United States Court of Appeals For the First Circuit No. 18-1679
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN JURADO-NAZARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch and Boudin,* Circuit Judges.
Johnny Rivera-González on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
October 30, 2020
* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). BOUDIN, Circuit Judge. Edwin Jurado-Nazario pled guilty
to two counts of Production of Child Pornography, see 18 U.S.C. §
2551(a) and (e), and two counts of Transportation of a Minor with
the Intent to Engage in Criminal Sexual Activity, see 18 U.S.C. §
2423(a). For these offenses, his plea agreement tentatively
calculated a prison term of 210 to 262 months.
The starting point for a district court's sentencing
determination "is the guideline range, not the parties'
recommendations." United States v. Cortés-Medina, 819 F.3d 566,
573 (1st Cir. 2016). Here, the district court made its own
calculations, resulting in a proposed sentence between 324 and 405
months. The court then granted Jurado-Nazario a downward variance,
citing his service in the United States Army, and sentenced him to
a prison term of 300 months.
Jurado-Nazario appealed, arguing that his sentence was
substantively unreasonable and that the government violated his
plea agreement by defending the sentence.
Before this court, Jurado-Nazario conceded that the
district court correctly calculated the applicable guidelines
range and that his sentence was procedurally sound, but he argued
that the district court abused its discretion, thus creating a
sentence that was substantively unreasonable, by impermissibly
balancing the sentencing "pros and cons." The government answered
that the sentence, twenty-four months below the applicable
- 2 - guidelines range, was substantively reasonable. Jurado-Nazario
responded that the government violated his plea agreement, in which
they agreed not to recommend a sentence higher than 235 months, by
defending the reasonableness of his 300-month sentence.
Breach of Plea Agreement. Although "arguments raised
for the first time in an appellate reply brief [are] ordinarily
deemed waived," United States v. Casey, 825 F.3d 1, 12 (1st Cir.
2016), an appellant's reply to an argument raised for the first
time in the opposing appellee's brief has not been waived, for the
appellant brought the issue to the court's attention "at the
earliest point when it was logical to do so." Holmes v. Spencer,
685 F.3d 51, 66 (1st Cir. 2012); see also Rivera-Carrasquillo v.
Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 228 n.29 (1st Cir.
2016); Alfano v. United States, 592 F. Supp. 2d 149, 153 (D. Me.
2008) (describing a case in which this court reviewed on the merits
an argument raised for the first time in the defendant's reply
brief because the argument was in response to a contention raised
for the first time in the government's brief).
Because Jurado-Nazario raised the argument that the
government violated the terms of his plea agreement "at the
earliest point when it was logical to do so," this court will not
"fault him for not having raised it sooner." Holmes, 685 F.3d at
66; see also Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d
25, 29-30 (1st Cir. 2015). "Whether the government has breached
- 3 - its plea agreement . . . presents a question of law, and our review
is de novo." United States v. Cruz-Vázquez, 841 F.3d 546, 548
(1st Cir. 2016) (citing United States v. Rivera-Rodríguez, 489
F.3d 48, 57 (1st Cir. 2007)).
A plea agreement is interpreted according to normal
contract principles. See United States v. Marín-Echeverri, 846
F.3d 473, 477-78 (1st Cir. 2017). This court has been "scrupulous
in holding defendants to the terms of the plea agreements that
they enter knowingly and voluntarily." United States v. Ortiz-
Santiago, 211 F.3d 146, 151 (1st Cir. 2000). But "[w]hen a plea
rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Cruz-Vázquez, 841
F.3d at 548 (quoting Santobello v. New York, 404 U.S. 257, 262
(1971)).
Jurado-Nazario's plea agreement calculated a total
offense level of 37, for which the guidelines recommend a prison
term of 210 to 262 months. In Jurado-Nazario's plea agreement,
the government allowed "the defendant to argue for a variant
sentence of incarceration as low as 15 years (180 months)" and
"reserve[d] the right to argue for a sentence of incarceration up
to 235 months (19.5 years)." App. vol. I, 22. Both sides then
promised that "no further adjustments or departures to the
- 4 - defendant's total offense level shall be sought by the parties."
App. vol. I, 23.
The government kept its promise. At the sentencing
hearing, the government resisted Jurado-Nazario's request for a
180-month prison term, emphasizing that Jurado-Nazario's crimes
involved four different victims and equating the good qualities
that Jurado-Nazario had put forward as potential mitigating
factors to those that a pedophile needs to gain a victim's trust.
On that basis, the Government suggested a prison term of 235
months, exactly the term promised in Jurado-Nazario's plea.
The government did not breach the plea agreement by
arguing before this court that Jurado-Nazario's sentence was
reasonable. Defending the district court's discretionary judgment
to impose a 300-month sentence does not violate the government's
promise to refrain from seeking "adjustments or departures to the
defendant's total offense level" or from recommending a sentence
of over 235 months. Those promises applied to the government's
recommendation at sentencing, not to a future appeal. Furthermore,
[a]s an appellee, the government is tasked, in effect, with defending the district court's judgment when a criminal defendant appeals.
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United States Court of Appeals For the First Circuit No. 18-1679
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN JURADO-NAZARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch and Boudin,* Circuit Judges.
Johnny Rivera-González on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
October 30, 2020
* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's opinion. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). BOUDIN, Circuit Judge. Edwin Jurado-Nazario pled guilty
to two counts of Production of Child Pornography, see 18 U.S.C. §
2551(a) and (e), and two counts of Transportation of a Minor with
the Intent to Engage in Criminal Sexual Activity, see 18 U.S.C. §
2423(a). For these offenses, his plea agreement tentatively
calculated a prison term of 210 to 262 months.
The starting point for a district court's sentencing
determination "is the guideline range, not the parties'
recommendations." United States v. Cortés-Medina, 819 F.3d 566,
573 (1st Cir. 2016). Here, the district court made its own
calculations, resulting in a proposed sentence between 324 and 405
months. The court then granted Jurado-Nazario a downward variance,
citing his service in the United States Army, and sentenced him to
a prison term of 300 months.
Jurado-Nazario appealed, arguing that his sentence was
substantively unreasonable and that the government violated his
plea agreement by defending the sentence.
Before this court, Jurado-Nazario conceded that the
district court correctly calculated the applicable guidelines
range and that his sentence was procedurally sound, but he argued
that the district court abused its discretion, thus creating a
sentence that was substantively unreasonable, by impermissibly
balancing the sentencing "pros and cons." The government answered
that the sentence, twenty-four months below the applicable
- 2 - guidelines range, was substantively reasonable. Jurado-Nazario
responded that the government violated his plea agreement, in which
they agreed not to recommend a sentence higher than 235 months, by
defending the reasonableness of his 300-month sentence.
Breach of Plea Agreement. Although "arguments raised
for the first time in an appellate reply brief [are] ordinarily
deemed waived," United States v. Casey, 825 F.3d 1, 12 (1st Cir.
2016), an appellant's reply to an argument raised for the first
time in the opposing appellee's brief has not been waived, for the
appellant brought the issue to the court's attention "at the
earliest point when it was logical to do so." Holmes v. Spencer,
685 F.3d 51, 66 (1st Cir. 2012); see also Rivera-Carrasquillo v.
Centro Ecuestre Madrigal, Inc., 812 F.3d 213, 228 n.29 (1st Cir.
2016); Alfano v. United States, 592 F. Supp. 2d 149, 153 (D. Me.
2008) (describing a case in which this court reviewed on the merits
an argument raised for the first time in the defendant's reply
brief because the argument was in response to a contention raised
for the first time in the government's brief).
Because Jurado-Nazario raised the argument that the
government violated the terms of his plea agreement "at the
earliest point when it was logical to do so," this court will not
"fault him for not having raised it sooner." Holmes, 685 F.3d at
66; see also Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d
25, 29-30 (1st Cir. 2015). "Whether the government has breached
- 3 - its plea agreement . . . presents a question of law, and our review
is de novo." United States v. Cruz-Vázquez, 841 F.3d 546, 548
(1st Cir. 2016) (citing United States v. Rivera-Rodríguez, 489
F.3d 48, 57 (1st Cir. 2007)).
A plea agreement is interpreted according to normal
contract principles. See United States v. Marín-Echeverri, 846
F.3d 473, 477-78 (1st Cir. 2017). This court has been "scrupulous
in holding defendants to the terms of the plea agreements that
they enter knowingly and voluntarily." United States v. Ortiz-
Santiago, 211 F.3d 146, 151 (1st Cir. 2000). But "[w]hen a plea
rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Cruz-Vázquez, 841
F.3d at 548 (quoting Santobello v. New York, 404 U.S. 257, 262
(1971)).
Jurado-Nazario's plea agreement calculated a total
offense level of 37, for which the guidelines recommend a prison
term of 210 to 262 months. In Jurado-Nazario's plea agreement,
the government allowed "the defendant to argue for a variant
sentence of incarceration as low as 15 years (180 months)" and
"reserve[d] the right to argue for a sentence of incarceration up
to 235 months (19.5 years)." App. vol. I, 22. Both sides then
promised that "no further adjustments or departures to the
- 4 - defendant's total offense level shall be sought by the parties."
App. vol. I, 23.
The government kept its promise. At the sentencing
hearing, the government resisted Jurado-Nazario's request for a
180-month prison term, emphasizing that Jurado-Nazario's crimes
involved four different victims and equating the good qualities
that Jurado-Nazario had put forward as potential mitigating
factors to those that a pedophile needs to gain a victim's trust.
On that basis, the Government suggested a prison term of 235
months, exactly the term promised in Jurado-Nazario's plea.
The government did not breach the plea agreement by
arguing before this court that Jurado-Nazario's sentence was
reasonable. Defending the district court's discretionary judgment
to impose a 300-month sentence does not violate the government's
promise to refrain from seeking "adjustments or departures to the
defendant's total offense level" or from recommending a sentence
of over 235 months. Those promises applied to the government's
recommendation at sentencing, not to a future appeal. Furthermore,
[a]s an appellee, the government is tasked, in effect, with defending the district court's judgment when a criminal defendant appeals. In our view, the government normally should be free, on appeal, to support a ruling of the district court even though a plea agreement precluded it below from arguing the position that underpins the ruling.
- 5 - United States v. Carbajal-Váldez, 874 F.3d 778, 786-87 (1st Cir.
2017) (footnote omitted).
Substantive Reasonableness. Jurado-Nazario was
sentenced to a 300-month sentence, rather than a 180-month sentence
as requested in his sentencing memorandum. An objection to his
sentence on the ground of substantive reasonableness is therefore
preserved. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766 (2020). Jurado-Nazario contends that the district court
abused its discretion when it impermissibly balanced the
sentencing factors in 18 U.S.C. § 3553(a), resulting in a
substantively unreasonable sentence. We review his challenge for
abuse of discretion, taking into account the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court adopted the pre-sentence report's
offense level of 41 and a criminal history category of I, which
indicated a sentencing range of 324 to 405 months in prison. Then,
noting Jurado-Nazario's military service, the district court
sentenced him to 300 months. Jurado-Nazario does not dispute that
the court adopted the correct guidelines range. Instead, he puts
forward mitigating factors that, he alleges, support an even
greater downward variance than the one the court awarded.
Jurado-Nazario claims that the court should have
fashioned a more lenient sentence because (1) he is a veteran who
served abroad in the US Army, (2) his family was abusive and
- 6 - neglectful to him as a child, (3) during his military service, he
suffered a traumatic brain injury and post-traumatic stress
disorder that triggered his resulting crimes, and (4) the
sentencing guidelines for child pornography are unduly harsh. But
the district court did not err. First, the district court took
his military service into account and granted a more lenient
sentence on that basis. Second, Jurado-Nazario admits that his
background was "vastly discussed" in court; "[t]hat 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." United States v. Clogston, 662 F.3d
588, 593 (1st Cir. 2011). Third, the district court conducted an
evidentiary hearing and then made a factual finding that there was
"no medical evidence" of a traumatic brain injury and no evidence
that proved a causal connection between PTSD and Jurado-Nazario's
criminal behavior. In the context of sentencing, we review factual
findings for clear error, see United States v. Carpenter, 781 F.3d
599, 622 (1st Cir. 2015), and here, the district court's findings
were not clearly erroneous.
Lastly, some do regard the guidelines for child
pornography as remarkably harsh considering that murder
convictions can yield shorter sentences. See, e.g., Clogston, 662
F.3d at 593 (calling the guidelines for child pornography cases
"very stern"). Ultimately, however, the sentencing guidelines
- 7 - reflect social attitudes and can be changed by the political
branches. Here, the district court chose a 300-month sentence,
taking into account both Jurado-Nazario's specific circumstances
and the fact that child pornography can expose victims to long-
term damage and must be deterred.
Affirmed.
- 8 -