APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. García-Gregory, U.S. District Judge.
Jenifer Yois Hernández-Vega, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellant.
Rachel Brill for appellee.
Before Lynch, Chief Judge, Torruella and Thompson, Circuit Judges.
LYNCH, Chief Judge.
This is a sentencing appeal by the government. On January 11, 2012, defendant Fernando Crespo-Rí os, then aged 46, pled guilty to two crimes: (1) transferring obscene material to a minor, and (2) possessing child pornography. The Probation Office calculated a guideline sentencing range between 70 and 87 months, and a term of supervised release between 5 years and life. On August 15, 2013, the district court sentenced the defendant to imprisonment for the time that he had already served -- which amounted to 13 days -- and 15 years of supervised release. The government appeals this sentence as substantively unreasonable. Because the district court failed to provide an adequate explanation as required by law for this extraordinary variance, we vacate the sentence and remand the matter for resentencing. Of course, in remanding, we do not express any opinion as to what the sentence should be.
From August 2007 to April 2008, the defendant communicated online with a Special Agent of the FBI, who was posing as a twelve-year-old Puerto Rican girl. Despite being informed of her age, the defendant's conversations were explicitly sexual in nature. The defendant " used a web camera to transmit to the 'minor' on several occasions apparently live images of his genital area and his erect penis." He also " repeatedly encourage[d] the 'minor' to engage in sexual activities with him or for him." He suggested that the minor " masturbate, model a g-string for him, exchange underwear with him, bathe him, engage in sex or oral sex with him, watch pornographic films before having sex, and have his child." He asked the minor to meet him, or to transmit images of herself.
Based on information learned from these chats, federal agents secured a search warrant for the defendant's home and computer. During their search, the FBI found between 300 and 600 images of child pornography. " [T]he images contained bondage, oral sex with ejaculation, adults penetrating children and children performing sex with other children." In addition, the FBI found a video that " shows a girl of approximately thirteen (13) years old, that has been tied by her neck, ankles and wrists, while an adult performed oral, vaginal and anal sex."
The defendant was indicted on May 29, 2008, for knowingly possessing both still
images and movie files of minors engaged in sexually explicit conduct, and knowingly attempting to transfer obscene material to someone who was under the age of 16. He was arrested the next day, and remained in jail until he posted a secured bond of $100,000 on June 13, 2008, when he was released to home incarceration. On September 16, 2008, the magistrate judge modified the conditions of the defendant's release from home incarceration to home detention with electronic monitoring. On August 3, 2010, the magistrate judge eliminated home detention and electronic monitoring, and imposed a curfew.
On January 11, 2012, Crespo-Rí os entered a straight plea to both counts of the indictment. The district court held a sentencing hearing over a year later, on January 30, 2013. In the Presentence Investigation Report (" PSR" ), the Probation Office had calculated a guideline sentencing range between 70 and 87 months imprisonment, and identified no bases for a departure or a variance. Crespo-Rí os requested a downward variant sentence of time served, arguing that he had a low risk of recidivism, that registering as a sex offender is a significant additional punishment, and that U.S.S.G. § 2G2.2 is an " extremely flawed Guideline." In response, the government asked the court to sentence the defendant in accordance with the applicable sentencing guidelines, between 70 and 87 months.
At the sentencing hearing, the defendant introduced a psychological evaluation from Dr. José Méndez, dated August 22, 2009. The district court ordered an updated psychosexual report " [b]ecause the only way that I'm going to be able to either depart or go to a variance in this case is for me to be satisfied at this time that defendant does not pose a threat to society in the sense of coming forward and doing anything to children." The sentencing hearing was rescheduled as a result.
The second sentencing hearing was held on August 15, 2013. Dr. Vanessa Berrí os Méndez, who completed the requested psychosexual report, testified about her findings. When the court asked about the defendant's risk of recidivism, Dr. Berrí os responded: " I believe that the risk is low as long as he goes to treatment . . . . [a]nd if he controls his substance abuse." The defendant re-iterated his arguments for a sentence of time served, particularly emphasizing the evidence of his low risk of recidivism. The government asked the district court to consider the other factors in 18 U.S.C. § 3553(a), including the need to consider the seriousness of the offenses, to promote respect for the law, to provide just punishment, and to avoid sentencing disparities among similarly situated individuals.
Ultimately, the district court granted the requested variance and sentenced the defendant to the time that he had already served -- 13 days. The defendant was also sentenced to 15 years of supervised release with, among other conditions, no access to the internet, a requirement that he register as a sex offender, and a requirement that he participate in sex offender treatment.
By way of explanation, the district court stated:
[T]he Court considers that there are some factors in this case that are salient, and those are the personal history and characteristics of the defendant as well as the potential for rehabilitation. And in view of this conclusion of the psychosexual assessment report, the ...