United States Court of Appeals For the First Circuit
No. 23-1963
UNITED STATES OF AMERICA,
Appellant,
v.
CARLOS VÁZQUEZ-NARVAEZ,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. District Judge]
Before
Gelpí, Lipez, and Rikelman, Circuit Judges.
Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellant.
Peter J. Porrata for appellee.
April 9, 2025 LIPEZ, Circuit Judge. Defendant Carlos Vázquez-Narvaez
("Vázquez") pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). For that
offense, the probation office calculated a guideline sentencing
range of fifty-one to sixty-three months of imprisonment and five
years to life of supervised release. Although the district court
agreed that the guideline range had been correctly calculated, it
sentenced Vázquez to time served -- twenty-one days -- and seven
years of supervised release. The government now appeals, arguing
that this sentence is substantively unreasonable because it lacks
a plausible sentencing rationale. Concluding that the district
court did not adequately explain its basis for granting such an
extraordinary downward variance, we vacate and remand for
resentencing.
I.
Because this sentencing appeal follows a guilty plea,
"we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report
. . ., and the record of the disposition hearing." United States
v. Candelario, 105 F.4th 20, 21 (1st Cir. 2024) (quoting United
States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009)).
During an investigation of the digital filesharing
network BitTorrent, agents of the Federal Bureau of
Investigation's ("FBI's") San Juan field office discovered an
- 2 - account containing files of child pornography.1 The FBI identified
the Internet Protocol address associated with the account, which
it determined was registered to Vázquez. Based on that
information, the FBI obtained a warrant to search Vázquez's
residence. While executing the warrant, the FBI seized various
electronic devices, including a tablet that contained child
pornography.
Vázquez subsequently agreed to be interviewed by agents
and, in that interview, admitted to using his cell phone and tablet
to possess and view child pornography. The child pornography he
possessed, Vázquez further admitted, involved minors aged fourteen
to fifteen and sometimes as young as ten. He disclosed that he
had been watching child pornography for more than five years,
eventually viewing it daily for thirty to ninety minutes at a time.
He denied, however, having interacted with minors online or in
person. Vázquez admitted to possessing between 300 and 600 images
of child pornography. It was later determined that he possessed
more than 600 such images.
Vázquez was charged in a two-count indictment with
possession of child exploitation material in violation of 18 U.S.C.
1 BitTorrent is a peer-to-peer network whereby users create file-sharing folders that are accessible to other BitTorrent users. During their investigation, FBI agents downloaded from Vázquez's file-sharing folder twenty-seven files of child pornography that Vázquez had made available.
- 3 - § 2252A(a)(5)(B) and transportation of child exploitation material
in violation of 18 U.S.C. § 2252A(a)(1). He was arrested and
detained for five days before his bail hearing, at which point he
was granted release on conditions that included posting a $100,000
unsecured bond. After his bail hearing, Vázquez remained in jail
for another sixteen days before posting bond, resulting in a total
confinement period of twenty-one days.
Shortly thereafter, the parties entered into a plea
agreement, in which Vázquez agreed to plead guilty to count one,
possession of child pornography, and the government agreed to
dismiss count two, transportation of child pornography, which
carried a mandatory minimum sentence of five years. The parties
also agreed to recommend jointly a term of forty-eight months'
imprisonment for the possession count.2 The district court
accepted Vázquez's guilty plea at his change-of-plea hearing.
The probation office then submitted to the district
court a presentence investigation report ("PSR"), which calculated
a guideline sentencing range for the possession count of fifty-one
to sixty-three months of imprisonment and five years to life of
2 The recommendation of forty-eight months' imprisonment was premised on a calculated guideline sentencing range of forty-six to fifty-seven months. The parties calculated this range using a base offense level of eighteen, plus eight levels because of the specific offense characteristics, and minus three levels because of Vázquez's acceptance of responsibility for a total offense level of twenty-three.
- 4 - supervised release.3 The PSR also suggested that an
above-guideline sentence might be warranted because some of the
child pornography videos in Vázquez's possession were
substantially more than five minutes in duration.4 Moreover, the
report included impact statements from two victims depicted in the
child pornography that Vázquez possessed. Both victims detailed
the significant trauma they endured because of their exploitation,
including being subject to continued harassment, stalking, and
threats.
At the sentencing hearing, the parties requested that
the district court consider the plea agreement and the joint
recommendation that Vázquez be sentenced to forty-eight months of
imprisonment. During his allocution, Vázquez stated that he was
ashamed of what he had done and apologized to his family and
community as well as to the victims of the materials he "looked
3 The probation office used the same guideline calculation as the parties but included an additional one-level enhancement based on Vázquez's possession of more than 600 images of child pornography for a total offense level of twenty-four. The parties' calculation was premised in part on their belief that the offense involved between 300 and 600 such images. Moreover, based on his lack of prior convictions, the probation office determined that Vázquez's criminal history category was I.
4 The probation office attached to the PSR statistical information taken from the United States Sentencing Commission's Judiciary Sentencing Information database, which showed that of the 116 defendants in the previous five years with the same guideline, offense level, and criminal history category as Vázquez, ninety-five percent received a sentence of imprisonment, with a mean length of incarceration of thirty-seven months.
- 5 - at." He said that he hoped to receive a sentence that would allow
him "to rebuild [his] life with the appropriate help," which he
had "already started receiving, thanks to the authorities," and
would "continue receiving during [his] sentence."
The district court agreed that the probation office had
correctly calculated the guideline range of fifty-one to
sixty-three months and stated further that it had considered
Vázquez's background, the elements of his offense, the plea
agreement, and the sentencing recommendation of the parties.
Nevertheless, it determined that "the sentence in the plea
agreement is greater than necessary to fulfill the purposes of the
sentencing" factors of 18 U.S.C. § 3553(a) and thus found "that a
downward variance is appropriate in this case."
By way of explanation, the district court noted that
Vázquez had been "cooperative with law enforcement and the
[g]overnment by promptly agreeing to plead guilty" and had
"complied with the most restrictive bail conditions."
Additionally, the court emphasized that Vázquez had "commenced his
process of rehabilitation by" participating in "specialized
treatment for sex offenders." It then added that it "understands
that this progress may be tarnished with an interruption in
treatment to serve an imprisonment term." The court also explained
that "[t]he sentence to be imposed" would allow Vázquez "to begin
making restitution payments upon gaining employment." Finally,
- 6 - the district court stated that it was "giving credit to the fact
that" Vázquez "had no direct contact with the victims" and did not
engage in "production of child pornography, nor enticement."
After announcing its decision to sentence Vázquez to
time served plus seven years of supervised release, the district
court made the following comment:
Mr. [Vázquez], I have thought a lot about your sentence. And it is one of my first sentences as a district judge. I was a magistrate judge for almost 19 years, but as a magistrate judge, I did not sentence defendants in felonies. I have dealt with many child pornography cases as a magistrate judge, and this is my first child pornography case as a district judge. I do not want to undermine the seriousness of this offense, which is very serious. However, I have to credit the fact that it seems -- and I think you have done everything right [from the time] the investigation started until today to warrant the sentence I just imposed.
The government objected to the imposition of a
noncustodial sentence. It explained that the other offenses to
which the district court had compared Vázquez's offense --
producing child pornography and enticement -- carried statutory
minimum sentences of fifteen and ten years, respectively, and it
noted that the charge it dismissed as part of the plea agreement
carried a statutory minimum sentence of five years of imprisonment.
Thus, the government argued that the sentence imposed "is lower
than should be encompassed for these type[s] of cases that involve
- 7 - the possession of child exploitation material." This appeal
followed.
II.
The government argues on appeal that the district
court's sentence of time served "was substantively unreasonable"
because "it was premised on a lacking and implausible rationale."
While we would typically consider a district court's "fail[ure] to
adequately explain the chosen sentence -- including an explanation
for any deviations from the Guidelines range" -- to be a
"procedural error," Gall v. United States, 552 U.S. 38, 51 (2007),
we have recognized that the district court's sentencing rationale
"is also relevant to the substantive reasonableness inquiry,"
United States v. Crespo-Rios, 787 F.3d 34, 37 n.3 (1st Cir. 2015);
see also United States v. Flores-Nater, 62 F.4th 652, 655 (1st Cir.
2023) (describing "the hallmarks of a substantively reasonable
sentence" as "a plausible sentencing rationale and a defensible
result" (quoting United States v. Díaz-Lugo, 963 F.3d 145, 157
(1st Cir. 2020))). The government does not argue that the sentence
imposed was indefensible, only that its rationale was implausible.
We thus offer no opinion on the length of the sentence imposed --
apart from the justification for it.
A. The Explanation for the Sentence: The Relevant Law
A sentencing court is required to "state in open court
the reasons for its imposition of the particular sentence." 18
- 8 - U.S.C. § 3553(c). That requirement "serves multiple purposes: it
not only gives the defendant (and the public) an understanding of
why the defendant is receiving a particular sentence, but it also
'allow[s] for meaningful appellate review' and 'promote[s] the
perception of fair sentencing.'" United States v. Perez-Delgado,
99 F.4th 13, 21 (1st Cir. 2024) (alterations in original) (quoting
Gall, 552 U.S. at 50). While the sentencing court need not "offer
an explanation of its sentencing decision that is 'precise to the
point of pedantry,' the explanation must elucidate the primary
factors driving the imposed sentence." United States v.
Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020) (quoting United
States v. Sepúlveda-Hernández, 817 F.3d 30, 33 (1st Cir. 2016)).
Whether a court has adequately stated its reasons for
imposing a particular sentence is largely context dependent. As
the Supreme Court has explained, "[t]he appropriateness of brevity
or length, conciseness or detail, when to write, what to say,
depends upon circumstances." Rita v. United States, 551 U.S. 338,
356 (2007); see also United States v. Colón-Cordero, 91 F.4th 41,
50-51 (1st Cir. 2024) ("Just what kind of explanation is needed
depends on the context of each individual case." (citing Rita, 551
U.S. at 356)).
As relevant here, when the sentencing court imposes a
sentence outside the guideline sentencing range -- whether above
or below -- it must sufficiently justify that variance. See
- 9 - Perez-Delgado, 99 F.4th at 21. To do so, the court "must consider
the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance."
Gall, 552 U.S. at 50. "The justification presented should be
commensurate with the degree of the variance such that 'a major
[variance] should be supported by a more significant justification
than a minor one.'" Crespo-Rios, 787 F.3d at 38 (quoting Gall,
552 U.S. at 50); see also Flores-Nater, 62 F.4th at 655 ("As the
variance increases, so too does the district court's burden to
offer a sound justification for the sentence imposed.").
While "we have not mandated that a sentencing court
follow any particular format in explaining" a "variant sentence,"
Flores-Nater, 62 F.4th at 656, the court must include an
elucidation of "why the defendant's case 'differ[s] from the norm'
or 'the mine-run of' cases covered by the applicable" guideline,
Perez-Delgado, 99 F.4th at 21 (alteration in original) (quoting
United States v. Serrano-Berríos, 38 F.4th 246, 250 (1st Cir.
2022)). That said, the sentencing court's obligation may be
satisfied by an "explanation [that] can be gleaned 'by fair
inference' from the sentencing record." Flores-Nater, 62 F.4th at
656 (quoting United States v. Ortiz-Pérez, 30 F.4th 107, 114
(1st Cir. 2022)). "Nevertheless, our willingness to infer a
sentencing rationale has its limits." Perez-Delgado, 99 F.4th at
22.
- 10 - B. Applying the Law
By any measure, the downward variance in this case --
from fifty-one months (the low end of the guideline range) to
twenty-one days (time served) -- was extraordinary. See, e.g.,
Colón-Cordero, 91 F.4th at 46, 53 (describing a nine-month variance
on a guideline sentence of forty-six to fifty-seven months'
imprisonment as "significant . . . by any reasonable measure").
Accordingly, it was incumbent upon the district court to provide
a sentencing rationale that was correspondingly thorough and
cogent. See Gall, 552 U.S. at 50.
In arguing that the district court's explanation did not
meet these requirements, the government relies heavily on our
decision in Crespo-Rios, which it describes as "a largely analogous
case." In Crespo-Rios, the defendant engaged in sexually explicit
online communications over several months with an FBI agent posing
as a twelve-year-old girl. 787 F.3d at 35. The communications
included the defendant transmitting to the "minor" images of his
genitals, repeatedly encouraging "the 'minor' to engage in sexual
activities with him or for him," and asking "the 'minor' to meet
him, or to transmit images of herself" to him. Id. Based on those
messages, the FBI obtained a warrant to search the defendant's
home and computer, and during the execution of that warrant, agents
found the defendant in possession of "between 300 and 600 images
of child pornography." Id. The defendant pleaded guilty to
- 11 - knowingly attempting to transfer obscene material to a minor and
to knowingly possessing child pornography, for which the probation
office calculated a guideline sentencing range of seventy to
eighty-seven months of incarceration and five years to life of
supervised release. Id. at 35-36. Ultimately, as here, the
district court sentenced the defendant to time served -- thirteen
days -- and fifteen years of supervised release. Id. at 36.
On appeal, we noted that, in articulating its sentencing
rationale, "[t]he [district] court's exclusive focus was on the
personal history and characteristics of the defendant," and
specifically "the defendant's potential for rehabilitation and low
risk of recidivism." Id. at 37-38. Problematically, while the
court "mentioned that the 'offense' was 'very serious,' it did not
explain how it had factored that [seriousness] into its § 3553(a)
analysis. And the court offered no explanation about its ultimate
view on the need for general deterrence or the potential for
sentencing disparities." Id. at 37. Reasoning that the district
court's explanation was therefore "incomplete, and hence
inadequate, to justify the extent of the variance imposed," we
vacated and remanded for resentencing. Id. at 38-39.
The similarities between Crespo-Rios and the case before
us are striking.5 In this case, when explaining its decision to
5 In arguing in favor of the sentence imposed, Vázquez does not meaningfully contend that Crespo-Rios is inapt or otherwise
- 12 - vary significantly from the calculated guideline range, the
district court focused almost exclusively on Vázquez's efforts at
cooperation and rehabilitation following his arrest. Certainly,
the district court was entitled to consider those efforts, which
are relevant to Vázquez's character. See 18 U.S.C. § 3553(a).
However, as in Crespo-Rios, given the degree of the variance, the
district court could not rely solely on those efforts to justify
the sentence imposed. See 787 F.3d at 38. Instead, the court was
required to "explain how it had weighed the other factors laid out
in § 3553(a)" and articulate "why this particular sentence was
appropriate in light of" those other factors. Id.
Nevertheless, the district court did not explain how the
sentence imposed "reflects the seriousness of the crime[]
committed, avoids sentencing disparities, promotes general
deterrence, or promotes respect for the law." Id. As we explained
in Crespo-Rios, "[t]hese factors cannot be left out of the
sentencing calculus in cases like this," where the district court
varies so substantially, even if the court has found little to no
inapplicable. Nonetheless, we recognize that the facts of Crespo-Rios are distinguishable from and more egregious than the facts here, given that Vázquez did not have contact with minors. As noted, the defendant in Crespo-Rios engaged in sexually explicit online communications over several months with an FBI agent who the defendant believed to be a twelve-year-old girl. 787 F.3d at 35. That difference is not dispositive, however, given the clear parallels between the two cases both with respect to the crimes charged and the district courts' sentencing explanations.
- 13 - risk that the defendant before it will reoffend. Id. Reforming
the individual offender is not the only goal of sentencing.
Rather, "punishment is also meant to deter others, affirming the
seriousness of the crime and the penalties that others will likely
face and the difficulty of avoiding punishment." United States v.
Milo, 506 F.3d 71, 76 (1st Cir. 2007); see also United States v.
Goldberg, 491 F.3d 668, 672 (7th Cir. 2007) ("The logic of
deterrence suggests that the lighter the punishment for
downloading and uploading child pornography, the greater the
customer demand for it and so the more will be produced."). The
district court, with its focus solely on Vázquez's post-arrest
conduct, did not explain how its sentence was compatible with these
other important sentencing goals.
To be sure, the district court stated that it "d[id] not
want to undermine the seriousness of the offense, which is very
serious." But that brief comment said nothing about the "harm
inherent in the possession of child pornography" or caused
specifically by Vázquez's conduct. Crespo-Rios, 787 F.3d at 40;
see also Rivera-Berríos, 968 F.3d at 137 (holding that the district
court's "generic" reference to, among other things, "the
seriousness of the offense" could not "serve as [a] building
block[] for" a variance).
Our court and other circuits have emphasized the
substantial harm caused by the possession of child pornography.
- 14 - See, e.g., Crespo-Rios, 787 F.3d at 40; United States v. Robinson,
778 F.3d 515, 520 (6th Cir. 2015) ("Children are exploited,
molested, and raped for the prurient pleasure of . . . [those] who
support suppliers of child pornography." (omission and alteration
in original) (quoting United States v. Goff, 501 F.3d 250, 259
(3d Cir. 2007))); Goff, 501 F.3d at 259 (noting that individuals
who "possess child pornography directly contribute to [children's]
continuing victimization"). The devastating impact of this
offense on children cannot be overstated. In this case, the PSR
contained accounts from two child victims of the lasting harm to
them caused by the child pornography that Vázquez possessed --
harm that the district court did not mention. Indeed, "the
district court provided no explanation as to how any of this
weighed in its sentencing decision." Crespo-Rios, 787 F.3d at 40.
The notion that the district court accounted for the
seriousness of Vázquez's offense is also called into question by
the court's statement that it was "giving credit to" Vázquez for
not committing other serious crimes. True, Vázquez did not have
direct contact with the victims, and he did not produce the child
pornography himself. But the fact that he could have committed
additional, arguably more serious offenses in no way diminishes
the seriousness of the offense he did commit. See United States
v. Ramey, 721 F. App'x 135, 138 (3d Cir. 2018) ("[T]he possession
of child pornography alone, even absent any physical contact
- 15 - between the offender and a minor, is an extremely serious crime
that causes substantial harm.").
Moreover, the district court's comments on the factors
it expressly considered -- Vázquez's cooperation and potential for
rehabilitation -- do not justify the substantial variance.
Specifically, in articulating its consideration of those factors,
the district court pointed to nothing that would meaningfully
differentiate Vázquez from other first-time child-pornography
offenders. See Serrano-Berríos, 38 F.4th at 250 (explaining that
"the district court needed to 'articulate[] why it believed [the
defendant's] case differed from the norm'" (first alteration in
original) (quoting United States v. Del Valle-Rodríguez, 761 F.3d
171, 177 (1st Cir. 2014))).
For example, the district court explained that a
time-served sentence would allow Vázquez to "begin making
restitution payments upon gaining employment." As the government
points out, however, it is always true that a noncustodial sentence
would permit an offender to begin paying restitution more quickly
than a sentence of incarceration. This consideration therefore
does not place Vázquez's case outside the "mine-run" of
child-pornography-possession cases. Rivera-Berríos, 968 F.3d at
137.
In addition, the district court credited Vázquez for
cooperating fully after his arrest by quickly pleading guilty and
- 16 - complying with his bail conditions, telling him: "I think you have
done everything right [from the time] the investigation started
until today to warrant the sentence I just imposed." Although
Vázquez's post-arrest conduct was laudable, defendants are
expected to comply with the conditions of their release -- that
is, such conduct is not outside the norm. And the court's reliance
on Vázquez's post-arrest contrition seems to overlook that Vázquez
received a three-point reduction for accepting responsibility,
which included a one-point reduction for "timely notifying
authorities of [his] intention to enter a plea of guilty." Because
Vázquez's post-arrest conduct was "already accounted for by the
sentencing guidelines," the district court was required to
"indicate what makes that factor worthy of extra weight." Id. at
136 (quoting Díaz-Lugo, 963 F.3d at 155). The court, however, did
not explain how Vázquez's acceptance of responsibility was so
exceptional when compared to "the ordinary situation covered by
the guidelines calculation" as to justify the extent of credit
given. United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.
2006) (determining that the sentencing court's rationale for
varying upward based on the defendant's previous deportations was
"unpersuasive to support the magnitude of the increase" where the
guideline sentencing range incorporated "a two-level increase
applicable to a defendant . . . who has been deported . . . on one
or more occasions" (quoting U.S.S.G. § 2L2.2(b)(1))).
- 17 - The district court also stressed that the sentence
imposed would permit Vázquez to continue undergoing specialized
treatment for sex offenders, apparently believing that Vázquez's
"progress" in sex-offender treatment "may be tarnished with an
interruption in treatment to serve an imprisonment term." There
is nothing in the record, however, to suggest that Vázquez would
be unable to continue his treatment in prison. See United States
v. Demma, 948 F.3d 722, 730 (6th Cir. 2020) (noting that "the
prison system itself provides sex-offender treatment"). To the
contrary, Vázquez stated at sentencing that he believed he would
"continue receiving" treatment "during [his] sentence." Again,
the district court's sentencing explanation does not reveal why,
in this respect, it viewed Vázquez's case to differ from the norm.
See Serrano-Berríos, 38 F.4th at 250.
Although we have at times "filled in the gaps in a
district court's reasoning by looking to the arguments made by the
parties or laid out in the PSR," Crespo-Rios, 787 F.3d at 39, we
cannot do so here. Because the parties jointly endorsed the
forty-eight-month sentence of incarceration outlined in the plea
agreement, neither the government nor Vázquez submitted sentencing
memoranda or presented arguments on the factors about which the
district court was silent. What is more, the PSR submitted here
suggested that, based on the facts of Vázquez's case, an upward
-- not a downward -- departure might be warranted. We thus have
- 18 - no basis for inferring that the district court appropriately
considered the § 3553(a) factors when granting the extraordinary
variance in this case.
C. Conclusion
We do not suggest with the above analysis that the
district court was careless in imposing its sentence. The judge
noted that she was drawing on her years of experience as a
magistrate judge, during which she had handled many child
pornography cases, and she made clear that she had "thought a lot
about [Vázquez's] sentence." These sentencing decisions are
difficult, particularly in the first instance. We are mindful of
that reality. And we offer no opinion on whether the sentence
imposed, if supported by a more plausible and comprehensive
explanation, would be reasonable. The government has not asked us
to do so. We simply hold that the explanation provided was
insufficient to justify the extreme downward variance.
Accordingly, we vacate the sentence and remand for
resentencing consistent with the principles set forth herein.
So ordered.
- 19 -