United States v. Arsenault , 833 F.3d 24 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1161
UNITED STATES OF AMERICA,
Appellee,
v.
PATRIK IAN ARSENAULT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Jonathan G. Mermin and Preti, Flaherty, Beliveau & Pachios,
LLP for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
Appellate Chief, and Thomas E. Delahanty II, United States
Attorney, on brief, for appellee.
August 10, 2016
THOMPSON, Circuit Judge. Appellant Patrik Ian
Arsenault, a school aide for special-needs students, pled guilty
to sexually exploiting three minors, as well as transporting,
receiving, and possessing child pornography. In his appeal,
Arsenault challenges the 780-month (or 65-year) sentence given to
him as unreasonable. After careful consideration, we find
Arsenault's arguments without merit and, accordingly, affirm the
sentencing determination of the court below.
BACKGROUND
A. Investigation and Underlying Offense
In the summer of 2013, law enforcement agents began an
investigation of Arsenault after confirming child pornography had
been uploaded to an image-sharing website from his home.1 Federal
agents then executed a search warrant at Arsenault's residence in
Norridgewock, Maine where they sought computer related items in
furtherance of the ongoing investigation. After the agents told
Arsenault that he was not under arrest and not obligated to answer
questions, he chose to talk anyway. Eventually, Arsenault made
several rather damning admissions that he had been trading child
pornography over the Internet for about a year, had sexually abused
1As this sentencing appeal follows a guilty plea, "we glean
the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report
[("PSI")], and the record of the disposition hearing." United
States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
- 2 -
two minors, had video recorded and photographed some of his
encounters with the children, and had stored images and videos of
his sexual acts with them on an external hard drive in his home.
At the conclusion of the search, Arsenault was arrested and charged
with gross sexual assault in state court and, the following day,
was charged by way of complaint in federal district court.
A subsequent forensic review of Arsenault's hard drive
revealed sexually explicit images of Arsenault with a third minor
and also uncovered more than 7,500 images and more than 250 videos
depicting prepubescent male children engaged in sexual acts with
other children and/or adults. It was also learned that at least
two of Arsenault's three victims were special-needs children under
the age of twelve, whom Arsenault had been introduced to through
his job as an aide for autistic children. On varying occasions,
these two victims had been entrusted into Arsenault's overnight
care, during which time he drugged and sexually abused them.
Arsenault was eventually indicted for the sexual
exploitation of the three minors, as well as the transportation,
receipt, and possession of child pornography. On July 8, 2014,
Arsenault pled guilty to all six counts of the indictment: the
sexual exploitation of the three minors in violation of 18 U.S.C.
§§ 2251(a) and 2251(e) (Counts I-III); and the transportation,
receipt, and possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(1), 2252A(a)(2), 2252A(a)(5)(B) and 2256(8)(A)
- 3 -
(Counts IV-VI). Probation filed a presentence investigation
report ("PSI") on August 26, 2014. Arsenault failed to file any
written objections to that report.
B. Sentencing Hearing
During his sentencing hearing, Arsenault again voiced no
objections to the PSI, except for a request that the PSI clarify
that the three minor victims were not actually his students. Nor
did he raise any legal challenges to the recommended Sentencing
Guidelines (the "Guidelines") enhancements. The judge proceeded
with his sentencing task. After hearing from the families of the
victims and noting that he had reviewed the PSI, victim-impact
statements, and support letters submitted on Arsenault's behalf,
the judge calculated the appropriate Guidelines range. Finding a
total offense level -- after all enhancements had been tallied
(more on these enhancements later) -- of 43 and a criminal history
category of I, the judge found the applicable Guidelines range to
be life imprisonment.
However, the life sentence recommended by the Guidelines
was higher than the statutorily authorized maximum sentences.
Under the relevant statutes, the maximum statutory sentence for
Counts I-III was 30 years each, the maximum statutory sentence for
Counts IV and V was 20 years each, and the maximum statutory
sentence for Count VI was 10 years. The judge therefore found the
applicable range to be the statutory maximum of 1,680 months, or
- 4 -
140 years. See U.S. Sentencing Guidelines Manual § 5G1.1 (U.S.
Sentencing Comm'n 2015). After explaining his calculations, the
judge again specifically asked Arsenault if he had any objections
to these findings and calculations. Counsel for Arsenault
responded that he had "no objection."
Before imposing a sentence, the judge went on to discuss
his sentencing rationale in detail. He explicitly stated that he
had taken into consideration "each of the factors set forth in 18
U.S.C. Section 3553(a), including the obligation to impose a
sentence that is sufficient, but no greater than necessary to
achieve the purposes of the law" -- a concept known as the
parsimony principle. The judge explained that while he had
considered "each statutory factor," he had concentrated on the
"history and characteristics of the defendant, the nature and
circumstances of the offense, and the need to protect the public
from future crimes of the defendant." After detailing his
reasoning, the judge imposed a below-Guidelines sentence of 780
months, or 65 years. Arsenault timely appealed.
DISCUSSION
A review for the reasonableness of a sentence is
bifurcated, requiring us to ensure that the sentence is both
procedurally and substantively reasonable. See United States v.
Mendez, 802 F.3d 93, 97 (1st Cir. 2015). We ordinarily review
both procedural and substantive reasonableness under a deferential
- 5 -
abuse-of-discretion standard. United States v. Maisonet-Gonzalez,
785 F.3d 757, 762 (1st Cir. 2015), cert. denied sub nom. Maisonet
v. United States, 136 S. Ct. 263 (2015). However, when assessing
procedural reasonableness, this Court engages in a multifaceted
abuse-of-discretion standard whereby "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."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st. Cir. 2015).
If a party fails to preserve claims of error in the court below,
these standards of review may be altered. Id. In such instances,
review is for plain error. Id.
Arsenault appears to raise three arguments on appeal:
(1) that the judge erred in applying numerous enhancements in his
Guidelines calculation; (2) that the judge failed to adequately
consider or explain how the 65-year sentence imposed did not
violate the parsimony principle; and (3) that the 65-year sentence
did in fact violate the parsimony principle.
The first and second appear to be unpreserved,
procedural reasonableness challenges. See United States v.
Nelson, 793 F.3d 202, 205-06 (1st. Cir. 2015) (noting that
procedural errors may include "failing to calculate (or improperly
calculating) the Guidelines range," "failing to adequately explain
the chosen sentence," and "failing to consider the 18 U.S.C.
- 6 -
§ 3553(a) factors"); accord United States v. Stone, 575 F.3d 83,
89 (1st Cir. 2009). Given Arsenault's failure to object, we review
his procedural challenges for plain error.2 See Ruiz-Huertas, 792
F.3d at 226. Under this stiff standard, Arsenault 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.
Arsenault's third challenge goes to the substantive
reasonableness of his sentence. See United States v. Carrasco-
De-Jesus, 589 F.3d 22, 29 (1st Cir. 2009) (discussing defendant's
substantive reasonableness challenge for violation of the
parsimony principle). As we have previously noted, the applicable
standard of review for an unpreserved, substantive reasonableness
challenge is "murky." United States v. Perez, No. 15-1234, 2016
WL 1612854, at *4 (1st Cir. Apr. 22, 2016) (citing Ruiz-Huertas,
792 F.3d at 228 (noting that it is unclear whether a substantive
reasonableness claim must be preserved below to be afforded abuse-
of-discretion review versus a tougher plain error review)). Here,
2 The government argues that Arsenault may have waived any
dispute regarding the Guidelines computations by repeatedly
failing to object. See generally United States v. Sweeney, 606 F.
App'x 588, 591 (1st Cir. 2015)(holding that "a waived issue
ordinarily cannot be resurrected on appeal, whereas a forfeited
issue may be reviewed for plain error"). But we assume favorably
to Arsenault that he forfeited these claims and thus review for
plain error.
- 7 -
however, it is not necessary to resolve this apparent incongruity.
Arsenault's claim fails, even if we assume that the more favorable
abuse-of-discretion standard applies to his substantive
reasonableness claim.
We begin our review with Arsenault's procedural
challenges.
A. Procedural Reasonableness
1. Guidelines Enhancements
Arsenault complains about the enhancements which upped
his Guidelines range. Indeed, "failing to calculate (or improperly
calculating) the Guidelines range" constitutes a procedural error.
Nelson, 793 F.3d at 205. But Arsenault cannot demonstrate that an
error occurred, let alone that the purported error was clear or
obvious.
Here is what the sentencing judge did. First, he
appropriately set the applicable base offense levels. Counts I-
III were each subject to a base offense level of 32. See USSG
§ 2G2.1(a). Counts IV-VI together were subject to a group base
offense level of 22. See id. at § 2G2.2(a)(2). The judge then
applied various enhancements based on different aspects of each
offense.3 This resulted in an adjusted offense level of 50 for
3 Pursuant to several subsections of USSG §§ 2G2.1(b) and
3A1.1(b)(1), enhancements were applied to Counts I-II because the
offenses involved: (1) the commission of a sexual act by force or
other means upon (2) vulnerable, (3) minors under twelve, (4) who
- 8 -
Counts I and II, an adjusted offense level of 40 for Count III,
and an adjusted offense level of 45 for grouped Counts IV through
VI. Next, the judge calculated the combined offense level, which
resulted in a total combined offense level of 55.
The total combined offense level was properly calculated
by taking the highest adjusted offense level (50), adding 3 levels
pursuant to USSG § 3D1.4 for the combined offenses, adding 5 levels
pursuant to USSG § 4B1.5(b)(1) because Arsenault committed a sex
crime and was not a career offender, and subtracting 3 levels for
acceptance of responsibility. This total combined offense level
was ultimately reduced to 43 pursuant to USSG ch.5, pt. A, cmt.
n.2 ("An offense level of more than 43 is to be treated as an
offense level of 43").
With a total combined offense level of 43 and a criminal
history category of I, Arsenault faced a recommended Guidelines
range of life imprisonment. As mentioned before, because the life
were under Arsenault's care, and (5) the distribution of (6)
material that portrayed sadistic or masochistic conduct. Pursuant
to several subsections of USSG § 2G2.1 enhancements were also
applied to Count III because the offense involved: (1) a minor
under twelve, (2) who was under Arsenault's care, and (3) the
distribution of child pornography. Pursuant to several
subsections of USSG § 2G2.2, enhancements were applied to Counts
IV-VI because the offenses involved: (1) minors under twelve, (2)
a pattern of activity involving the sexual abuse or exploitation
of minors, (3) the distribution for receipt of something of value
for (4) material that portrayed sadistic or masochistic conduct,
(5) through the use of a computer, and (6) over 600 images of child
pornography.
- 9 -
sentence was higher than the statutorily authorized maximum
sentence for each offense, the final applicable range was 1,680
months, or 140 years, pursuant to USSG § 5G1.1. The judge
ultimately sentenced Arsenault to a below-Guidelines sentence of
780 months, or 65 years.
On appeal, Arsenault takes issue with a couple of aspects
of the judge's calculations. However, none of his arguments carry
the day.
First, Arsenault specifically challenges the following
enhancements: (1) the two-level enhancement because the victims
were in his custody, care or supervisory control (Counts I-III);
(2) the two-level enhancement for committing a sex act by use of
either force, threats or drugs, an intoxicant, or other similar
substance without the persons' knowledge (Counts I and II);4 (3)
the two-level enhancement for distribution of pornography (Counts
4 Arsenault briefly argues that this two-level enhancement
pursuant to 18 U.S.C. § 2241 was improperly based on his use of
force in the commission of the offenses and should be rejected as
"duplicative or redundant." The PSI recommended a two-level
enhancement for the use of either force or threats pursuant to §
2241(a) or by some other means (such as drugs or an intoxicant)
pursuant to § 2241(b) in the commission of a sexual act. 18 U.S.C.
§§ 2241(a) and (b). It is unclear which of the two subsections
was ultimately relied upon by the judge. However, Arsenault's
argument fails because if the two-level enhancement was based on
his use of force pursuant to 18 U.S.C. § 2241(a), Arsenault's
duplicative arguments fail for the reasons discussed below
regarding double counting. And if the two-level enhancement was
based on his use of drugs to render his victims unconscious, there
is no dispute that he in fact drugged his victims. See id. at §
2241(b).
- 10 -
I-III); (4) the two-level enhancement for use of a computer (Counts
IV-VI); and (5) the five-level enhancement for 600 or more images
(Counts IV-VI).
Arsenault does not argue that the sentencing judge
failed to recognize the advisory nature of the Guidelines or his
broad discretion to impose a non-Guidelines sentence. See
Kimbrough v. United States, 552 U.S. 85 (2007) (holding that
sentencing judges can vary from Guidelines ranges based on policy
considerations, including disagreements with the Guidelines).
Rather, Arsenault contends that these enhancements simply do not
"make sense" or they punish him for "inherent" and "standard"
features of child pornography, which, he suggests, are already
factored into the base offense level. Generously construed, his
arguments boil down to an assertion that the child pornography
Guidelines are just bad policy and, as such, the sentencing judge
erred in applying them when calculating his sentencing range. We
disagree. As we have explained, a sentencing judge is free to
agree with the Guidelines, even if a defendant finds them to be
bad policy. Stone, 575 F.3d at 93 (noting that "part of the
sentencing court's broad discretion must be the discretion to
conclude that guidelines are convincing for various reasons,
including that they reflect popular will.").
Further, it is clear from the record that the sentencing
judge simply declined to accept Arsenault's argument that he should
- 11 -
diverge from the Guidelines recommendation because of the
harshness stemming from the enhancements. Although the result is
severe, we have typically upheld enhancements that capture
independent aspects of wrongfulness of an offense even when they
result in a high Guidelines range. See id. at 96. Thus, the mere
fact that these enhancements either resulted in a high Guidelines
range or involved features common to child pornography does not
result in a procedural error. Clearly Arsenault comes up short of
showing plain error here.
With regard to his second complaint, Arsenault
challenges application of the following enhancements: (1) the
four-level enhancement for sadistic or masochistic conduct (Counts
I-II); (2) the five and three-level enhancements applied in
calculating his combined offense level; and (3) the two-level
enhancement because Arsenault knew or should have known that the
victims were vulnerable (Counts I-II). Arsenault argues that these
enhancements are "duplicative" (in other words, they result in
double counting).
We have held that where "neither an explicit prohibition
against double counting nor a compelling basis for implying such
a prohibition exists, clearly indicated adjustments for
seriousness of the offense and for offender conduct can both be
imposed, notwithstanding that the adjustments derive in some
measure from a common nucleus of operative facts." United States
- 12 -
v. Reyes-Rivera, 812 F.3d 79, 88 (1st Cir. 2016) (quoting United
States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)). As for the
contested enhancements, we are doubtful that they constitute
double counting at all. But even if we assume that they do,
Arsenault's claims still fail. Here, commentary to the
enhancements for sadistic or masochistic conduct and for the
calculation of the combined offense level (USSG §§ 2G2.1, 2G2.2,
3D1.4, and 4B1.5) do not provide a double-counting prohibition.
And while USSG § 3A1.1 n.2 does prohibit application of the
vulnerability enhancement "if the factor that makes the person a
vulnerable victim [i.e., young age] is incorporated in the offense
guideline," an exception exists to this partial bar where "the
victim was unusually vulnerable for reasons unrelated to age."
Given the special-needs status of two of Arsenault's victims, the
application of the vulnerability enhancement here is permissible.
On these points, Arsenault proffers no pertinent case law in
support of his contrary position, and gives us no compelling basis
for interference with the Guidelines directives. Once again he
has not met his burden under the plain error standard.
2. Sentencing Explanation
Arsenault complains that the judge failed to adequately
explain why a 65-year sentence, imposed on a defendant who is now
in his twenties, does not violate the parsimony principle when
considered with other § 3553(a) factors, such as deterrence and
- 13 -
public safety. Arsenault insists that the judge should have
spelled out why a "shorter-but-still-draconian sentence of (say)
30 or 40 years," in which he would be well into his 50s or 60s at
release, would not be greater than necessary to achieve the
legitimate goals of sentencing. Arsenault points us to a Seventh
Circuit case, United States v. Presley, 790 F.3d 699, 702 (7th
Cir. 2015) (Posner, J.), which discusses at length the "downside
of long sentences" and the problems of elderly prisoner
populations. In Presley, the court, sua sponte, questioned the
appropriateness of lengthy sentences which fail to adequately
factor in "the traditional triad of sentencing considerations:
incapacitation, which prevents the defendant from committing
crimes (at least crimes against persons other than prison personnel
and other prisoners) until he is released, general deterrence (the
effect of the sentence in deterring other persons from committing
crimes), and specific deterrence (its effect in deterring the
defendant from committing crimes after he's released)." Id. at
703. In sentencing matters it urged district judges to consider
the predicted age of a defendant upon release noting "the
phenomenon of aging out of risky occupations" including risky
criminal behavior. Id. at 702.
Because the district judge did not specifically address
the concerns raised by the Presley court, Arsenault argues that
the judge failed to consider all the relevant § 3553(a) factors
- 14 -
thereby committing procedural error. While we certainly agree
that it would have been appropriate for the district judge -- had
he chosen to do so -- to have been mindful of the Seventh Circuit's
admonition that elderly prisoner issues "should be part of the
knowledge base that judges, lawyers, and probation officers
consult in deciding on the length of sentences to recommend or
impose," id., we cannot conclude that the judge here plainly erred
by not expressly considering these concerns.
What Arsenault's argument actually amounts to is
faulting the judge for "not assign[ing] the weight to certain
factors that [he] thought appropriate" and not taking into account
specific considerations -- such as the elderly-prisoner problem
-- which he finds relevant. Ruiz-Huertas, 792 F.3d at 227.
Nevertheless, as we have said before, a judge has no obligation to
assign weight to certain factors or considerations as a defendant
deems necessary. See United States v. Rossignol, 780 F.3d 475,
479 (1st Cir. 2015) ("That the [appellant] would prefer an
alternative weighing of the circumstances does not undermine the
district court's sentencing decision."); see also United States v.
Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010) (concluding that
the district judge's silence about a sentencing angle advocated by
a party did not undercut the sentencing decision where the record
"evinc[ed] a sufficient weighing of the section 3553(a) factors").
- 15 -
Nor can we conclude, as Arsenault urges, that the
district judge plainly erred in not giving voice to his distinct
concerns. 18 U.S.C. § 3553(c) requires a sentencing judge to state
in open court the reasons for his imposition of a particular
sentence. However, as we have repeatedly held, although a district
judge has a duty to adequately explain his choice of a particular
sentence, "[he] has no corollary duty to explain why [he] eschewed
other suggested sentences." Ruiz-Huertas, 792 F.3d at 228 (quoting
United States v. Vega–Salgado, 769 F.3d 100, 104 (1st Cir. 2014)).
Moreover, the judge is not required to explain his
consideration of § 3553(a) factors in some sort of "rote
incantation," and "where, [as here], the district judge explicitly
states that [he] has considered the section 3553(a) factors, such
a statement is entitled to some weight." Id. at 226-27.
The record makes clear that the district judge explained
his sentencing rationale in detail, explicitly noting his
mindfulness of § 3553(a) considerations. Specifically, the judge
focused on Arsenault's personal history and characteristics, the
nature and circumstances of the offense, and the need to protect
the public from future crimes by Arsenault.
With regard to Arsenault's personal history, the judge
considered Arsenault's upbringing; the fact that he was sexually
abused as a child; his extensive substance abuse history; and his
education and work experiences, noting that Arsenault had a "long
- 16 -
history of working with children" since he was 15. The judge
further emphasized that despite knowing his compulsion and sexual
attraction to young boys, Arsenault chose to work in a profession
that would put him in regular one-on-one contact with such
children.
With regard to the nature of the offense, the district
judge discussed the seriousness of the offense and the need to
provide just punishment, and pointed out a series of aggravating
factors including the exceptional vulnerability of the direct
victims, the effects on the parents as a second class of victim,
and society as a whole as a third class of victim. The judge
remarked that over the course of his last 11 years on the bench,
Arsenault's case "may well be the worst [child pornography case he
had] ever seen." The judge discussed the inculpating evidence
found on Arsenault's hard drive including videos showing Arsenault
having sex with two unresponsive, special-needs boys who had been
entrusted to him for overnight care. The judge highlighted that
Arsenault "selected out and chose these especially vulnerable boys
as his victims"; that two of his victims were autistic; and that
one victim was nonverbal, "which effectively meant he couldn't
complain effectively" concerning the abuse inflicted upon him.
The judge also underscored that not only did Arsenault drug,
assault, and film his abuse of the children, he went on to trade
- 17 -
the content he produced over the Internet, via a forum where the
material can never be erased and cannot be undone.
The judge took into consideration the egregious and
callous tone with which Arsenault described his actions. For
example, the judge focused on Arsenault's own, cold descriptions
of his abuse in which he described how "one of the victims, he
seems to get uncomfortable. He started to squirm, and he started
requesting all done." Despite the child's requests, Arsenault
continued to callously describe how he would "have to give [his
victims] their sleep medications earlier" and how it was "all [he
could] think about." To make matters worse, Arsenault invited a
trading partner via email to come abuse the children together with
him stating "ha, ha, ha, well I tried a few different positions,
although it would have been better if [the child] was more sedated"
and "you really should come and join us next time."
With regard to public protection, the judge noted that
Arsenault's actions "erode[d] the confidence that we [as a society]
have in each other" and that Arsenault's actions bred a lack of
public trust concerning well-meaning male teachers entrusted to
care for children. The court noted that "when someone like
[Arsenault] . . . cloak[s] himself in [the] great profession of [a
teacher or aide] and then abuses the trust that comes with the
profession, it casts an awful and unfair pall on the entire
profession, particularly the men." The judge thus found that it
- 18 -
was necessary for Arsenault to "be placed away from contact with
young boys for a long, long time so [he would] do no more harm."
This thorough and detailed explanation was more than
sufficient to satisfy the requirements of § 3553(c). The bottom
line is that Arsenault has failed to demonstrate that the judge
committed an error -- let alone a clear or obvious error that
affected his substantial rights and seriously impaired the
fairness, integrity, or public reputation of judicial proceedings.
Ruiz-Huertas, 792 F.3d at 226. And having found no procedural
defect amounting to plain error, we now review Arsenault's
substantive reasonableness challenge.5
B. Substantive Reasonableness
To the extent Arsenault argues that his sentence is
ultimately greater than necessary and therefore substantively
unreasonable because of the elderly-prisoner problem, this
argument mirrors his arguments already discussed above that his
5 Arsenault also appears to accuse the judge of not taking
into account § 3553(a)(6), which requires judges to "consider
. . . the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct." 18 U.S.C. § 3553(a)(6). Arsenault suggests
that his sentence should be lessened because it is longer than
those of defendant priests sentenced in unrelated sexual abuse
cases. His argument fails because he proffers no evidence that
the priests cited were in fact identically situated to him. See
United States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (18
U.S.C. § 3553(a)(6) raises concerns only "if two identically
situated defendants received different sentences from the same
judge.").
- 19 -
sentence violated the parsimony principle because the sentencing
judge did not take into account the effects of his old age upon
release in his consideration of deterrence, recidivism, and public
safety factors. These corresponding substantive reasonableness
arguments are equally unavailing.
A sentence is substantively sound and "will survive a
challenge to its substantive reasonableness as long as it rests on
a 'plausible sentencing rationale' and reflects a 'defensible
result.'" Perez, 2016 WL 1612854, at *4 (citing United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008)). Additionally, "reversals
in substantive reasonableness challenges are particularly unlikely
when . . . the sentence imposed fits within the compass of a
properly calculated [Guidelines sentencing range]." United States
v. Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015), cert.
denied, 136 S. Ct. 522, 193 L. Ed. 2d 411 (2015) (alterations in
original) (quoting Ruiz-Huertas, 792 F.3d at 228-29). "When the
challenged sentence falls within the recommended Guidelines range,
the [appellant] must 'adduce fairly powerful mitigating reasons
and persuade us that the district judge was unreasonable in
balancing pros and cons.'" United States v. Batchu, 724 F.3d 1,
14 (1st Cir. 2013) (citing United States v. Madera–Ortiz, 637 F.3d
26, 30 (1st Cir. 2011)).
Here, Arsenault appears to argue that because of the
procedural errors alleged above, the judge ultimately sentenced
- 20 -
him to an unduly harsh sentence that is substantively unreasonable.
However, Arsenault fails to adduce any mitigating reasons powerful
enough to persuade us that the judge was unreasonable in his
judgment call. As discussed above, the judge explicitly stated
that he considered his "obligation to impose a sentence that is
sufficient, but no greater than necessary to achieve the purposes
of the law" and thoroughly explained his plausible and defensible
judgment call. Accordingly, we find no abuse of discretion in the
sentencing judge's determination.
CONCLUSION
For the foregoing reasons, we affirm Arsenault's 780-
month sentence.
- 21 -