APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
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.
Before Kayatta, Selya and Barron, Circuit Judges.
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. 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 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.
In sentencing appeals, appellate review is bifurcated. See United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). " [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, 128 S.Ct. 586, 169 L.Ed.2d 445 (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) ...