Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1542
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORIO ROMAN-PORTALATIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Chauncey B. Wood, with whom Wood & Nathanson, LLP, was on
brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emila Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, were on brief, for appellee.
April 25, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The defendant, Gregorio
Roman-Portalatin, pleaded guilty to charges of persuading a minor
to engage in unlawful sexual conduct, 18 U.S.C. § 2422(b), and
possessing child pornography, 18 U.S.C. § 2252(a)(4)(B). Although
the plea agreement recommending a sentence of 135 months in prison
was based on the assumption of an advisory guidelines sentencing
range of 135-168 months, the probation officer’s presentence report
calculated the range at 168-210 months owing to what the Government
here agrees was the erroneous assumption that the sentencing range
was subject to enhancement by application of United States
Sentencing Guideline § 2G2.1(b)(6)(B)(ii), referring to use of a
computer to “solicit participation with a minor in sexually
explicit conduct for the purpose of producing sexually explicit
material or for the purpose of transmitting such material live.”
The Government accepts the defendant’s position that this provision
applies only to communications with third parties, not with a
victim, see United States v. Jass, 569 F.3d 47, 66-68 (2d Cir.
2009), a position that we have no occasion to pass upon. Defense
counsel did not, however, file any objection to the report on this
point, and at the sentencing hearing the District Court accepted
the range as calculated by the probation officer. The judge went
on to explain that he was varying downward from that range, by
imposing a 145 month sentence for the sexual conduct, based on the
sentencing considerations listed in 18 U.S.C. § 3553(a), along with
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a concurrent 120 months on the possession charge. When defense
counsel then sought reconsideration and questioned the
applicability of the Guidelines subsection (ii) for computer use,
the judge responded that he had not applied that provision when he
imposed the sentence below the 168-210 month range.
Despite the judge’s variance from the higher Guidelines
range, in this appeal from the sentence Roman-Portalatin argues
that the erroneous range enhancement calculation affected him
prejudicially on one or the other of two theories: either that the
judge decided on a figure to subtract from the low end of the
Guidelines range, leaving a higher result after doing the math; or
that the judge engaged in a soft-edged numerical comparison, with
the agreed upon 135 months looking just too low as measured against
a range starting at 168.
The Government responds that this reasoning is
irrelevant, given the announced reliance on § 3553(a), not the
Guidelines. In the alternative it points out that the defendant
could not have been prejudiced by the error, on the assumption
there was one. Section 2G2.1(b)(6)(B)(i) provides the same
sentence enhancement for using a computer to induce the victim to
engage in sexually explicit conduct with intent to produce related
material or transmit it live, as (ii) provides when the
communication is with a third party, and the plea agreement makes
it clear that Roman-Portalatin employed his computer to induce the
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victim to submit to what is conventionally called statutory rape
“and to send images of herself naked and touching herself via the
web cam.”
We need not go into the former response, for the latter
is dispositive under each of the defendant’s alternative analyses
of what happened: that his counsel preserved the objection to
applying § 2G2.1(b)(6)(B)(ii), that counsel failed to preserve it
but plain error affected the sentence, or that counsel’s deficiency
at preserving the error amounted to constitutionally ineffective
assistance entitling him to resentencing. Prejudice is ordinarily
a necessary condition for any order for resentencing, no matter how
we view the record, and the defendant loses no matter which
standard of error correction we might apply.
If we assume that the claim was preserved, the sentence
still stands if the Government can show that the error was
harmless. See, e.g., United States v. McGhee, 651 F.3d 153, 158
(1st Cir. 2011) (“[O]nce the court of appeals has decided that the
district court misapplied the Guidelines, a remand is appropriate
unless the reviewing court concludes, on the record as a whole,
that the error was harmless, i.e., that the error did not affect
the district court’s selection of the sentence imposed.”
(alteration in original) (quoting Williams v. United States, 503
U.S. 193, 203 (1992))).
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Here, the Government’s burden is clearly satisfied: the
defendant signed the “Government’s Version of the Facts” in the
plea agreement, stating that he “did use . . . a computer . . . to
knowingly . . . induce . . . a fifteen year-old female to engage in
sexual activity with him and to send via the web cam images of
herself in sexually explicit poses.” The consideration of computer
use to set the higher sentencing range as calculated in the
presentence report was therefore undoubtedly correct, and the
mistaken subsection citation does not rise above the level of
typographical mistake.
If, instead, we assume the claim was not preserved by
adequate objection at the hearing, the defendant’s burden to obtain
relief under the plain error standard includes a showing that the
error affected his substantial rights, that is, that there is a
reasonable probability that the judge would have imposed the
sentence agreed upon (or at least one less than 145 months), absent
the error, see United States v. González-Castillo, 562 F.3d 80, 83
(1st Cir. 2009). For the reason just explained, he cannot do that,
no matter what significance (if any) the consideration of computer
use might have played in the sentencing judge’s mental process.
And, quite obviously, the same reason dooms the claim of
constitutionally ineffective assistance of counsel, which requires
a defendant to show “a reasonable probability that, but for
counsel’s ... errors, the result of the proceeding would have been
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different.” Strickland v. Washington, 466 U.S. 688, 694 (1984).
The most that counsel might have done here would have resulted in
substituting “(i)” for “(ii)” in a corrected presentence report.
Affirmed.
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