United States v. Colcord ( 2024 )

United States Court of Appeals
For the First Circuit
No. 22-1550
UNITED STATES OF AMERICA,
Appellee,
v.
JASON COLCORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Gelpí, Lynch, and Rikelman,
Circuit Judges.
Andrew Levchuk on brief for appellant.
Benjamin Block, Assistant United States Attorney, and Darcie
N. McElwee, United States Attorney, on brief for appellee.
January 8, 2024
GELPÍ, Circuit Judge. Defendant Jason Colcord
("Colcord") pled guilty to one count of knowingly accessing with
intent to view material that contained over 900 child pornography
images, in violation of 18 U.S.C. § 2252A(a)(5)(B). He was
sentenced to 145 months’ imprisonment, near the low-end of his
advisory guidelines sentencing range, followed by five years of
supervised release. Colcord challenges his within-the-range
sentence, arguing that the district court’s decision to not impose
a downwardly variant sentence was substantively unreasonable.
Having discerned no error, we affirm.
I. BACKGROUND
We begin with a review of the relevant facts. As this
appeal follows a guilty plea, we draw the facts from the plea
agreement, the change-of-plea colloquy, the uncontested portions
of the presentence investigation report ("PSR"), and the
sentencing hearing transcript. See United States v. Spinks, 63
F.4th 95, 97 (1st Cir. 2023) (quoting United States v.
Ubiles-Rosario, 867 F.3d 277, 280 n.2 (1st Cir. 2017)).
A. Child Pornography Charge and Plea Agreement
In January 2020, the Federal Bureau of Investigation
determined that an Internet Protocol ("IP") address located at a
residence in Maine was offering to share child pornography images
through the BitTorrent ("BT") network, a type of peer-to-peer
communication software. Law enforcement then downloaded,
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reviewed, and confirmed that the files consisted of child
pornography images and videos. On February 4, 2020, law
enforcement verified that Colcord was associated with the
residence and that he has an extensive criminal history including
sexual abuse of a minor. Then, on February 20, 2020, law
enforcement searched the residence and interviewed Colcord.
During the interview, Colcord consented to law
enforcement searching his Samsung Galaxy S9 cell phone and admitted
to using BT to download pornography onto his phone. On
February 26, 2020, the cell phone was sent to the Department of
Homeland Security Investigation ("HSI") office in Boston to
extract the child pornography images from the phone. And on
July 20, 2020, the HSI office in Maine was notified that 710 images
and three videos of prepubescent minors engaged in sexual acts
were extracted from the phone, which the PSR calculated as a total
advisory guidelines quantity of 935 child pornography images. Many
of the images, which Colcord's phone data indicated he viewed
multiple times between December 2019 and February 2020, depicted
pubescent and prepubescent girls engaged in sexually explicit
conduct with adult men. Many of the images depicted minors who
were under twelve years old.
On November 19, 2021, Colcord pled guilty to one count
of knowingly accessing with intent to view material that contained
child pornography images, in violation of 18 U.S.C.
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§ 2252A(a)(5)(B), pursuant to a plea agreement. The plea agreement
stated that "the parties agree to make a non-binding recommendation
for a sentence of 120 months imprisonment" and that "the [c]ourt
has the discretion to impose any lawful sentence." The district
court then advised Colcord that "any recommendation made to [the
court] at sentencing is not binding" which Colcord stated he
understood. Colcord also agreed to waive his right to appeal a
sentence of 140 months or less.
B. Sentencing
The PSR provided the calculations for the total offense
level and guideline range which Colcord did not object to. A total
offense level of twenty-eight combined with a criminal history
category of six resulted in an advisory guideline sentencing range
of 140 to 175 months. At sentencing, Colcord and the government
did as the plea agreement stated and jointly recommended a sentence
of 120 months. Colcord argued that 120 months was sufficient and
warranted on account of his family history and his efforts to
support his mother.
Colcord appeared before the district court for a
sentencing hearing on June 29, 2022. The district court noted
"that since Kimbrough, a district court makes procedural error
when it fails to recognize its discretion to vary from the
guideline range based on a categorical policy disagreement with
the guideline." The district court then acknowledged "that child
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pornography sentencing guidelines typically do not actually
reflect and determine the actual sentence[,] at least in
non-production cases." After explaining this, the district court
expressed that the child pornography enhancements as applied to
Colcord were appropriate.
In imposing the sentence, the district court considered
the factors in 18 U.S.C. § 3553(a), specifically noting the nature
of the offense and the need to protect the public:
The nature of this offense, Mr. Colcord, like
all child pornography cases, shocks the
conscious. The images recovered from your
cell phone which number in excess of 700
depict child pornography involving abuse of
pubescent and prepubescent girls, which
definition meets -- which images satisfy the
definition of sadomasochism, specifically
prepubescent girls engaged in vaginal
intercourse with adult males. So, it is
almost beyond the reach of any mere mortal to
capture how deeply depraved and terrorizing
the creation of these images are for the
sexual edification of a marketplace of
consumers, and you are one such consumer.
The district court then acknowledged the toll of this offense upon
the victims highlighting their pain and the "rippling of
dysfunction" that will permeate the community. The district court
was clear that "[i]t's not just scrolling and clicking." The
district court also pointed out Colcord's role as a consumer which
creates a demand and drives the production of such images. As for
Colcord's personal history, the district court noted his difficult
past, specifically, how his mother was heavily involved with
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alcohol and drugs leading to abuse and neglect, as well as the
time he spent in foster care. The district court considered
Colcord's "robust" criminal history "hallmarked by violence" which
included "sexual abuse of a minor, assault, violations of
conditions of release, violating protective orders, failure to
register as a sex offender, and domestic violence" while
highlighting the "significant concern [this criminal history
causes] for the risk . . . pose[d] to the public." The district
court also explicitly spelled the § 3553(a) factors, including the
apparent "need for just punishment to ensure adequate
deterrence . . . and to protect the public from further crimes by
[Colcord]." Then, the district court acknowledged Colcord's
improvement with his anger management for the past two years, his
lack of recent or significant drug use, and his employment. Based
on each of these considerations, the district court imposed a
sentence of 145 months’ imprisonment followed by five years of
supervised release. Colcord timely appealed this sentence.
II. DISCUSSION
A. Standard of Review
There are two aspects in analyzing the reasonableness of
a sentence: procedural and substantive. United States v.
Gomera-Rodríguez, 952 F.3d 15, 18-20 (1st Cir. 2020); United States
v. Irizarry-Sisco, 87 F.4th 38, 50 (1st Cir. 2023). "If an
appellant makes no claim of procedural [unreasonableness], as is
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the case here, we limit our review to the substantive
reasonableness of the sentence." United States v. Prosperi, 686
F.3d 32, 42 (1st Cir. 2012) (citing United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008)). "We review preserved substantive
reasonableness claims for abuse of discretion." Gomera-Rodríguez,
952 F.3d at 20 (citing United States v. Aquino-Florenciani, 894
F.3d 4, 8 (1st Cir. 2018)); see Holguin-Hernandez v. United States,
140 S. Ct. 762, 766 (2020) (explaining that a sentence's
substantive reasonableness is preserved for appellate review
"where a criminal defendant advocates for a sentence shorter than
the one ultimately imposed"). On the other hand, unpreserved
arguments are reviewed for plain error. United States v.
Hassan-Saleh-Mohamad, 930 F.3d 1, 6 (1st Cir. 2019).
B. Substantive Reasonableness
A sentence is substantively reasonable if its rationale
is plausible and resulted in a defensible outcome.
Gomera-Rodríguez, 952 F.3d at 20. "There is no one reasonable
sentence in any given case but, rather, a universe of reasonable
sentencing outcomes." United States v. Clogston, 662 F.3d 588,
592 (1st Cir. 2011) (citing Martin, 520 F.3d at 92).
"[R]easonableness is a protean concept," Martin, 520 F.3d at 92,
and "[a]s we have repeatedly emphasized, a challenge to the
substantive reasonableness of a sentence is particularly
unpromising when the sentence imposed comes within the confines of
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a properly calculated" advisory guidelines sentencing range.
Hassan-Saleh-Mohamad, 930 F.3d at 9 (quoting United States v.
O'Brien, 870 F.3d 11, 21 (1st Cir. 2017)). "Within-guidelines
sentences are entitled to a presumption of reasonableness," United
States v. Rodríguez-Adorno, 852 F.3d 168, 178 (1st Cir. 2017),
which Colcord has not overcome. See also Rita v. United States,
551 U.S. 338, 347 (2007) ("The first question is whether a court
of appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing
Guidelines. We conclude that it can.").
Colcord advances three arguments against the presumption
of the substantive reasonableness of his sentence whereas the
government defends the sentence as substantively reasonable.
First, he argues that the district court "conflated [his own]
conduct with that of those who committed the more serious
crimes . . . captured in the images and videos." Second, he argues
that the district court allotted insufficient weight to his
personal mitigating circumstances in considering the § 3553(a)
factors.1 Third, he argues that the district court's rejection of
the parties' joint recommendation of a 120-month sentence was not
Despite Colcord's underdeveloped argumentation concerning
1
the weighing of § 3553(a) factors, we assume in his favor that it
is not waived. See Hassan-Saleh-Mohamad, 930 F.3d at 8 n.8; United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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"convincingly address[ed]." We address the deficiency of each
argument seriatim.
Colcord's conflation argument is a mischaracterization
of the district court's comments on the nature of the offense.
The district court's comments specifically referred to Colcord's
role as a "consumer" which added to the "demand" for child
pornography. The district court then emphasized how this demand
results in a "rippling dysfunction" for the victims due to the
Internet's propensity to "last forever." The creation and
substance of the images were mentioned to highlight how consumers
create the demand for the production of these images. See
Hassan-Saleh-Mohamad, 930 F.3d at 9 (upholding a within-the-range
sentence imposed for a non-production child pornography offense
where the district court weighed the harm the defendant imposed in
"fueling demand and supply" in this illicit market);
Gomera-Rodríguez, 952 F.3d at 20 (same); United States v. Monroe,
Nos. 19-1869, 19-1872, 2021 WL 8567708, at *2 (1st Cir. Nov. 10,
2021) (upholding an upwardly variant sentence for production and
possession of child pornography). This demonstrates that the
district court imposed the sentence specifically based on
Colcord's own conduct as a consumer rather than the conduct
portrayed in the images and videos.
Further, Congress has recognized that reducing the
demand for this exploitative market is as necessary as reducing
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the supply. United States v. Blodgett, 872 F.3d 66, 71 (1st Cir.
2017); cf. Osborne v. Ohio, 495 U.S. 103, 109-10 (1990)
(recognizing that it is "surely reasonable for the State to
conclude that it will decrease the production of child pornography
if it penalizes those who possess and view the product, thereby
decreasing demand"). The Internet has become a mechanism for
defendants to view these distressing images "with virtual
anonymity" and re-victimize these children "again when these
images of their sexual assault are traded over the Internet in
massive numbers by like-minded people across the globe." H.R.
Rep. No. 112-638 (2012) (quoting U.S. Dep't of Just., Nat'l
Strategy for Child Exploitation Prevention & Interdiction: A
Report to Congress (2010)). The United States Sentencing
Commission reported that, in 2019, "non-production child
pornography offense involved a median number of 4,265 images, with
some offenders possessing and distributing millions of images and
videos." U.S. Sent'g Comm'n, Federal Sentencing of Child
Pornography Non-Production Offenses 4 (2021). "We add, moreover,
that the defendant's attempt to downplay the severity of his
conduct because he was a viewer of vile material, not a producer
or distributor of it, is unpersuasive." Blodgett, 872 F.3d at 71.
Colcord relatedly argues that the district court's
decision not to impose a downwardly variant sentence for his
non-production offense, as other courts have done based on a
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categorical policy disagreement, is in error.2 At sentencing, the
district court explicitly acknowledged its ability to impose a
downwardly variant sentence based on a categorical policy
disagreement, going so far as to note the 2012 Sentencing
Commission report which expressed that child pornography
sentencing guidelines may inaccurately apply "so many
enhancements" in non-production cases. Yet, even in light of this
discretion, the district court expressed that the enhancements
applied here were warranted due to the quantity of images accessed
"involving abuse of pubescent and prepubescent girls," the nature
of the offense, and its effect on society, reflecting the district
court's thoughtfulness in choosing a sentence that "fit both the
2 There are two aspects to this specific argument that we
briefly address. First, this argument was not preserved below and
is subject to plain error review. But even if we assume in
Colcord's favor that the argument is preserved and abuse of
discretion applies, this argument still fails for the reasons we
discuss. Hassan-Saleh-Mohamad, 930 F.3d at 6.
Second, in making this argument, Colcord makes a cursory
reference to Kimbrough error and yet misunderstands the
circumstances in which a district court can be said to have
committed this error. Colcord did not pinpoint any specific
comment to show that the district court did not understand its
discretion to vary. Instead, Colcord argues that it was error for
the district court to choose to not have a categorical policy
disagreement with the guidelines as other district courts have
done. We foreclose this line of reasoning by reiterating what we
said before: "While district courts may certainly conclude that
the guidelines sentencing range in child pornography cases is
harsher than necessary in many cases, there is no requirement that
a district court must categorically reject the child pornography
guidelines based on their provenance." Aquino-Florenciani, 894
F.3d at 8.
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offender and the circumstances of the offense." Clogston, 662
F.3d at 592. The district court's awareness of its capacity to
impose a downwardly variant sentence is exhibited in the record
and its decision to not impose such a sentence is not error.
United States v. Stone, 575 F.3d 83, 89-90 (1st Cir. 2009)
(explaining that a district court only commits Kimbrough error
when "it fails to recognize its discretion to vary from the
guideline range" but not when it chooses to impose a sentence
within the guideline range (citations omitted)). We have
recognized the broad discretion that district courts possess to
agree with the guidelines and continue to do so. Stone, 575 F.3d
at 90.
Next, Colcord's weight argument falls flat because
§ 3553(a) does not mandate courts to apply a certain weight to
each factor but only to consider each factor in imposing a sentence
"sufficient, but not greater than necessary." 18 U.S.C. § 3553(a).
"[T]he weighting of those factors is largely within the court's
informed discretion." Clogston, 662 F.3d at 593. And Colcord
fails to mention any case stating otherwise. See United States v.
Morales-Negrón, 974 F.3d 63, 66-67 (1st Cir. 2020) ("But 'a
disagreement with the district court's weighing of the different
sentencing factors' does not alone constitute error." (quoting
United States v. Contreras-Delgado, 913 F.3d 232, 242 (1st Cir.
2019))). Moreover, the sentencing transcript demonstrates that
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the district court considered Colcord's past, highlighting his
rough childhood and his significant criminal history. While
Colcord surely would want the district court to give greater weight
to his personal mitigating circumstances, the district court was
entirely within its discretion to find that these mitigating
factors were outweighed by the seriousness of the offense,
Colcord's criminal history, and the need to protect the public.
Gall v. United States, 552 U.S. 38, 52 (2007) ("It has been uniform
and constant in the federal judicial tradition for the sentencing
judge to consider every convicted person as an individual and every
case as a unique study in the human failings that sometimes
mitigate, sometimes magnify, the crime and the punishment to
ensue." (quoting Koon v. United States, 518 U.S. 81, 113 (1996))).
"That the sentencing court chose not to attach to certain of the
mitigating factors the significance that the appellant thinks they
deserved does not make the sentence unreasonable." Clogston, 662
F.3d at 593.
Lastly, Colcord's argument that he should have received
a sentence of 120 months also fails to overcome the presumption of
reasonableness of his sentence. He simply argues that the district
court should have imposed a 120-month sentence as both parties
recommended and that the district court rather chose to impose 145
months because of its personal disgust towards the offense.
However, "[t]he customary rule is that the district court is not
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bound by the parties' recommendations as to the length of the
sentence to be imposed." United States v. Rijos-Rivera, 53 F.4th
704, 711 (1st Cir. 2022) (citing United States v. Mulero-Vargas,
24 F.4th 754, 759 (1st Cir. 2022)). Nor is there evidence in the
record of "personal disgust" by the district court as Colcord
claims. See Hassan-Saleh-Mohamad, 930 F.3d at 7 ("And there is no
evidence that the district court imposed the sentence based on
being 'completely offended by the crime,' . . . rather than based
on a reasoned consideration of the relevant sentencing factors.").
Colcord also asserts that the district court did not
adequately explain why the recommended 120-month sentence would
not have sufficed to meet the goals of sentencing. He points out
that his pretrial release conditions proved he posed minimal danger
to the community, therefore, imposing a greater sentence due to
such purported danger now is inconsistent.3 This line of
Under an abuse of discretion standard, the burden a
3
defendant must carry to overturn a sentence is an uphill climb and
especially so when the sentence imposed is within the advisory
guidelines range. That suffices to say that differences in
findings of a defendant's danger to the community -- which is only
one factor of many to consider at sentencing -- for release prior
to sentencing and at sentencing is not enough alone to overcome
the highly deferential review of a sentence. United States v. De
la Cruz-Gutiérrez, 881 F.3d 221, 227 (1st Cir. 2018) (emphasizing
the "heavy burden" a defendant must carry to "[s]uccessfully
challeng[e] the substantive reasonableness of a sentence");
Hassan-Saleh-Mohamad, 930 F.3d at 7 ("And generally, the district
court did not need to 'be precise to the point of pedantry' in
explaining its weighing of the § 3553(a) factors." (quoting United
States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006)).
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reasoning, however, ignores the different factors that district
courts consider when deciding to release or detain a defendant
before trial versus imposing a sentence. In deciding to release
or detain a defendant before trial, the district only considers
whether "the person is not likely to flee or pose a danger to the
safety of any other person or the community if released." 18
U.S.C. § 3143(a)(1). However, during sentencing, knowledge
concerning the specific offense alongside the defendant's personal
history and other factors are taken into consideration to determine
the appropriate sentence. 18 U.S.C. § 3553(a) (listing out
factors). Accordingly, during sentencing, the district court is
within its traditional, discretionary role to utilize the PSR,
arguments from counsel, and facts to impose a sentence that is
sufficient but not greater than necessary. Koon, 518 U.S. at 113(explaining the breadth of discretion that lies with the sentencing
judge).
At sentencing, the district court found that Colcord's
extensive criminal history which involved "sexual abuse of a minor,
assault, violations of conditions of release, violating protective
orders, failure to register as a sex offender, and domestic
violence" combined with the effect of this offense warranted a
with-the-range sentence of 145 months. In rejecting Colcord’s
request to impose a downwardly variant sentence of 120 months, the
district court explained:
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[I]t's rare that I see a defendant stand
before me for sentencing for this type of
offense who has a criminal history -- much of
a criminal history, frankly, never mind a
criminal history as robust as yours and one
that is hallmarked by violence, violation of
court orders, including violations of
conditions of release, all of which give me
significant concern for the risk you pose to
the public. For those reasons, I'm not going
to impose a downwardly variant sentence in
this case.
This leads us to conclude that the district court sufficiently
addressed its decision not to vary downward considering relevant
sentencing factors, including Colcord’s significant criminal
history and risk to the public. Thus, the district court's
explanation concerning these factors, the nature of the offense,
and Colcord's effect as a proponent of demand for child pornography
images, certainly provided a plausible rationale that resulted in
a defensible within-the-range sentence.
III. CONCLUSION
For the reasons stated, Colcord's substantive
reasonableness challenge fails, and his sentence is affirmed.
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