United States v. Ruiz-Huertas , 792 F.3d 223 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1038
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRÉS RUIZ-HUERTAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Kayatta, Selya and Barron,
Circuit Judges.
Luis A. Guzmán Dupont on brief for appellant.
Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and John A. Mathews II, Assistant United States Attorney,
on brief for appellee.
July 7, 2015
SELYA, Circuit Judge. In this sentencing appeal,
defendant-appellant Andrés Ruiz-Huertas complains that his 50-year
sentence is both procedurally and substantively unreasonable.
After careful consideration, we affirm the challenged sentence.
This appeal arises out of an indictment returned by a
federal grand jury sitting in the District of Puerto Rico, which
charged the defendant, inter alia, with five counts of unlawful
production of child pornography.1 See 18 U.S.C. § 2251(a). Each
count involved a different victim.
Before trial, the defendant entered into a non-binding
plea agreement with the government (the Agreement). See Fed. R.
Crim. P. 11(c)(1)(A)-(B). The Agreement obligated the government
to recommend an aggregate term of immurement of 35 years,
regardless of what the court determined the defendant's criminal
history category (CHC) to be. It left the defendant free to argue
for concurrent sentences of 15 years (the statutory mandatory
minimum sentence on each count, see 18 U.S.C. § 2251(e)). The
district court accepted the plea, and the probation department
compiled a presentence investigation report (PSI Report). When
received, the PSI Report adumbrated a series of guideline
1 The indictment included five other counts, detailing
additional crimes. These charges were eventually dismissed, and
we do not discuss them further.
calculations, culminating in a total offense level of 43, a CHC of
I, and a guideline sentence of life imprisonment.
At the disposition hearing, the government stuck to its
bargain and recommended an aggregate of 35 years' imprisonment.
The district court then heard from both defense counsel and the
defendant. Without objection, the court adopted the guideline
calculations recommended in the PSI Report. The court proceeded
to acknowledge the defendant's age (60), strong family ties, health
problems, and unblemished criminal history. After stating that it
had considered the factors enumerated in 18 U.S.C. § 3553(a), the
Agreement, defense counsel's statements, and the defendant's
allocution, the court declared that it would impose an aggregate
50-year term of imprisonment. To accomplish this goal, the court
sentenced the defendant to concurrent 30-year terms on three of
the counts of conviction and concurrent 20-year terms on the other
two counts, to be served consecutively to the three concurrent 30-
year sentences. This timely appeal ensued.2
In sentencing appeals, appellate review is bifurcated.
See United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
2 Although the Agreement included a waiver-of-appeal
provision, that provision took effect only if the defendant was
sentenced according to the Agreement's "terms, conditions and
recommendations." Because the court did not adhere to these
recommendations, the waiver-of-appeal provision does not pretermit
this appeal. See United States v. Fernández-Cabrera, 625 F.3d 48,
51 (1st Cir. 2010).
"[W]e first determine whether the sentence imposed is procedurally
reasonable and then determine whether it is substantively
reasonable." Id.; see Gall v. United States, 552 U.S. 38, 51
(2007). When mulling the procedural reasonableness of a sentence,
we afford de novo review to the sentencing court's interpretation
and application of the sentencing guidelines, assay the court's
factfinding for clear error, and evaluate its judgment calls for
abuse of discretion. See United States v. Flores-Machicote, 706
F.3d 16, 20 (1st Cir. 2013). With respect to the substantive
reasonableness of a sentence, we proceed under the abuse of
discretion rubric, taking account of the totality of the
circumstances. See Gall, 552 U.S. at 51; United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008).
These standards of review may be altered where a party
fails to preserve claims of error in the court below. In that
event, review is for plain error. See United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001). To prevail under this daunting
standard, the defendant must establish "(1) that an error occurred
(2) which was clear or obvious and which not only (3) affected
[his] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." Id.With these benchmarks in place, we turn to the
defendant's specific claims of error. We start with the
defendant's contention that the sentencing court failed to
consider all the factors limned in 18 U.S.C. § 3553(a), especially
the defendant's age, family ties, poor health, and lack of criminal
record. Since this contention was not advanced below, review is
for plain error.
We have held that even though a district court is obliged
to "consider all relevant section 3553(a) factors, it need not do
so mechanically." Clogston, 662 F.3d at 592 (internal quotation
marks omitted). That is, a district court "is not required to
address those factors, one by one, in some sort of rote incantation
when explicating its sentencing decision." United States v. Dixon,
449 F.3d 194, 205 (1st Cir. 2006). When — as in this case — the
district court explicitly states that it has considered the section
3553(a) factors, "[s]uch a statement is entitled to some weight."
Clogston, 662 F.3d at 592 (internal quotation marks omitted).
These authorities are controlling here. Given that the
potentially mitigating factors emphasized by the defendant were
vehemently argued by his counsel and specifically acknowledged by
the court immediately before it imposed the sentence, we discern
no error, plain or otherwise, in this regard. Here, as in Flores-
Machicote, 706 F.3d at 23, the defendant's real complaint is not
that the court failed to consider the section 3553(a) factors, but
that the court did not assign the weight to certain factors that
the defendant thought appropriate.
The defendant's next claim of error suggests that the
court disregarded its statutory duty to explicate its sentencing
rationale. See 18 U.S.C. § 3553(c). Because this plaint was not
voiced below, review is for plain error.
In pertinent part, 18 U.S.C. § 3553(c) provides that
"[t]he court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence." The
fact that a sentence is consistent with the guideline sentencing
range (properly calculated) correlates to some extent with the
"requisite degree of explanation: a within-the-range sentence
usually demands a less detailed explanation than a variant
sentence." United States v. Ocasio-Cancel, 727 F.3d 85, 91 (1st
Cir. 2013).
In the case at hand, the guideline sentence was life
imprisonment. The court imposed an aggregate incarcerative term
of 50 years. In crafting what was effectively a life sentence for
the 60-year-old defendant, the court imposed consecutive sentences
to the extent necessary to achieve what it regarded as an
appropriate sentencing outcome. See USSG §5G1.2, comment. (n.1).
Thus, the requirement for an explanation was less stringent than
if the court had imposed a variant sentence.3
3The defendant also claims that the court violated 18 U.S.C.
§ 3553(c)(2). That provision is inapposite because the sentence
here is a guideline sentence, not a variant sentence.
To be sure, the district court provided virtually no
explanation for its choice of the particular sentence. It is
settled law, though, that the failure adequately to explain a
sentence, in and of itself, is not plain error. See United States
v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012). More is
needed: the defendant must show "a reasonable probability that,
but for the error, the district court would have imposed a
different, more favorable sentence." Id. (internal quotation mark
omitted). No such showing has been proffered here.
Where an explanation for a sentence is lacking, "a
court's reasoning can often be inferred by comparing what was
argued by the parties or contained in the [PSI] report with what
the judge did." United States v. Jiménez-Beltre, 440 F.3d 514,
519 (1st Cir. 2006) (en banc). In this instance, the PSI report
(to which neither side objected) provides a comprehensive view of
the tawdry facts of this case. The defendant engaged in sexually
explicit conduct with girls from nine to sixteen years of age.
One of those victims suffered from a mental disability. The
encounters involved bathing, touching, oral sex, and vaginal
penetration — and the defendant surreptitiously video-recorded all
of them. These offenses resulted in mental health issues on the
part of some victims, and one victim contracted a sexually
transmitted disease. To make a bad situation worse, the defendant
complained during his allocution that the victims "pushed [him] to
it" and "put it on a silver platter to [him]." Considering the
abhorrent nature of the defendant's conduct and his palpable lack
of contrition, it is easy to infer the district court's sentencing
rationale. On plain error review, no more is exigible. See
Medina-Villegas, 700 F.3d at 583-84.
Let us be perfectly clear. Transparency is an important
virtue in the sentencing realm, and we do not lightly countenance
a district court's failure to provide a coherent explanation of
its sentencing rationale as required by 18 U.S.C. § 3553(c). By
the same token, however, we do not lightly countenance a
defendant's failure to make a timely objection and bring such an
oversight to the attention of the district court. A failure to
object limits appellate review to plain error and, under this
daunting standard, the record affords no basis for vacating the
sentence imposed. See id.The defendant's last claim of procedural error, perhaps
subsumed in his "no explanation" claim, is that the district court
erred by failing to articulate its reasons for deviating from the
range of sentencing options discussed in the Agreement. This claim
lacks force: while a district court may have a duty adequately to
explain its choice of a particular sentence, it has no "corollary
duty to explain why it eschewed other suggested sentences." United
States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014). Thus,
the court below had no obligation to explain its rejection of the
sentencing options advocated by the parties.
This brings us to the defendant's challenge to the
substantive reasonableness of his sentence. He argues that his
sentence is substantively unreasonable because it is greater than
necessary to comply with the purposes of sentencing set forth in
18 U.S.C. § 3553(a)(2).
The applicable standard of review is somewhat blurred.
Of the seven circuits that have examined the issue, six have found
that an objection in the district court is not required to preserve
a claim that the duration of a sentence is substantively
unreasonable. See United States v. Autery, 555 F.3d 864, 871 (9th
Cir. 2009); United States v. Vonner, 516 F.3d 382, 389 (6th Cir.
2008) (en banc); United States v. Wiley, 509 F.3d 474, 476-77 (8th
Cir. 2007); United States v. Bras, 483 F.3d 103, 113 (D.C. Cir.
2007); United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th
Cir. 2006); United States v. Castro-Juarez, 425 F.3d 430, 433-34
(7th Cir. 2005). But see United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). This court, however, has held, albeit
without analysis, that a failure to interpose an objection in the
district court to the substantive reasonableness of a sentence
begets plain error review.4
4The more recent of the two First Circuit cases, United
States v. Castro-Caicedo, 775 F.3d 93, 103 (1st Cir. 2014), cert.
We need not resolve this apparent anomaly today.
Assuming, favorably to the defendant, that the abuse of discretion
standard applies, the outcome would be the same. Accordingly, we
proceed under that rubric, taking into account the totality of the
circumstances. See Gall, 552 U.S. at 51; Martin, 520 F.3d at 92.
A sentence is substantively reasonable so long as it
rests on a "plausible sentencing rationale" and embodies a
"defensible result." Martin, 520 F.3d at 96. A challenge directed
at substantive reasonableness is usually a heavy lift, and reversal
is "particularly unlikely when . . . the sentence imposed fits
within the compass of a properly calculated [guideline sentencing
range]." Vega-Salgado, 769 F.3d at 105.
This is such a case. The aggregate sentence imposed is
consistent with the guideline sentence of life imprisonment.
Moreover, the sentencing court was careful to structure the overall
sentence to fit within the statutory maximum of 30 years per count.
See 18 U.S.C. § 2251(e). "In most cases, there is not a single
appropriate sentence but, rather, a universe of reasonable
sentences." United States v. Rivera-González, 776 F.3d 45, 52
(1st Cir. 2015). Giving due regard to the especially heinous
denied, 135 S. Ct. 1884 (2015), merely cites to the earlier case,
United States v. Tavares, 705 F.3d 4, 33 (1st Cir. 2013). In
Tavares, the sole authority cited for the proposition is United
States v. Matos-Quiñones, 456 F.3d 14, 20-21 (1st Cir. 2006) ─ a
precedent that has nothing to do with a claim that a sentence is
substantively unreasonable.
nature of the offenses of conviction, the victims' tender ages,
and the defendant's begrudging expression of remorse, it is evident
that the aggregate sentence imposed here falls within the wide
universe of reasonable sentencing outcomes.
We need go no further. For the reasons elucidated above,
the sentence is
Affirmed.