United States Court of Appeals For the First Circuit
No. 19-1763
UNITED STATES OF AMERICA,
Appellee,
v.
WALLY IRIZARRY-SISCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado Hernández, U.S. District Judge]
Before
Barron, Chief Judge, Howard, Circuit Judge, and McAuliffe,* District Judge.
Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP was on brief, for appellant. Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, were on brief, for appellee.
November 22, 2023
* Of the United States District Court for the District of New Hampshire, sitting by designation. HOWARD, Circuit Judge. After a six-day trial, a jury
found Wally Irizarry-Sisco guilty of one count of transportation
of a minor with the intent to engage in criminal sexual activity,
in violation of 18 U.S.C. § 2423(a). On appeal, Irizarry seeks
to vacate the verdict against him, based upon the assertedly
erroneous admission of hearsay testimony and improper opinion
testimony. He also challenges the procedural and substantive
reasonableness of his sentence. Concluding that the contested
testimony was properly admitted and that the sentence was
procedurally and substantively reasonable, we affirm.
I. BACKGROUND
Because we review the challenged evidentiary rulings
using a balanced approach, "objectively viewing the evidence of
record," we present the background facts in a similarly balanced
manner. United States v. Velazquez-Fontanez, 6 F.4th 205, 212
(1st Cir. 2021) (alteration omitted) (quoting United States v.
Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015)). Many of the
background facts are drawn from the closed-circuit-television
trial testimony of the alleged victim, to whom we refer as Minor
Y.1 We note when the facts are drawn from such testimony.
1The government also presented the testimony of the alleged victim's neighbor, her maternal aunt, and her older sister, among other witnesses.
- 2 - At the time of the alleged incidents, Irizarry was a
close friend to Minor Y's father and to her family. Irizarry and
Minor Y's father were initially engaged in a business relationship,
but a friendship developed thereafter.
From 2012 onward, Irizarry would visit the family
"[a]lmost every day" either at the family's home or at their farm,
both of which were located in Ponce, Puerto Rico. Minor Y's
parents trusted Irizarry to the point that they would allow him to
bring Minor Y on trips alone with him "[a]ll the time," and Minor
Y explained that she "loved him like a grandfather." Minor Y
further testified that she had known Irizarry since she was seven
years old.
In 2015, the relevant offense conduct began. Minor Y
was eleven years old at the time, Irizarry nearly sixty. During
that year, Minor Y would see Irizarry "daily" at her family's home.
Irizarry would give Minor Y gifts, including an electronic tablet
and a volleyball. Frequently, he would take her -- alone -- in
his gray Suzuki Vitara truck to shop at nearby stores, including
Kmart and Walmart, as well as to a local bakery to buy sweets for
her. On one such trip, Irizarry insisted on buying underwear --
"panties," according to Minor Y -- for Minor Y after he overheard
Minor Y telling her mother that she needed some and despite her
mother's objection to his making such a purchase.
- 3 - On a weekend in March, despite telling Minor Y that he
would drive her to Walmart, Irizarry unexpectedly drove her to the
El Eden motel in the Juana Díaz suburb of Ponce. Minor Y testified
that, as they drove in, Irizarry told her, "Put your seat back so
that they don't see you because you're a minor." After parking
his car, Irizarry got out and paid someone for a motel room
equipped with a pole. 2 As was the motel's practice, a motel
employee recorded the license plate of the car, along with the
car's time of entry and exit. The manager of the motel testified
that the motel's records indicated that a vehicle bearing
Irizarry's license plate number was parked at the motel from 8:57
a.m. to 1:42 p.m. on March 22, 2015.
Minor Y testified that, while she and Irizarry were in
the motel room, Irizarry -- among other inappropriate behavior --
touched her by her "woo," Minor Y's term for "vagina." She further
testified that she thought Irizarry wanted to have sex with her,
and she stated at trial that she "didn't like what he did." After
they drove back to her family's home, Minor Y did not immediately
tell anyone what had happened, as she was afraid that her father
would hit her.
It is disputed whether the person on duty was a man, as 2
Minor Y testified, or a woman, as Irizarry claims. This dispute is not significant, as there was other corroboration at trial that Irizarry was at the El Eden motel during the relevant timeframe.
- 4 - Minor Y testified that about a week later Irizarry took
her to another motel, located near a boardwalk where they had just
obtained food. She explained that the entrance of the motel had
"some dolphins," "its name," and "some palm trees." Minor Y
identified this second motel as the Marbella motel through
photographs provided by the government and entered into evidence,
although she did not explicitly identify the motel by name. She
also testified in graphic detail about various sexual acts that
Irizarry committed once inside the motel room, including that
Irizarry ejaculated on Minor Y.
Relevant to one of Irizarry's claims of evidentiary
error, one of Minor Y's neighbors, Wanda Pagan-Colon, testified
that Minor Y and her sister were visiting Pagan's house when Minor
Y thought she heard the sound of Irizarry's Suzuki Vitara outside.
After Minor Y told Pagan and her sister to "listen," she "got very
nervous. Her eyes got really big. She started moving her
fingers, and she started looking everywhere when she said that she
heard the sound of the car." Only about a week had passed since
the Marbella motel incident. After hearing the truck, Minor Y's
sister mentioned that their mother did not "want Old Man Wally at
the house."
Seeing Minor Y's distress, Pagan asked if Irizarry had
done anything to her. Pagan testified, over Irizarry's
objections, that while Minor Y initially denied that anything had
- 5 - happened, she was acting very nervous and unusual and so Pagan
"insist[ed] and [she] asked [Minor Y], did he do anything to you?"
Minor Y got even more nervous and said, "Yes, Ti-Ti."3 Pagan then
asked, "What did he do? Tell me what he did to you." Minor Y
began to explain, but Pagan asked, "[W]hat he has between his legs,
did he put it in your woo-woo?" Minor Y responded, "Yes, Ti-Ti."
Pagan asked, "What else happened?" Minor Y reportedly told her,
while crying, that "some white stuff came out." When Pagan later
looked out of her window, she indeed saw Irizarry's truck parked
across the street outside Minor Y's house. Irizarry argues on
appeal that Pagan's testimony concerning Minor Y's statements was
hearsay improperly admitted by the district court under the
"excited utterance" exception. See Fed. R. Evid. 803(2).
Relevant to Irizarry's other claim of evidentiary error,
Minor Y's aunt, Sarah Mercado-Alicea, testified at trial that she
was at Minor Y's house one day in 2015 when Minor Y came home with
Irizarry and complained to her that her "ass" hurt. Mercado told
Minor Y, "Be careful that that old man hasn't done anything to
you." In response, Minor Y, in Mercado's words, "smiled at me,
but she smiled a very sort of sad smile" and shrugged her shoulders
while making a facial gesture. Mercado testified that she
interpreted Minor Y's response to "mean[] that the old man had
3 Minor Y typically referred to Pagan as "Ti-Ti," as she viewed her as an aunt ("tía" in Spanish).
- 6 - hurt her." Irizarry argues on appeal that this statement by
Mercado was inadmissible as an opinion on an ultimate issue, see
Fed. R. Evid. 704, and as an opinion on a witness's credibility.
II. PROCEDURAL HISTORY
A grand jury charged Irizarry with three counts of
transportation of a minor with the intent to engage in criminal
sexual activity, in violation of 18 U.S.C. § 2423(a).4 One count
was later dismissed pursuant to the government's motion. Of the
remaining two counts, the jury found Irizarry guilty on the count
related to his alleged conduct in connection with the first motel,
the El Eden motel, but it acquitted him on the count related to
his alleged conduct in connection with the second motel, the
Marbella motel.5
In its Presentence Investigation Report (PSR), the U.S.
Probation Office calculated a base offense level of 28 for
4 18 U.S.C. § 2423(a) reads, "A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life." We have construed this section to apply to conduct occurring wholly within Puerto Rico. See United States v. Cotto- Flores, 970 F.3d 17, 27-28 (1st Cir. 2020). 5 The government suggests that it is likely Irizarry was acquitted on Count Two because, unlike with the El Eden motel, no one from the Marbella motel testified, nor did Minor Y explicitly identify the name of the motel, despite identifying photos of the Marbella motel as the second motel to which Irizarry brought her.
- 7 - Irizarry's § 2423(a) conviction. The PSR then added a 2-level
enhancement because the offense involved a sex act, an 8-level
enhancement because the offense involved a minor under the age of
twelve, and a 5-level enhancement because the offense involved a
"pattern of activity involving prohibited sexual conduct." These
enhancements resulted in a total offense level of 43, which --
based on Irizarry's criminal history category of I -- resulted in
a guideline sentence of life imprisonment.
Irizarry objected to the PSR -- specifically to the 5-
level enhancement for a "pattern of activity involving prohibited
sexual conduct" -- on the basis that the jury had only found him
guilty on one count and had acquitted him on the other. Therefore,
he argued, no pattern of activity existed.
The district court adopted the PSR guideline
calculations and considered the 18 U.S.C. § 3553(a) factors. The
judge took into account Irizarry's age and his health problems,
explicitly stating that "the Court has considered the effect that
a prolonged sentence of imprisonment could have on Mr. Irizarry’s
health, as well as the Bureau of Prisons' ability to provide proper
medical care to the defendant under custody." The judge sentenced
Irizarry to 235 months' imprisonment, below the recommended
guideline range of life imprisonment, writing, "Taking into
consideration the totality of the record, a sentence below the
- 8 - advisory guideline range is a sentence sufficient and not greater
than necessary to promote the objectives of sentencing."
III. EVIDENTIARY RULINGS
We review preserved challenges to the district court's
evidentiary rulings for abuse of discretion. United States v.
Spencer, 873 F.3d 1, 14 (1st Cir. 2017). An "[a]buse of discretion
occurs when a relevant factor deserving of significant weight is
overlooked, or when an improper factor is accorded significant
weight, or when the court considers the appropriate mix of factors,
but commits a palpable error of judgment in calibrating the
decisional scales." United States v. Taylor, 848 F.3d 476, 484
(1st Cir. 2017) (quoting United States v. Jiménez, 419 F.3d 34, 43
(1st Cir. 2005)). Unpreserved challenges to the same are reviewed
under the stricter standard of plain error. United States v.
Belanger, 890 F.3d 13, 24 (1st Cir. 2018). This Court "will only
vacate a jury verdict if an improperly admitted statement was not
harmless -- that is, if its admission 'likely affected the outcome
of trial.'" United States v. Upton, 559 F.3d 3, 15 (1st Cir.
2009) (quoting United States v. Castellini, 392 F.3d 35, 52 (1st
Cir. 2004)).
The government contends that Irizarry did not preserve
his evidentiary challenge as to Mercado's lay opinion testimony
but concedes that he did as to Pagan's testimony regarding Minor
Y's statements, which were admitted under the excited utterance
- 9 - exception. Irizarry contends in his reply brief that he properly
preserved both. Instead of wading into this issue, we assume,
favorably for Irizarry, that our review is for abuse of discretion,
rather than for plain error. See Spencer, 873 F.3d at 14.
Nevertheless, neither of Irizarry's claims survives this standard
of review. Because we find below that the district court did not
abuse its discretion in admitting the evidence, we need not conduct
a harmlessness inquiry.
A. Excited Utterance
Irizarry argues on appeal that the statements made by
Minor Y to Pagan should have been excluded as hearsay and were
improperly admitted by the district court under the excited
utterance exception. See Fed. R. Evid. 802, 803(2). Pagan's
testimony concerning the statements that Minor Y made to her were
hearsay, see Fed. R. Evid. 801(c), and the government does not
contend otherwise. The excited utterance exception, however,
exempts from the rule against hearsay a "statement relating to a
startling event or condition, made while the declarant was under
the stress of excitement that it caused." Fed. R. Evid. 803(2).
We have explained that a statement may be admitted under
Rule 803(2) if it meets three requirements: (1) the declarant must
experience a startling event; (2) the statement must be made while
the declarant is subject to the influence of that event; and (3)
the statement must relate to that event. See United States v.
- 10 - Collins, 60 F.3d 4, 8 (1st Cir. 1995) (citing United States v.
Bailey, 834 F.2d 218, 228 (1st Cir. 1987)). Irizarry argues that
the statements were not the product of a startling event but
instead were made in response to questioning by Pagan, who made an
accusation against Irizarry in the presence of Minor Y and thereby
planted the idea in Minor Y's mind.
The rationale underlying the excited utterance exception
is that "excitement suspends the declarant's powers of reflection
and fabrication, consequently minimizing the possibility that the
utterance will be influenced by self interest and therefore
rendered unreliable." United States v. Taveras, 380 F.3d 532, 537
(1st Cir. 2004) (quoting United States v. Alexander, 331 F.3d 116,
122 (D.C. Cir. 2003)). We also keep in mind, as this Court has
noted previously, that "[p]rosecution of the crime of sexual abuse
of a child poses special evidentiary problems. The traditional
hearsay exceptions are not drafted with child sex abuse
prosecutions in mind." United States v. Ellis, 935 F.2d 385, 393
(1st Cir. 1991) (quoting Daniel Capra, Innovations in Prosecuting
Child Sexual Abuse, N.Y.L.J., November 9, 1989, at 3).
Under the first prong, which requires the declarant to
have experienced a startling event, "courts seem to look primarily
to the effect upon the declarant and, if satisfied that the event
was such as to cause adequate excitement, the inquiry is ended."
United States v. Napier, 518 F.2d 316, 318 (9th Cir. 1975) (quoting
- 11 - 2 McCormick on Evidence § 297, at 705 (2d ed. 1972)); see also 2
McCormick on Evidence § 272 (8th ed. 2022) (same). Minor Y made
the statements to Pagan, as the government explained to the
district court at sidebar and to this Court in its briefing, after
Minor Y heard the sound of Irizarry's truck pulling up to her
family home, which was across the street from Pagan's home. To
determine whether hearing this sound was a startling event for the
purposes of Rule 803(2), we look at the effect that it had on Minor
Y, whom Irizarry had allegedly assaulted twice in the previous two
weeks.
We find persuasive the reasoning of our sister court in
Napier, in which a victim of a violent assault, roughly eight weeks
after the attack, was 're-excited' after being shown a newspaper
photograph of her alleged attacker by her sister at home. 518
F.2d at 317. The victim's sister testified that the victim's
"immediate reaction was one of great distress and horror and
upset," and that the victim "pointed to it and she said very
clearly, 'He killed me, he killed me.'" Id. The Ninth Circuit
looked at the effect on the victim and found that the victim's
"suddenly and unexpectedly" being "confronted with a photograph of
her alleged assailant" was a sufficiently startling event to
qualify under the rule. Id. at 318. While seeing a newspaper
photograph was not in and of itself an event that might typically
be considered 'startling,' its connection with a previous
- 12 - startling event -- even one remote in time -- imbued it with that
quality in light of the effect that it had on the victim. See id.
Similarly, Pagan explained that after hearing the sound
of Irizarry's truck, Minor Y "got very nervous. Her eyes got
really big. She started moving her fingers, and she started
looking everywhere when she said that she heard the sound of the
car." She also began to cry and continued to do so throughout her
conversation with Pagan and her sister. Minor Y testified at
trial that when she heard the sound of Irizarry's truck, she knew
"he was going to my house to get me." Pagan went as far as to
characterize Minor Y as "hysterical" during their conversation.
While hearing a truck is not in and of itself startling,
when that truck is associated with the two recent sexual assaults
that Minor Y had allegedly experienced, hearing that sound could
have had the potential to 're-excite' Minor Y (and clearly seemed
to do so). The prospect of a third consecutive weekend of sexual
abuse, when the second had been a dramatic escalation from the
first, was undoubtedly frightening for Minor Y. We cannot say,
at least under the first prong, that the district court abused its
discretion in determining that hearing Irizarry's truck was a
startling event for Minor Y.
Analysis of the second prong -- that the statement be
made while the declarant is subject to the influence of the
startling event -- presents us with a closer call, but we do not
- 13 - find that the district court abused its discretion on this basis
either. Irizarry's primary argument against the admission of the
statements at issue is that they were elicited by Pagan's
questioning of Minor Y. It is true that Pagan testified that
while Minor Y initially denied that Irizarry had done anything to
her, after Pagan pressed her, asking whether Irizarry did anything
to her, Minor Y got "more nervous," and ultimately responded, "Yes,
Ti-Ti." Pagan next asked whether Irizarry put, "what he has
between his legs . . . in your woo-woo?" Minor Y again answered,
"Yes, Ti-Ti." Pagan then asked, "What else happened?" Minor Y
reportedly told her that "some white stuff came out."
Irizarry contends, without citing any relevant authority
on the point, that Minor Y's statements were inadmissible because
they were made in response to Pagan's questions rather than
spontaneously while under the influence of the startling event, as
required by the second prong of the Rule 803(2) analysis. Irizarry
also briefly contends that the statements are not admissible
because they pertained to the assaults that "allegedly occurred at
some unknown time," prior to Minor Y hearing Irizarry's truck.
Ultimately, the question "we must answer in determining
whether a statement satisfies Rule 803(2)'s second condition is
whether the statement was the product of reflective thought or the
stress of excitement caused by the startling event." United
States v. Magnan, 863 F.3d 1284, 1293 (10th Cir. 2017). In making
- 14 - this determination, courts consider a variety of factors
"includ[ing] (a) 'the amount of time between the event and the
statement,' (b) 'the nature of the event,' (c) 'the subject matter
of the statement,' (d) 'the age and condition of the declarant,'
(e) 'the presence or absence of self-interest,' and (f) 'whether
the statement was volunteered or in response to questioning.'"
Id. at 1292 (quoting United States v. Pursley, 577 F.3d 1204, 1220
(10th Cir. 2009) (collecting cases and factors from across the
federal circuits)).
"All other things being equal, a declarant's spontaneous
statement surely is more likely to qualify as an excited utterance
than a statement in response to questioning," but the presence of
questioning is not dispositive. Id. at 1293. The other circuits
to consider the question have agreed that the fact a statement was
elicited by questioning is not an absolute bar on that statement's
admissibility as an excited utterance. See Webb v. Lane, 922 F.2d
390, 394 (7th Cir. 1991) ("Statements made in response to
questioning may qualify as an excited utterance."); Guam v. Cepeda,
69 F.3d 369, 372 (9th Cir. 1995) (explaining that the "fact that
a statement is made in response to a question" is just one "aid to
assist in deciding the ultimate question, whether the statement
was the product of stress and excitement or reflective thought");
United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir. 1980) ("Nor
is it controlling that [the declarant's] statement was made in
- 15 - response to an inquiry."); cf. State v. Dessinger, 958 N.W.2d 590,
602 (Iowa 2021) (noting in the context of a child's account of an
assault, admitted under Iowa's Rule 803(2) analog, that "when the
statements do not result from a rational dialogue, or the
questioning from others is more general such as, 'What happened?'
the statements will be more likely to fall under the excited
utterance exception"); State v. Smith, 909 P.2d 236, 243 (Utah
1995) ("An excited utterance made in response to a somewhat leading
question does not necessarily make the declaration inadmissible,
although surely that fact must be carefully evaluated in
determining admissibility.").
Similarly, when an "excited utterance goes beyond
description of the exciting event and deals with past
facts . . . it may tend to take on a reflective quality and must
be more carefully scrutinized with respect to the second element."
Murphy Auto Parts Co. v. Ball, 249 F.2d 508, 511 (D.C. Cir. 1957)
(Burger, J.); see also Fed. R. Evid. 803(2) advisory committee's
notes to 1972 proposed rules (citing Murphy, 249 F.2d 508). But
like the fact that a statement was made in response to a question,
the "fact that the utterance is not descriptive of the exciting
event is [only] one of the factors which the trial court must take
into account in the evaluation of whether the statement is truly
a spontaneous, impulsive expression excited by the event."
Murphy, 249 F.2d at 511.
- 16 - It is in a "close case that the fact that our review is
for abuse of discretion matters most." United States v. Spencer,
873 F.3d 1, 12 (1st Cir. 2017). "[W]e may not reverse a
determination simply because we, if sitting as a court of first
instance, would have weighed the relevant considerations
differently." Negrón-Almeda v. Santiago, 528 F.3d 15, 21 (1st
Cir. 2008); see also Murphy, 249 F.2d at 511 (noting that the
evaluation of whether a statement is spontaneous "lies essentially
with the trial court, and not unlike the observation of
credibility" is "based in part, at least, on observation of the
witness, the context of the statement and all surrounding
circumstances"). Given the relevant factors, and the applicable
abuse of discretion standard of review, we cannot say the district
court committed a "palpable error of judgment," Taylor, 848 F.3d
at 484, in concluding that Minor Y's statements were spontaneously
made as a result of the stressful event.
The record reflects that Minor Y made the statement
immediately after becoming extremely anxious when she heard the
sound of Irizarry's truck. Indeed, Pagan testified that Minor Y
was hysterical during their conversation. See Magnan, 863 F.3d
at 1293 (noting that if a declarant's excitement level was
"severe," then statements made in response to questioning could
indeed qualify as excited utterances). And there is no indication
from the record that there was a break in Minor Y's excited state
- 17 - during the relevant period. While Pagan did not specifically
testify as to the length of time between Minor Y's hearing
Irizarry's truck and her statements at issue, the record "indicates
that it is unlikely that a significant amount of time elapsed," as
all the statements occurred in the course of a single conversation
that directly followed the sound of Irizarry's truck. United
States v. Moore, 791 F.2d 566, 572 (7th Cir. 1986).
We are also mindful of the special evidentiary problems
associated with child sexual abuse. As this Court has noted
previously, statements like these from young children like Minor
Y are in many ways sui generis. Ellis, 935 F.2d at 393.
Additionally, nothing in the record suggests that Minor Y had
previously discussed or been questioned about Irizarry's assaults,
and Irizarry has not identified a motive on the part of Minor Y to
fabricate what are undoubtedly extreme allegations. These factors
also support the District Court's conclusion that Minor Y's
statements, while they came in response to questions about past
events rather than the sound of the truck itself, were the result
of excitement. See Murphy, 249 F.2d at 511.
There remains the question whether the district court
abused its discretion in determining that -- under Rule 803(2)'s
third prong -- the statements related to the event. "Relating to"
an event under Rule 803(2) is markedly broader than "describing or
explaining" an event under the directly adjacent Rule 803(1)
- 18 - exception, which governs present sense impressions. See United
States v. Boyce, 742 F.3d 792, 798 (7th Cir. 2014). The relation
requirement encompasses those situations in which the "subject
matter of the statement is such as would likely be evoked by the
event." Id. at 799 (quoting 4 Weinstein's Federal Evidence ¶
803(2)[01] (1985)). Minor Y's statements, while they do not
describe or explain the sound of Irizarry's truck, are clearly
related to hearing that sound. For Minor Y, this was the vehicle
that conveyed her to two sexual assaults, and it was now coming
for her a third time. Appellant's argument that Minor Y's
statements had no relation to the event of hearing Irizarry's truck
is simply without merit, given the broad construction of the
relation requirement in the Federal version of Rule 803(2). See
"Thus, there was a sufficient basis for the [district]
court to have found that each of the conditions necessary for the
application of the excited utterance exception was met." United
States v. Bailey, 834 F.2d 218, 228 (1st Cir. 1987) (finding no
abuse of discretion by the district court). Having carefully
addressed each of the three prongs, we hold that the district court
did not abuse its discretion in admitting Minor Y's statements to
Pagan.6
6We also need not wade into the thornier question of whether, as the government alternatively proposes, the alleged sexual abuse
- 19 - B. Lay Opinion Testimony
Irizarry also argues on appeal that Mercado's testimony
-- that she interpreted Minor Y's shrug, facial gesture, and sad
smile to "mean[] that the old man had hurt her" -- was not
admissible as lay opinion testimony because it offered an opinion
as to an ultimate fact, in violation of Rule 704, as well as to
the credibility of the victim. Fed. R. Evid. 701, 704.
Lay opinion testimony is limited to opinions
"(a) rationally based on the witness's perception; (b) helpful to
clearly understanding the witness's testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." Fed. R.
Evid. 701. A lay opinion will fail the second "helpfulness"
requirement if "the jury can readily draw the necessary inferences
and conclusions without the aid of the opinion." United States
v. Sanabria, 645 F.3d 505, 515 (1st Cir. 2011) (quoting Lynch v.
City of Boston, 180 F.3d 1, 17 (1st Cir. 1999)). We afford the
district court "considerable discretion" in deciding whether lay
itself, occurring a week or more prior to the statements at issue, was startling for the purposes of Rule 803(2). See, e.g., United States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004) ("The time lapse in most excited utterance cases is usually a few seconds or a few minutes. In extreme circumstances, we have even accepted a delay of a few hours." (citations omitted)). But see United States v. Shoup, 476 F.3d 38, 43 (1st Cir. 2007) ("[T]he time-lapse delimitation on an 'excited utterance' . . . is by no means a bright-line test . . . .").
- 20 - opinion testimony is admissible under Rule 701. United States v.
Belanger, 890 F.3d 13, 25 (1st Cir. 2018) (quoting United States
v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012)) (explaining that
such discretion stems from the consideration that "a district court
has a vantage point far superior to our own when it comes to the
happenings and details of a particular case").
Mercado's testimony satisfies the three requirements of
Rule 701 -- and on appeal, Irizarry does not specifically argue
that any of the requirements are not met. As a close relative of
Minor Y who was directly observing her relevant non-verbal
expressions, Mercado needed no specialized knowledge to form an
opinion that was rationally based on her perception of Minor Y's
expressions. Moreover, her testimony was helpful to the jury in
interpreting what Minor Y meant by the combination of her shrug,
facial gesture, and sad smile, in a way that the jurors would not
necessarily be well-equipped to do themselves, as they were not in
the room at the time, nor were they intimately aware of Minor Y's
mannerisms and non-verbal expressions in the way that a close
relative might be. See United States v. Campos Flores, 945 F.3d
687, 709 (2d Cir. 2019) ("The Rule allows a lay opinion that
'affords the jury an insight into an event that was uniquely
available to an eyewitness. In this respect, the Rule recognizes
the common sense behind the saying that, sometimes, "you had to be
there."'" (quoting United States v. Garcia, 413 F.3d 201, 212 (2d
- 21 - Cir. 2005))). Mercado had interacted with Minor Y on numerous
occasions in the past; based off her prior experiences with Minor
Y, she held a unique insight into the meaning of Minor Y's
expressions, insight which she accordingly shared with the jury.
Mercado's testimony is the type of opinion encompassed within Rule
701.
As to Irizarry's Rule 704 argument, that rule of evidence
makes clear that an "opinion is not objectionable just because it
embraces an ultimate issue." Fed. R. Evid. 704(a). Mercado's
opinion did not address Irizarry's mental state -- which would
have been impermissible under the plain text of Rule 704(b) -- and
instead merely indicated that Irizarry had "hurt" Minor Y, not
that Irizarry had unlawfully transported Minor Y with the intent
to commit a criminal sexual act, as required by 18 U.S.C. §
2423(a). That Irizarry "hurt" Minor Y does not necessarily
implicate sexual activity -- it could implicate solely, for
example, bodily injury or emotional harm -- and thus the opinion
did not go to the ultimate issue of guilt on the relevant count.
Put in other words, "it is not even the ultimate issue in the case,
but only one of the subordinate issues of fact bearing upon the
ultimate issue." Mutual Life Ins. Co. v. Frost, 164 F.2d 542, 548
(1st Cir. 1947).
As to Irizarry's contention that Mercado's opinion
testimony went to the credibility of Minor Y, the sole case from
- 22 - our circuit that Irizarry cites in this section, United States v.
Shay, 57 F.3d 126, 131 (1st Cir. 1995), actually took a different
view of the Eighth Circuit case from which Irizarry quotes, Bachman
v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992). In Shay, we
rejected the argument that cases like Bachman required the
wholesale exclusion of any testimony concerning witness
credibility, and we instead explained that these cases stood for
the "more limited proposition" that testimony that "another
witness is lying or telling the truth is ordinarily inadmissible."
Shay, 57 F.3d at 131 (addressing expert opinion testimony). In
any event, Mercado's opinion testimony at issue did not go to Minor
Y's credibility, much less to the more limited question of whether
Minor Y was lying or telling the truth. Applying the standard of
review more favorable to Irizarry, we nonetheless hold that the
district court did not abuse its discretion in admitting Mercado's
opinion testimony.
IV. SENTENCING
Irizarry also appeals his sentence of 235 months'
imprisonment. We review a district court's sentence for
reasonableness, which involves both a procedural and substantive
inquiry. See United States v. Politano, 522 F.3d 69, 72 (1st Cir.
2008). "[W]e evaluate claims of unreasonableness in light of the
totality of the circumstances." United States v. Flores-
Machicote, 706 F.3d 16, 20 (2013) (citing Gall v. United States,
- 23 - 552 U.S. 38, 51 (2007)). We conclude that Irizarry's sentence was
procedurally and substantively reasonable, and therefore affirm
the district court's sentence.
A. Procedural Reasonableness
"In assessing the procedural reasonableness of a
sentence, we apply a 'multifaceted' abuse of discretion standard
in which 'we apply clear error review to factual findings, de novo
review to interpretations and applications of the guidelines, and
abuse of discretion review to judgment calls.'" United States v.
Reyes-Torres, 979 F.3d 1, 7 (1st Cir. 2020) (quoting United States
v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)). The Supreme
Court has explained that procedural errors considered significant
under this assessment include "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range." Gall, 552 U.S. at 51.
No such errors are found in Irizarry's case. Irizarry
primarily argues on appeal that the district court improperly
applied the 5-level enhancement for a "pattern of activity
involving prohibited sexual conduct" because the jury acquitted
Irizarry of Count Two, precluding the finding of such a pattern.
However, "[a]s the law now plainly stands, 'acquitted conduct, if
- 24 - proved by a preponderance of the evidence, . . . may form the basis
for a sentencing enhancement.'" United States v. Alejandro-
Montañez, 778 F.3d 352, 361 (1st Cir. 2015) (omission in original)
(quoting United States v. Gobbi, 471 F.3d 302, 314 (1st Cir.
2006)).7 The jury's acquittal of Irizarry on Count Two, on the
other hand, was based on a beyond-a-reasonable-doubt standard.
Irizarry's challenge to the enhancement amounts to an allegation
that the district court's factual findings on Count Two lack a
sufficient evidentiary basis, and here Irizarry cannot overcome
the high hurdle of clear error review and the deference we accord
the district court's factual findings -- and we see no reason to
disturb such findings.
The district court judge observed all of Minor Y's
testimony concerning the two alleged sexual assaults, as well as
the testimony of her neighbor and family members. That the judge,
by a preponderance of the evidence, credited her version of events
does not rise to the level of clear error. See United States v.
Cortez-Vergara, 873 F.3d 390, 393 (1st Cir. 2017) (noting that "a
7 The United States Sentencing Commission has proposed a Guidelines amendment that would prohibit judges from considering certain forms of acquitted conduct for sentencing purposes. See 88 Fed. Reg. 7180, 7224-7225 (Feb. 2, 2023). But we need not consider whether the amendment pertains to Irizarry's acquittal because the amendment remains pending. Carlton W. Reeves, Chair, U.S. Sentencing Comm'n, Remarks at the Public Meeting of the United States Sentencing Commission (April 5, 2023) ("We intend to resolve questions involving acquitted conduct [in 2024].").
- 25 - district court's choice between multiple permissible inferences
cannot be clearly erroneous"); United States v. Platte, 577 F.3d
387, 392 (1st Cir. 2009) (explaining that, under the clear error
standard, "we must honor such findings 'unless, on the whole of
the record, we form a strong, unyielding belief that a mistake has
been made'" (quoting Cumpiano v. Banco Santander P.R., 902 F.2d
148, 152 (1st Cir. 1990))). Finding no clear error committed by
the district court (and no overall abuse of discretion), we hold
that Irizarry's sentence was procedurally reasonable.
B. Substantive Reasonableness
We review a preserved challenge to substantive
reasonableness under an abuse of discretion standard. See United
States v. Murchison, 865 F.3d 23, 28 n.9 (1st Cir. 2017). "A
sentence is substantively reasonable so long as the sentencing
court has provided a 'plausible sentencing rationale' and reached
a 'defensible result.'" United States v. Sayer, 916 F.3d 32, 39
(1st Cir. 2019) (quoting United States v. Martin, 520 F.3d 87, 96
(1st Cir. 2008)).
The district court provided an ample and plausible
sentencing rationale and discussed explicitly the factors that
Irizarry complains were ignored or overlooked. Irizarry raised
each of these considerations at sentencing and simply rehashes
them on appeal. The district court adopted the PSR guideline
calculations and considered the § 3553(a) factors. The judge
- 26 - considered Irizarry's age and his health problems, explicitly
stating that "the Court has considered the effect that a prolonged
sentence of imprisonment could have on Mr. Irizarry’s health, as
well as the Bureau of Prisons’ ability to provide proper medical
care to the defendant under custody."
There was no error, much less an abuse of discretion, in
not weighing Irizarry's age and health issues as much as Irizarry
would have liked, and we decline to reweigh the sentencing factors
on appeal. See United States v. Rodríguez-Caraballo, 817 F.3d
391, 393 (1st Cir. 2016). The district court's downward variance
from life imprisonment to 235 months' imprisonment resulted in a
sentence that was, in the court's words, "sufficient and not
greater than necessary." See United States v. Floyd, 740 F.3d 22,
39-40 (1st Cir. 2014) ("When, as in this case, a district court
essays a substantial downward variance from a properly calculated
guideline sentencing range, a defendant's claim of substantive
unreasonableness will generally fail."). That the sentence
practically amounts to a life sentence, as Irizarry complains,
does not sway our decision. See United States v. Bunchan, 580
F.3d 66, 73 (1st Cir. 2009).
V. CONCLUSION
In light of the foregoing, we affirm Irizarry's
conviction and sentence.
- 27 -