United States Court of Appeals For the First Circuit
No. 24-2088
UNITED STATES,
Appellee,
v.
JESUS MALDONADO, a/k/a Juan Moreno, a/k/a William Hernandez, a/k/a Jesus Hernandez, a/k/a William Melendez,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Montecalvo, Lynch, and Dunlap, Circuit Judges.
Noreen McCarthy and The McCarthy Law Firm for appellant.
Lauren S. Zurier, Assistant U.S. Attorney, with whom Sara Miron Bloom, Acting U.S. Attorney, was on brief, for appellee.
June 2, 2026 LYNCH, Circuit Judge. Jesus Maldonado appeals from his
conviction after his unconditional guilty plea and his sentence.
He pled guilty to three counts charged in his superseding
indictment: attempting to entice a minor to engage in illicit
sexual activity, in violation of 18 U.S.C. § 2422(b); attempting
to transfer obscene material to a minor, in violation of 18 U.S.C.
§ 1470; and committing these offenses while a registered sex
offender, in violation of 18 U.S.C. § 2260A. The U.S. District
Court imposed a sentence of 447 months' imprisonment, within
Maldonado's Guidelines Sentencing Range ("GSR"), but also the
maximum sentence within that GSR.
Maldonado brings three arguments on appeal: (1) that he
was denied his Fifth Amendment right of due process based on
alleged prosecutorial misconduct in the grand jury proceedings;
(2) that he was denied his Sixth Amendment right to effective
assistance of counsel; and (3) that his sentence is procedurally
and substantively unreasonable. We reject all three. Maldonado's
guilty plea has waived his attack on the grand jury proceedings.
His ineffective assistance of counsel claim cannot be heard on
direct appeal and so is dismissed without prejudice. And
Maldonado has waived his procedural reasonableness challenges to
his sentence, so the only issue properly before us is the
substantive reasonableness of his sentence. We uphold his
sentence as substantively reasonable.
- 2 - I.
As "this appeal follows a conviction via [the
defendant's] guilty plea, we draw the facts from the plea colloquy
and sentencing materials." United States v. Vélez-Luciano, 814
F.3d 553, 556 (1st Cir. 2016) (citing United States v. Whitlow, 714
F.3d 41, 42 (1st Cir. 2013)).
In March 2019, Rhode Island State Police Detective Adam
Houston conducted an online child exploitation sting investigation
on the mobile social network site MocoSpace. Houston, who was a
member of the Internet Crimes Against Children Task Force, posed
as "Jenni," a fictional resident of Warwick, Rhode Island, whose
MocoSpace profile indicated she was 19 years old1 and featured a
profile picture of a female law enforcement officer age-regressed
to appear to be a juvenile. On March 13, 2019, Maldonado, who was
55 years old, sent a friend request to "Jenni" and initiated
contact with a message complimenting her profile picture. Houston
accepted Maldonado's friend request, Maldonado provided a phone
number, and Houston began texting Maldonado as "Jenni." Over a
two-day period, Maldonado and "Jenni" exchanged 714 text messages.
Within 23 minutes of beginning to text with Maldonado, Houston
informed Maldonado that "Jenni" was 13 years old. In reply,
1 In the criminal complaint filed by Houston on March 20, 2019, Houston reported that he knew "from education and experience that juveniles often will report their age to be over eighteen (18) in order to gain access to a particular website or application."
- 3 - Maldonado explicitly acknowledged "Jenni's" age was 13 and warned
her about men online that would "try[] to abuse and play games"
with girls, implying that he by contrast was trustworthy. At
numerous other times during the text exchanges, Houston sent
Maldonado messages that reinforced that "Jenni" was a 13-year-old
girl, including by responding to Maldonado's request to describe
herself with "[n]ot much to know. I'm 13, 7th grade"; telling
Maldonado that she was texting from school and would not be able
to chat later in the evening when her mom was home; and stating
that she would not be able to drive for three more years. After
"Jenni" told Maldonado that she was "kinda a loner" but had a best
friend named Miranda, Maldonado responded by asking her to not
"tell [her] friend for now."
Maldonado quickly initiated conversations about sex,
telling "Jenni" after an hour of texting that he "will make love
to you all night make you feel all my wife." Maldonado sent
increasingly graphic text messages over the two days, describing
the sexual acts he wanted to engage in with "Jenni" and asking her
to do the same. Maldonado sent "Jenni" sexually explicit
drawings, videos, and pictures of himself. He raised the prospect
of his driving from Connecticut to Rhode Island to have sex with
"Jenni" and asked her for details about where and when they could
meet.
- 4 - On the second day of texting, March 14, 2019, Maldonado
began soliciting "Jenni" to send him nude pictures of her vagina
from the school bathroom. Maldonado was dissatisfied with the
photo that "Jenni" sent in reply, and he requested additional
photos of "Jenni's" body on a bed. Toward the end of the exchange,
Maldonado grew suspicious about "Jenni's" identity, texted that he
was "scared I need to make sure who you are" and "[r]emember
anybody find out about you and me it's going to be a problem," and
requested a photo of "Jenni" making a specific gesture. Houston
was unable to produce an age-regressed photo in time, so he sent
a photo that was not age regressed. Maldonado responded, "[y]ou
look older I don't know the pictures you look like a little girl
and the other one here you look older," and stopped texting "Jenni"
later that night. During the two-day period that he exchanged
text messages with Houston as "Jenni," Maldonado was registered as
a sex offender, a requirement of his past convictions for sexually
assaulting minor females.
Houston filed a federal criminal complaint on March 20,
2019. On March 25, 2019, law enforcement officers arrested
Maldonado in Connecticut pursuant to that warrant and searched
Maldonado pursuant to search warrants for Maldonado's person, his
home in Connecticut, and his digital devices. At the time of
arrest, Maldonado possessed two phones, including the iPhone used
to exchange messages with Houston as "Jenni." As a registered sex
- 5 - offender, Maldonado could not have a cell phone without probation's
approval, which he did not have for the iPhone at issue. He
acknowledged the phone was in his name, but he claimed that it was
also used by his friend "Tarzan," and he denied that he had used
the phone to communicate with any juveniles online on MocoSpace or
other sites. That denial was undercut by his admission that the
photos sent to Houston as "Jenni" from the iPhone were of him, and
by the fact that his face unlocked the iPhone via its facial
recognition software and that the phone's passcode was his
birthdate.
A federal grand jury in the District of Rhode Island
indicted Maldonado on April 23, 2019, on three charges: attempting
to entice a minor to engage in illicit sexual activity, in
violation of 18 U.S.C. § 2422(b); attempting to transfer obscene
material to a minor, in violation of 18 U.S.C. § 1470; and
committing these offenses while a registered sex offender, in
violation of 18 U.S.C. § 2260A. On April 29, 2019, Maldonado
appeared before a U.S. Magistrate Judge to plead "not guilty" to
the original indictment, and the judge ordered that Maldonado
remain detained.
A federal grand jury for the District of Rhode Island
returned a four-count superseding indictment on May 24, 2023.2
2 Maldonado does not contest the government's assertion that "[g]iven the four-year lapse in time [between indictments], the
- 6 - The superseding indictment charged Maldonado with the three
offenses charged in the original indictment, as well as an
additional charge under 18 U.S.C. § 2251(a) of attempting to
sexually exploit a minor. In June 2023, Maldonado and the
government negotiated a plea agreement, in which the government
agreed to move to dismiss the added charge of attempting to
sexually exploit a minor and to "not bring any additional charges
based on the offense conduct in this case," in exchange for
Maldonado's guilty plea to the remaining counts. As to
sentencing, the plea agreement reserved the government's ability
to argue for an upward departure and/or variance from the GSR and
to recommend an imprisonment term greater than the higher of the
statutory mandatory minimum term or the high end of the GSR. It
reserved both Maldonado's and the government's ability to argue
and present evidence on all matters affecting the GSR calculations.
As to appeal, the plea agreement did not explicitly reserve any
right for Maldonado to appeal adverse determinations on pretrial
matters, making his guilty plea an unconditional one. Cf.
Conditional Plea, Black's Law Dictionary (12th ed. 2024) ("A plea
of guilty . . . entered with the court's approval and the
original and superseding indictments could not have been issued by the same grand jury," citing Federal Rule of Criminal Procedure 6(g), which provides that a grand jury "may serve more than 18 months only if the court . . . extends the grand jury's service," and that "[a]n extension may be granted for no more than 6 months, except as otherwise provided by statute."
- 7 - government's consent, the defendant reserving the right to appeal
any adverse determinations on one or more pretrial motions"). On
June 27, 2023, the district court accepted Maldonado's guilty plea
at a change-of-plea hearing.
Maldonado's PSR, filed on December 21, 2023, calculated
a GSR of 262 to 327 months of imprisonment for the first two counts
of attempting to entice a minor to engage in illicit sexual
activity, 18 U.S.C. § 2422(b), and attempting to transfer obscene
material to a minor, 18 U.S.C. § 1470, and 120 months of
imprisonment to run consecutively for committing those offenses
while a registered sex offender, 18 U.S.C. § 2260A. Together,
Maldonado's GSR for the three counts was 382 to 447 months of
imprisonment.
On October 25, 2024, Maldonado moved for a downward
variance from the GSR to the statutory minimum sentence of
240 months of imprisonment, arguing for a lesser sentence due to
his "significant developmental adversity throughout his life,"
including an abusive childhood, mental health challenges, and a
lack of education. The motion also argued that Maldonado "does
not exhibit a high risk for recidivism," relying on Maldonado's
September 26, 2024, clinical psychosexual evaluation, which he
characterized as stating that he had only a "moderate" risk of
reoffending.
- 8 - In its sentencing memorandum filed October 26, 2024, the
government recommended that Maldonado be sentenced to 447 months,
the maximum sentence within Maldonado's GSR. The government
argued that Maldonado's "more than twenty[-]year history of sexual
assaults, interest in, and hands-on offenses with minors . . . all
demonstrate that a lengthy sentence of incarceration is necessary
to protect the public, incapacitate the [d]efendant from visiting
future harm upon victims, and achieve the statutory purposes of
sentencing."
The district court held Maldonado's sentencing hearing
on November 12, 2024. It reviewed the GSR, to which neither side
objected, and accepted that calculation of the sentencing range.
During the prosecution's presentation of its sentencing
recommendation, the court asked whether it was "in essence" seeking
a life sentence, given that Maldonado would be nearly 100 years
old at the end of a 447-month sentence, and the government replied
in the affirmative. The district court then discussed the
18 U.S.C. § 3553 factors that it considered in imposing
Maldonado's sentence, explicitly discussing the factors of public
protection, the seriousness of the crime, Maldonado's personal and
criminal history, and the clinical evaluation and Maldonado's risk
of reoffending. The court acknowledged that Maldonado's childhood
was "right up there with one of the worst." But that did not
outweigh the other factors, the "most prominent of all of the
- 9 - factors" being the need to "protect the public from further crimes
by [Maldonado]." The court imposed a sentence of 447 months,
explaining that it agreed with "the [g]overnment's recommendation
of a guideline sentence, albeit at the high side," and that "a
total of 447 months is the appropriate sentence, again, primarily
to protect the public from any further crimes by [Maldonado] of
such a serious nature."
II.
A.
Maldonado's unconditional guilty plea has waived any
challenge to the grand jury proceedings as having been infected by
prosecutorial overreach. In Tollett v. Henderson, 411 U.S. 258
(1973), the Supreme Court considered a federal habeas corpus
petition of a state prisoner defendant who sought release by
arguing that the indictment to which he pled guilty was returned
by a grand jury that unconstitutionally excluded Black persons.
Id. at 259-60. The Court, reversing the Sixth Circuit, held that
a defendant's "guilty plea represents a break in the chain of
events which has preceded it in the criminal process" and that,
"[w]hen a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged,"
"he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea." Id. at 267. Tollett held that
- 10 - post-guilty plea, a defendant was limited to "attack[ing] the
voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was" constitutionally
deficient. Id.
The Supreme Court reaffirmed Tollett's holding in Class
v. United States, 583 U.S. 174 (2018), the Court's most recent
case defining the challenges that defendants may bring to
convictions after guilty pleas. In Class, the Court held that a
guilty plea does not waive a federal criminal defendant's challenge
to the constitutionality of the statute of conviction on direct
appeal, id. at 178, as such a challenge goes to "the [g]overnment's
power to criminalize [defendant's] (admitted) conduct" and was
"consistent with [defendant's] knowing, voluntary, and intelligent
admission [in his guilty plea] that he did what the indictment
alleged," id. at 181. Significant to Maldonado's appeal, the
Class Court contrasted these preserved claims of
unconstitutionality of conviction statutes with claims of
"case-related constitutional defects that 'occurred prior to the
entry of the guilty plea,'" which the Court reaffirmed are barred
under Tollett. Id. at 181 (quoting the discussion of Tollett in
Blackledge v. Perry, 417 U.S. 21, 30 (1974)).
The First Circuit has "assiduously followed the letter
and spirit of Tollett, holding with monotonous regularity that an
unconditional guilty plea effectuates a waiver of any and all
- 11 - independent non-jurisdictional lapses that may have marred the
case's progress up to that point." United States v. Cordero, 42
F.3d 697, 699 (1st Cir. 1994); see also id. at 698 (holding
defendant's guilty plea waived challenge to district court's
Fourth Amendment suppression ruling where the guilty plea "did not
expressly reserve any right of appeal with respect to the
antecedent suppression ruling"); United States v. Kitts, 27 F.4th
777, 785 n.5 (1st Cir. 2022) (defendant's "unconditional guilty
plea effectuate[d] a waiver" of defendant's challenge to the
adequacy of the information concerning the elements of the offenses
(quoting Cordero, 42 F.3d at 699)); United States v.
Casiano-Santana, 1 F.4th 100, 101 (1st Cir. 2021) ("[I]t is
long-settled law that a defendant who enters an unconditional
guilty plea waives the right to bring claims regarding
non-jurisdictional, pre-plea constitutional violations like the
denial of a suppression motion at issue here."); United States v.
Jackson, 118 F.4th 447, 455 (1st Cir. 2024) (rejecting defendant's
attempt to extend the appeal right reserved in his conditional
guilty plea, holding that "[v]irtually any and all
nonjurisdictional issues not explicitly preserved for appeal in
the conditional plea agreement . . . are deemed waived" (quoting
United States v. Adams, 971 F.3d 22, 30 (1st Cir. 2020))).
Maldonado's claim concerning the grand jury proceedings, which he
- 12 - does not contest was a non-jurisdictional lapse, is thus considered
waived under this line of First Circuit cases applying Tollett.3
We also note that Maldonado is simply incorrect when he
asserts that the circuits are split as to whether challenges to
grand jury proceedings are waived by a voluntary guilty plea, the
issue here. Compare United States v. Dewberry, 936 F.3d 803,
805-07 (8th Cir. 2019) (holding that a guilty plea waives the right
to bring a claim of improper denial of the right to
self-representation), and United States v. Moussaoui, 591 F.3d
3 Maldonado's arguments concerning grand jury proceeding improprieties fail for another reason: all rest on his characterization of the transcript of the grand jury proceedings that led to the original indictment. Maldonado has not put into the record on appeal the transcript for the grand jury proceedings that led to the second, superseding indictment to which he pled guilty. As the Supreme Court has highlighted, prosecutorial errors in an initial indictment's grand jury proceedings can be cured in the grand jury proceedings for a superseding indictment. See Blackledge v. Perry, 417 U.S. 21, 30 (1974) (noting that a constitutionally flawed "indictment of the sort alleged in Tollett could have been 'cured' through a new indictment by a properly selected grand jury"); Class v. United States, 583 U.S. 174, 181 (2018) (discussing waived "case-related constitutional defects that 'occurred prior to the entry of the guilty plea,'" which "could . . . , for example, 'have been cured through a new indictment by a properly selected grand jury'" (quoting Blackledge, 417 U.S. at 30)). Maldonado has presented no evidence that the so-called "misconduct" he alleges occurred in the original grand jury proceedings was not so cured. Maldonado attempts to shift blame to the government for his failure to submit a transcript of the grand jury proceedings leading to the superseding indictment, claiming it is withholding evidence that it was obligated as a matter of law to produce under the Jencks Act, but, on the contrary, the Jencks Act does not require the government to volunteer a copy of the grand jury proceedings and there is no record that Maldonado sought the transcript. See 18 U.S.C. § 3500.
- 13 - 263, 279-80 (4th Cir. 2010) (same), and Gomez v. Berge, 434 F.3d
940, 943 (7th Cir. 2006) (same), and United States v. Montgomery,
529 F.2d 1404, 1407 (10th Cir. 1976) (same), with United States v.
Hernandez, 203 F.3d 614, 626-27 (9th Cir. 2000) (holding an
improper denial of the right to self-representation renders a
subsequent guilty plea involuntary and so voids any guilty plea),
overruled on other grounds by Indiana v. Edwards, 554 U.S. 164
(2008). Maldonado mischaracterizes United States v. Williams, 29
F.4th 1306 (11th Cir. 2022), as discussing a circuit split on this
issue. The only circuit split Williams addresses relates to "the
question of whether an improper denial of a defendant's . . . right
to self-representation automatically renders a guilty plea
involuntary," which is not relevant here. Id. at 1314.
B.
Next, we quickly dispense of Maldonado's claims of
ineffective assistance of counsel, which are based on alleged
failure by Maldonado's trial counsel to seek dismissal of his
indictment and to object to the government's representations at
sentencing. Such "Sixth Amendment attacks on counsel are rarely
allowed on direct appeal because they require findings as to what
happened and, as important, why counsel acted as [they]
did -- information rarely developed in the existing record."
United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006).
Accordingly, this court has "held with a regularity bordering on
- 14 - the monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions."
United States v. Middleton, No. 24-1421, 2026 WL 1265732, at *10
(1st Cir. May 8, 2026) (quoting United States v. Reyes-Ballista,
146 F.4th 100, 113 (1st Cir. 2025)). "[A]n individual seeking to
press an ineffective assistance of counsel claim ordinarily must
raise it in a collateral proceeding brought in the district court
under 28 U.S.C. § 2255." Id. (internal quotation marks omitted)
(quoting Reyes-Ballista, 146 F.4th at 113).
We do the same here and decline to hear Maldonado's
ineffective assistance of counsel claim. The merits of the claim
cannot be decided on the record before us, nor does that record
show "significant indicia of ineffectiveness" that would justify
"remand[ing] the claim to the district court for necessary
fact-finding." Kitts, 27 F.4th at 784 (second quoting United
States v. Colón-Torres, 382 F.3d 76, 85 (1st Cir. 2004)). Thus,
we follow "our usual practice of requiring that" Maldonado's
ineffective assistance "claim be first raised in post-conviction
proceedings" and dismiss without prejudice. Id.
C.
Finally, Maldonado claims that his sentence was both
procedurally and substantively unreasonable. "Where challenges
are to the procedural and substantive reasonableness of a sentence,
our review process is bifurcated: we first determine whether the
- 15 - sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." United States v.
Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021) (alteration and
internal quotation marks omitted) (quoting United States v.
Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir. 2020)).
While "[p]reserved claims of sentencing error are
generally reviewed for abuse of discretion," "when a defendant
fails to contemporaneously object to the procedural reasonableness
of a court's sentencing determination, we review for plain error."
United States v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019). The
plain error standard requires a defendant to show "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the [appellant's] substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. (alteration in original)
(quoting United States v. Márquez-García, 862 F.3d 143, 145 (1st
Cir. 2017)).
Maldonado failed to raise his procedural objections
before the sentencing court, so they are not preserved. We
specifically note that he failed to preserve his argument that his
sentence was procedurally unreasonable because the court relied on
the prosecutor's representation that Maldonado had been
"troll[ing] the internet to groom children," because he made no
objection to that representation below. Even if he had, we doubt
- 16 - this comment was error (much less plain error). And in his appeal,
"[a]lthough [Maldonado] argues that the district court has erred
in numerous ways, he does not anywhere [in his sentencing argument]
cite the four-factor [plain error] test or attempt to establish
its latter three factors," "[e]ven after the government pointed
this deficiency out."4 United States v. Pabon, 819 F.3d 26, 34
(1st Cir. 2016). Thus, Maldonado "has waived review of his
forfeited claims" of procedural unreasonableness. Id. at 33.
We turn finally to Maldonado's challenge to the
substantive reasonableness of the length of his sentence, which is
the only issue properly before us. Maldonado's substantive
challenge to the length of his sentence is preserved by virtue of
his motion to the district court for a downward variance to the
statutory minimum sentence of 20 years. See Holguin-Hernandez v.
United States, 589 U.S. 169, 174-75 (2020) (holding that a
"defendant who, by advocating for a particular sentence,
communicates to the trial judge his view that a longer sentence is
4 In his reply brief, Maldonado asserted that "the [g]overnment incorrectly argues that [he] failed to preserve" the procedural sentencing challenges and that under Holguin-Hernandez v. United States, 589 U.S. 169 (2020), those challenges were preserved. But Holguin-Hernandez, which concerned a defendant's preservation of substantive challenges to sentencing, has no bearing on the issue of preservation of procedural reasonableness challenges; the Holguin-Hernandez Court explicitly declined to "consider the[] matter[]" of "what is sufficient to preserve a claim that a trial court used improper procedures in arriving at its chosen sentence." Id. at 175.
- 17 - 'greater than necessary' [under § 3553(a)] has thereby informed
the court of the legal error at issue," such that "an appellate
challenge to the substantive reasonableness of the sentence" is
preserved).
"We review preserved challenges to the substantive
reasonableness of a sentence for abuse of discretion." United
States v. Casillas-Montero, 152 F.4th 306, 327 (1st Cir. 2025).
"[W]e limit our review to the question of whether the sentence, in
light of the totality of the circumstances, resides within the
expansive universe of reasonable sentences," "recogniz[ing] that
although '[a] sentencing court is under a mandate to consider a
myriad of relevant factors, . . . the weighting of those factors
is largely within the court's informed discretion.'" United
States v. Contreras-Delgado, 913 F.3d 232, 239 (1st Cir. 2019)
(omission and third alteration in original) (first quoting United
States v. King, 741 F.3d 305, 308 (1st Cir. 2014); and then quoting
United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). At
bottom, "[f]or substantive reasonableness, the linchpin is 'a
plausible sentencing rationale and a defensible result.'" Id.
(quoting United States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir.
2011)).
Maldonado's "challenged sentence [i]s within a properly
calculated guideline range," so he "carries a particularly heavy
burden to 'adduce fairly powerful mitigating reasons and persuade
- 18 - us that the district judge was unreasonable in balancing . . .
despite the latitude implicit in saying that a sentence must be
reasonable.'" United States v. Candelario, 105 F.4th 20, 25 (1st
Cir. 2024) (some internal quotation marks omitted) (quoting United
States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)). We have
noted that "[i]n virtually all cases, a within-guidelines sentence
will be a defensible outcome." United States v. De Jesús-Torres,
64 F.4th 33, 42 (1st Cir. 2023).
Maldonado has offered no reasons, much less "fairly
powerful" ones, to think the district court erred in choosing the
highest sentence within Maldonado's GSR. Candelario, 105 F.4th
at 25 (quoting Madera-Ortiz, 637 F.3d at 30). Rather, Maldonado's
substantive unreasonableness arguments rest on misrepresentations
of the record. Maldonado argues that "[a] life sentence is out
of proportion as punishment for one instance of sending sexual
text messages to a fictitious minor" and "is per se substantively
unreasonable." But the district court did not impose the sentence
based on only one instance. The court based its decision also on
the past series of extremely serious instances of Maldonado's
sexual assault of children, "as serious a crime as we generally
see here in Federal Court." In light of this "history . . . of
very disturbed criminal actions on [Maldonado's] part over a number
of years," the district court concluded the 447-month sentence was
"sufficient but not more than necessary [to] protect the public
- 19 - from further crimes by [Maldonado]." That history, the district
court thoroughly explained, included Maldonado's three prior
convictions for sexual abuse of minors, his failure to register as
a sex offender when required to do so, and the fact that Maldonado
"w[as] offered . . . all of the services of . . . [p]robation
. . . [and] whatever treatment was available [with his past
convictions], and either it didn't work or [Maldonado] didn't use
it," as Maldonado "went right back to it rather quickly." To us,
Maldonado tries to emphasize that his latest conviction had been
eleven years prior to this offense, but that figure severely
misrepresents any gap in Maldonado's predatory actions, as
Maldonado had only been released from prison on March 27, 2017,
which was slightly less than two years before his messaging with
"Jenni" on March 13 and 14, 2019. And while "Jenni" was fictious,
the district court reasonably concluded that "there is little doubt
after [its] review of all the records that if there was a
13-year-old at the other end of [the text exchange with Officer
Houston], [she] would have been sexually abused."
Maldonado also argues that "the risk the defendant
presented to the public was much less than the court perceived,"
claiming that the district court "outright rejected the
defendant's submission of the expert's opinion [in the clinical
psychosocial analysis], that the defendant would benefit from
treatment and supervision and that he did not pose a risk of
- 20 - recidivism any higher than the average defendant." The district
court was not required to accept this characterization of
Maldonado's evaluation which, instead, estimated his reoffending
risk compared specifically to other adults convicted of sexual
offenses, not a so-called "average defendant." Further, the
sentencing transcript establishes the district court properly
weighed Maldonado's psychosexual evaluation, calling it
"insightful" and "incredibly helpful," while also reasonably
questioning and discounting the evaluation's purported
conclusions, especially in light of the failure of past supervision
and treatment to stop Maldonado's predatory actions. The district
court noted "that the [evaluation] doctor said that [Maldonado]
can be supervised when history [of Maldonado's past recidivism
despite probation services and supervision] tells us that
[Maldonado] can't." The court reasonably stated that it "d[id
not] take great comfort in the [evaluation's] distinction between
moderate and high risk . . . [as a] moderate risk of reoffending
scares the bejesus out of [it] on behalf of the kids."
Maldonado makes a close to frivolous argument5 that it
was "unnecessary and extreme" for the district court to take into
5 Maldonado compounds this with his argument that his sentence "violated the defendant's rights not to be subjected to an excessive sentence under the Eighth Amendment." (citing Solem v. Helm, 463 U.S. 277 (1983)). Unlike Maldonado's "claim that his sentence was unreasonably long," which is "adequately preserved" by his "argu[ment] for a more lenient sentence," this "specific,
- 21 - account his prior convictions for sexually assaulting minors when
devising his sentence, asserting that those prior convictions
"were accounted for by" the consecutive ten-year sentence imposed
under 18 U.S.C. § 2260A. The existence of § 2260A as a standalone
offense, however, does not impact the district court's latitude to
weigh, heavily, Maldonado's criminal history of repeatedly
sexually assaulting minors when devising the appropriate sentence
for all three counts to which Maldonado pled guilty.
III.
The sentence is affirmed.
substantive challenge[]" was "not raise[d] before the district court" and "thus [it is] unpreserved and plain error review applies." United States v. Colón-De Jesús, 85 F.4th 15, 25 (1st Cir. 2023); see also id. (finding defendant's specific substantive error claims, made for the first time on appeal, that the district court allegedly "fail[ed] to provide a case-specific rationale for its sentencing decision and . . . plac[ed] undue weight on the seriousness of the offense" were unpreserved). Maldonado did not argue the plain error standard in his opening brief, so this challenge is waived. Id.
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