked about,
and I don't necessarily need to because it's
in the presentence report and you now know
that I've certainly considered it, is what
your background was. You acted against your
child the way you were acted against. You
watched your -- in addition to that, you
watched your sister be sexually molested at a
very young age by an uncle so you saw it even
in the family. You grew up in, I think it was
described by the probation department, as
horrible conditions; that no child in this
country or anywhere should go through.
There is no doubt in my mind or in science
that there is a correlation between what you
suffered as a child and what you've done here
against your own children and against society.
There's just no question about that. So the
question becomes whether that cause requires
or mandates a cause for this Court to show
some mercy because that's what it would be if
the Court let's [sic] you out on the end.
Because as I've said, if you look at the
severity of the crime, it requires severe
punishment.
The problem with that analysis for this
Court is the victim and victims in this case,
Mr. Gaccione. And we know that this is a
lifetime scar because the scar that you
suffered has had a lifetime throughout yours.
I don't know how your child will deal with
this. I don't know whether she will go out
and abuse when she's 41, how awful that would
be, I just don't know, but anything short of
a lifetime of imprisonment will not give her
the safety and security that she deserves.
Her having the comfort and the security
and safety of knowing that she will never see
you again unless she chooses to behind bars is
the only thing I can offer the victim in this
situation. And it is what keeps me from
imposing some element of mercy which is
- 7 -
oftentimes deserved for someone who was
victimized the way you were.
I don't do it out of malice, I don't do
it out of some political feeling about the
situation. I do it singularly because the
victim deserves that security. She needs and
the others in your family and your ex-wife
need to know that you're going to be locked up
for the rest of your life.
Gaccione then filed this timely appeal.
II.
Gaccione chiefly contends that his conviction on Count
VII cannot stand because the difference between the crime it
alleged -- which involved his distribution of images of his
teenaged daughter -- and the one that he pleaded guilty to
committing -- which involved his distribution of images of other
"kids" -- resulted in not merely a variance in the means of proof
but a "constructive amendment" of the indictment. See United
States v. DeCicco, 439 F.3d 36, 43 (1st Cir. 2006) (describing the
distinction between variances and constructive amendments of an
indictment (citing United States v. Fisher, 3 F.3d 456, 462-63
(1st Cir. 1993))). On that basis, he contends that his conviction
must be vacated, as such a constructive amendment would work a
violation of his rights under the Fifth and Sixth Amendments to
the United States Constitution. See United States v. Brandao, 539
F.3d 44, 57 (1st Cir. 2008). He contends as a fallback, though,
that the divergence between the conduct described in Count VII and
- 8 -
the conduct he admitted to having engaged in when pleading guilty
to this count was a prejudicial variance, which would also violate
his constitutional rights. See United States v. Tormos-Vega, 959
F.2d 1103, 1115 (1st Cir. 1992).
Despite the fact that Gaccione pleaded guilty to this
offense, and despite the statements of his counsel to the District
Court regarding the amendment to the facts at issue, the government
does not contend that either challenge is waived. But even still,
as neither one was raised below, our review is only for plain
error. Brandao, 539 F.3d at 57. Thus, Gaccione must show, as to
each, that there was an error, that it is "clear or obvious," that
his substantial rights were prejudiced thereby, and that the
"fairness, integrity, or public reputation of judicial
proceedings" were "seriously impaired." United States v.
Rodríguez-Milián, 820 F.3d 26, 32-33 (1st Cir. 2016) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)); see
also Brandao, 539 F.3d at 57.
We start with the constructive amendment challenge. The
line between a constructive amendment to an indictment and a
variance from an indictment in the means of proof is not always
easy to discern. See United States v. Rodríguez-Rodríguez, 663
F.3d 53, 58 n.6 (1st Cir. 2011). In light of that murkiness, there
is no basis for concluding that, given this record and the nature
of this offense as one involving the distribution of contraband,
- 9 -
it was "clear or obvious" that there was a constructive amendment
rather than merely a variance. Cf. United States v. Dowdell, 595
F.3d 50, 68 (1st Cir. 2010) (holding that a change in the type of
drug alleged to be at issue in a 21 U.S.C. § 841(a)(1) offense did
not constitute a constructive amendment). Accordingly, this
aspect of his challenge fails at the second prong of the plain
error standard.
Insofar as there was only a variance, moreover, we do
not see how Gaccione can establish the requisite prejudice to show
reversible error. See United States v. Mubayyid, 658 F.3d 35, 54
(1st Cir. 2011) ("[T]o be grounds for reversal, a variance must be
severe enough to affect the defendant's substantial rights.").
Gaccione first contends that "he lacked adequate notice" of the
"new theory of the case" based on pictures of other children. See
Tormos-Vega, 959 F.2d at 1115 (noting that the rule against
prejudicial variances protects the defendant's right to "have
sufficient knowledge of the charge against him in order to prepare
an effective defense and avoid surprise at trial"). But, Gaccione
has not met his burden to show that he was surprised by the fact
that he was being charged with -- and thus was pleading guilty to
-- distributing pictures of "kids" other than his daughter. He
was the one who independently chose to inform the District Court
that it was this conduct in which he had engaged in committing the
offense at issue.
- 10 -
Gaccione does now also suggest that other defenses may
have been available to him on account of the different identity of
the victim. But, he fails to develop these defenses in any detail.
He thus cannot rest his showing of prejudice on the mere
possibility that he somehow was hindered in his ability to advance
them by the events that transpired during his plea colloquy.
Finally, Gaccione contends that prejudice exists
because, in consequence of the change he contests, he runs the
risk of being charged for a future offense in violation of his
right to protection from being twice placed in jeopardy for the
same offense. See Tormos-Vega, 959 F.2d at 1115. We do not see
how that is so. Whatever double jeopardy rights he has remain and
may be asserted if and when any new charge is brought. See United
States v. Fermin Castillo, 829 F.2d 1194, 1197 (1st Cir. 1987)
("[N]o legitimate double jeopardy concerns hover in the wings. If
need be, the record from [the] trial . . . can be introduced in
any subsequent prosecution in support of a double jeopardy
defense." (citing United States v. George, 752 F.2d 749, 754 (1st
Cir. 1985))). Certainly, given what the record reveals about what
transpired during the change-of-plea hearing, nothing about the
nature of the crime Gaccione was ultimately convicted of committing
is ambiguous. See Mubayyid, 658 F.3d at 49 n.19 (noting that the
record must "show with accuracy the extent to which the defendants'
convictions bar subsequent prosecution").
- 11 -
III.
Gaccione's next set of challenges to his conviction on
Count VII rely on Rule 11 of the Federal Rules of Criminal
Procedure. But, as here, too, he did not make these objections
below, our review is only for plain error. See United States v.
Dominguez Benitez, 542 U.S. 74, 80 (2004).
Gaccione first argues that his plea on this count lacked
an adequate factual basis, see Fed. R. Crim. P. 11(b)(3), because
no images of child pornography were ever recovered and thus it is
impossible to know whether the images constituted child
pornography. It is true that the images themselves are not in the
record and that no detailed description of their content was
offered by either Gaccione or the government. But, during the
change-of-plea hearing, the government contended that it had
evidence showing that Gaccione was communicating "with an
individual who was in South Africa," that this person proposed
trading photographs of underage children with Gaccione and sent
him photos of his young children, that Gaccione and his trading
partner "discussed sexual aspects of" the images that this other
individual sent to Gaccione, and that Gaccione "sent six images"
of his fourteen-year-old daughter to that other individual. The
government also contended that Gaccione produced and possessed
sexually explicit images of his daughter. Gaccione admitted that
these facts were true, with the sole exception that he denied that
- 12 -
he sent pictures of his daughter to the man in South Africa. He
instead claimed to have sent pictures of "other kids off the
internet."
From these admissions, the record supports the finding
that Gaccione "trade[d]" the photographs of the "kids off the
internet" at issue for "like value" of other photographs that were
of underage children, that Gaccione discussed the sexual content
of the images that he received as part of the exchange with his
trading partner, and that Gaccione created and possessed other
images of a minor -- his daughter -- that were described in detail
in ways that made clear that they were sexually explicit. No more
was needed to ensure that the District Court did not clearly or
obviously err in determining that it had a "reasoned basis" for
finding that the defendant distributed images of minors and that
the nature of those images was pornographic. United States v.
Matos-Quiñones, 456 F.3d 14, 21 (1st Cir. 2006); see also id.
(noting that facts may come from the defendant's admissions); id.
("Rule 11 does not require 'a test of guilt versus innocence,'
much less proof 'beyond a reasonable doubt . . . .'" (quoting
United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005))).
Gaccione appears separately to argue that there was an
insufficient factual basis for his plea because no evidence shows
that the images were of his daughter. But, he did not plead guilty
- 13 -
to distributing images of his daughter; he pleaded guilty to
distributing images of other underage children.
Finally, Gaccione contends that his plea was not
voluntary and knowing as required by Rule 11(b)(1)(G) and Rule
11(b)(3). Gaccione fails to clearly explain this argument, but,
insofar as it does not mirror his arguments about the sufficiency
of the factual basis for his plea, it is apparently premised on
the contention that the last-minute switch in the nature of the
plea -- from one premised on photos of the daughter to one premised
on photos of other children -- left Gaccione unaware of the nature
of the charges against him. But, he was the one who noticed that
the government's recitation of the facts stated (inaccurately, he
alleges) that the images he distributed were of his daughter and
denied that particular fact. Where, as here, "the prosecutor's
statement . . . sets forth all elements of the offense and the
conduct of the defendant that constitutes the offense, 'the
defendant's admission that the allegations are true is sufficient
evidence that he understands the charge.'" United States v. Cotal-
Crespo, 47 F.3d 1, 6 (1st Cir. 1995) (quoting United States v.
Darling, 766 F.2d 1095, 1099 (7th Cir. 1985)).
IV.
We turn, then, to Gaccione's challenges to the sentence.
We start with his procedural challenges, which, the government
correctly points out, Gaccione failed to raise below. We therefore
- 14 -
review them only for plain error. See United States v. Rondón-
García, 886 F.3d 14, 20 (1st Cir. 2018).
Several of these procedural challenges deal with the
fact that Gaccione received an aggregate 2,160-month prison
sentence, which amounts to 180 years -- much longer than his
remaining lifespan. These challenges each presume that his 2,160-
month prison sentence is somehow longer than a sentence of "life."
We addressed and rejected similar arguments in United States v.
Goodman, 971 F.3d 16 (1st Cir. 2020), and United States v.
Saccoccia, 58 F.3d 754 (1st Cir. 1995), and they fail here for the
same reasons. See Goodman, 971 F.3d at 20-21; Saccoccia, 58 F.3d
at 786 & n.28. Thus, so, too, do his procedural challenges that
rely on them.1
The other procedural challenge that Gaccione brings is
to the adequacy of the District Court's weighing of the sentencing
factors outlined in 18 U.S.C. § 3553(a). See Gall v. United
States, 552 U.S. 38, 49-50 (2007). But, it is clear that the
District Court gave Gaccione the sentence it did because it thought
the crime was very serious: "[I]f one merely looked at the
seriousness of the crime, the answer is easy . . . you'd never get
1
As Gaccione points out, the District Court at sentencing
incorrectly stated that it sentenced Gaccione to 2,280 months'
imprisonment. That mistake was corrected in the judgment.
Although Gaccione suggests that this misstatement constituted
procedural error, in light of the correction, we do not see why.
- 15 -
out of prison." The District Court considered, moreover,
Gaccione's own history as a victim of abuse as a child and his
witnessing of other abuse committed by family members upon other
family members. The District Court nonetheless found these aspects
of Gaccione's case insufficient to warrant a reduced sentence given
the unusually disturbing nature of the conduct. Although Gaccione
takes issue with some of the District Court's chosen language, he
does not identify any specific concerns that the District Court
failed to consider.
Gaccione does make note of the fact that the District
Court went on to explain in handing down the sentence its interest
in Gaccione's daughter, the primary victim of his crimes, having
"the comfort and the security and safety of knowing that she will
never see you again unless she chooses to behind bars." He objects
that mental security for victims is not itself a § 3553(a) factor.
But, the District Court's comments are reasonably read to be
supportive of its conclusion about "the seriousness of the
offense," which the law does recognize as a permissible sentencing
factor. See 18 U.S.C. § 3553(a)(2)(A).
Gaccione separately contends -- in an argument that is
in its own right disturbing -- that the District Court erred in
sentencing him to such a long prison term to protect his daughter
because a shorter one would still have ensured that, by the time
of Gaccione's release, he would no longer have a sexual interest
- 16 -
in her, he would be in diminished physical condition, and she would
be able to protect herself. That contention ignores that the
rationale for the District Court's sentence was permissibly based
on the seriousness of the offense conduct. There thus was no plain
error.
V.
Gaccione also challenges the substantive reasonableness
of his sentence, as he did below, and so we review for abuse of
discretion. See United States v. García-Mojica, 955 F.3d 187, 194
(1st Cir. 2020). In doing so, we look at "the totality of the
circumstances," id. (quoting United States v. Vázquez-Martínez,
812 F.3d 18, 26 (1st Cir. 2016)), and ask "whether the sentence is
the product of 'a plausible . . . rationale and a defensible
result,'" United States v. Rivera-González, 776 F.3d 45, 51 (1st
Cir. 2015) (omission in original) (quoting United States v. Martin,
520 F.3d 87, 96 (1st Cir. 2008)).
The conduct involved in the crimes at issue included
Gaccione repeatedly raping his fourteen-year-old daughter, forcing
her to engage in sexually explicit acts, and photographing her
engaging in those acts. We discern no abuse of discretion in
either the District Court's rationale or its result.
In arguing otherwise, Gaccione relies in part on
contentions that the District Court erred in imposing the sentence
that are predicated on the assumption that a 2,160-month prison
- 17 -
sentence is greater than a prison sentence of "life" that equally
guarantees the defendant will be in prison for the rest of his
life. As already discussed, that assumption is mistaken, and thus
so, too, are these challenges. Gaccione's sentence was precisely
equivalent to what the Guidelines recommended, which is further
evidence of its reasonableness. See United States v. Hernández-
Maldonado, 793 F.3d 223, 227 (1st Cir. 2015) ("[R]eversals in
substantive reasonableness challenges are 'particularly unlikely
when . . . the sentence imposed fits within the compass of a
properly calculated [guidelines sentencing range].'" (second and
third modifications in original) (quoting United States v. Ruiz-
Huertas, 792 F.3d 223, 228-29 (1st Cir. 2015))).
Other of Gaccione's challenges merely repeat the same
contentions about the District Court's treatment of the § 3553(a)
factors that he raises in his procedural reasonableness challenge.
For the same reasons those challenges fail there, they do here as
well.
Gaccione also notes that, in United States v. Jenkins,
854 F.3d 181 (2d Cir. 2017), the Second Circuit expressed serious
concerns that even sentences falling within the range prescribed
by straightforward applications of U.S.S.G. § 2G2.2, the Guideline
that applies to child pornography offenses, would, because of the
unique nature of the enhancements at issue in that Guideline, often
be substantively unreasonable. 854 F.3d at 188-90. But, these
- 18 -
concerns have no bearing on this case, given that the conduct for
which Gaccione was sentenced involved the repeated sexual assault
of his daughter. See id. (distinguishing the unreasonable sentence
at issue from ones in which the defendant had contact with
children, produced pornography, or distributed, rather than merely
possessed, child pornography).
Finally, Gaccione contends that it was substantively
unreasonable to sentence him as harshly as a murderer. But, he
identifies no authority indicating that a life sentence for the
sort of inarguably horrific conduct he engaged in was unreasonable
merely because it did not result in the death of another. He also
points to a number of cases in which defendants have been sentenced
to lighter sentences for what he contends is comparable or worse
conduct. See, e.g., United States v. Arsenault, 833 F.3d 24 (1st
Cir. 2016). But, at least with regard to the statutory provision
that requires judges to consider the need to avoid sentencing
disparities, 18 U.S.C. § 3553(a)(6), that provision "raises
concerns only 'if two identically situated defendants received
different sentences from the same judge,'" Arsenault, 833 F.3d at
33 n.5 (quoting United States v. Wallace, 573 F.3d 82, 97 (1st
Cir. 2009)), and Gaccione has not shown that he was identically
situated to any of the defendants in these other cases. A number
of the cases Gaccione cites, moreover, provide affirmative support
for the District Court's chosen sentence, as they explain how
- 19 -
horrific sex crimes may warrant a prison sentence that is nominally
much longer than the human lifespan. See, e.g., United States v.
Hamilton, 548 F. App'x 728, 730-31 (2d Cir. 2013) (concluding that
a 1,800-month sentence based on a defendant's "role in producing
graphic child pornography by filming himself sexually abusing
children" was justified given the "grave" nature of the crimes and
the fact that "any potential error in imposing additional
consecutive sentences is necessarily harmless"); United States v.
Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012) (stating that "it is
not for us to micro-manage how the district court exercised its
discretion . . . in order to ensure that [the defendant] would in
fact serve a life sentence" and recognizing that even a 750-year
sentence may be defensible on incapacitation and seriousness
grounds for a defendant "whose child pornography offenses
victimized his granddaughters" (citing United States v. Betcher,
534 F.3d 820, 828 (8th Cir. 2008))).
"In most cases, there is not a single appropriate
sentence but, rather, a universe of reasonable sentences," Rivera–
González, 776 F.3d at 52, and the District Court's choice of a
sentence that ensured Gaccione would not be released during his
life was not outside the range of the reasonable, given the nature
of the conduct, the deference we owe to the District Court's
determination, and the fact that the sentence was within the
Guidelines range.
- 20 -
VI.
We affirm.
- 21 -