UNITED STATES of America, Appellee, v. Patrik Ian ARSENAULT, Defendant, Appellant.
No. 15-1161
United States Court of Appeals, First Circuit.
August 10, 2016
Neither the probation officer who prepared the PSI report nor the district court, which accepted its filing, were parties to the plea agreement. The agreement was between Betancourt-Pérez and the United States Attorney‘s Office for the District of Puerto Rico, which has no control over the preparation or submission of the PSI report. In fact, in preparing a PSI report, the probation officer is expected “to exercise his independent judgment as to the application of the guidelines.” United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir. 1997). The PSI report therefore cannot be attributed to the prosecution, nor can the district court‘s consideration and acceptance of the report‘s independent recommendations be considered a breach of the parties’ agreement.
Betancourt-Pérez was thus sentenced within the parameters of the plea agreement‘s appeal waiver, and the plea agreement was not breached. Accordingly, we dismiss Betancourt-Pérez‘s appeal.
Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, and Thomas E. Delahanty II, United States Attorney, on brief, Portland, ME, for appellee.
Before LYNCH, THOMPSON, and BARRON, Circuit Judges.
THOMPSON, Circuit Judge.
Appellant Patrik Ian Arsenault, a school aide for special-needs students, pled guilty to sexually exploiting three minors, as well as transporting, receiving, and possessing child pornography. In his appeal, Arsenault challenges the 780-month (or 65-year) sentence given to him as unreasonable. After careful consideration, we find Arsenault‘s arguments without merit and, accordingly, affirm the sentencing determination of the court below.
BACKGROUND
A. Investigation and Underlying Offense
In the summer of 2013, law enforcement agents began an investigation of Arsenault after confirming child pornography had been uploaded to an image-sharing website from his home.1 Federal
A subsequent forensic review of Arsenault‘s hard drive revealed sexually explicit images of Arsenault with a third minor and also uncovered more than 7,500 images and more than 250 videos depicting prepubescent male children engaged in sexual acts with other children and/or adults. It was also learned that at least two of Arsenault‘s three victims were special-needs children under the age of twelve, whom Arsenault had been introduced to through his job as an aide for autistic children. On varying occasions, these two victims had been entrusted into Arsenault‘s overnight care, during which time he drugged and sexually abused them.
Arsenault was eventually indicted for the sexual exploitation of the three minors, as well as the transportation, receipt, and possession of child pornography. On July 8, 2014, Arsenault pled guilty to all six counts of the indictment: the sexual exploitation of the three minors in violation of
B. Sentencing Hearing
During his sentencing hearing, Arsenault again voiced no objections to the PSI, except for a request that the PSI clarify that the three minor victims were not actually his students. Nor did he raise any legal challenges to the recommended Sentencing Guidelines (the “Guidelines“) enhancements. The judge proceeded with his sentencing task. After hearing from the families of the victims and noting that he had reviewed the PSI, victim-impact statements, and support letters submitted on Arsenault‘s behalf, the judge calculated the appropriate Guidelines range. Finding a total offense level—after all enhancements had been tallied (more on these enhancements later)—of 43 and a criminal history category of I, the judge found the applicable Guidelines range to be life imprisonment.
However, the life sentence recommended by the Guidelines was higher than the statutorily authorized maximum sentences. Under the relevant statutes, the maximum statutory sentence for Counts I–III was 30 years each, the maximum statutory sentence for Counts IV and V was 20 years each, and the maximum statutory sentence for Count VI was 10 years. The judge therefore found the applicable range
Before imposing a sentence, the judge went on to discuss his sentencing rationale in detail. He explicitly stated that he had taken into consideration “each of the factors set forth in
DISCUSSION
A review for the reasonableness of a sentence is bifurcated, requiring us to ensure that the sentence is both procedurally and substantively reasonable. See United States v. Mendez, 802 F.3d 93, 97 (1st Cir. 2015). We ordinarily review both procedural and substantive reasonableness under a deferential abuse-of-discretion standard. United States v. Maisonet-Gonzalez, 785 F.3d 757, 762 (1st Cir. 2015), cert. denied sub nom. Maisonet v. United States, — U.S. —, 136 S.Ct. 263, 193 L.Ed.2d 194 (2015). However, when assessing procedural reasonableness, this Court engages in a multifaceted abuse-of-discretion standard whereby “we afford de novo review to the sentencing court‘s interpretation and application of the sentencing guidelines, assay the court‘s factfinding for clear error, and evaluate its judgment calls for abuse of discretion.” United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). If a party fails to preserve claims of error in the court below, these standards of review may be altered. Id. In such instances, review is for plain error. Id.
Arsenault appears to raise three arguments on appeal: (1) that the judge erred in applying numerous enhancements in his Guidelines calculation; (2) that the judge failed to adequately consider or explain how the 65-year sentence imposed did not violate the parsimony principle; and (3) that the 65-year sentence did in fact violate the parsimony principle.
The first and second appear to be unpreserved, procedural reasonableness challenges. See United States v. Nelson, 793 F.3d 202, 205-06 (1st Cir. 2015) (noting that procedural errors may include “failing to calculate (or improperly calculating) the Guidelines range,” “failing to adequately explain the chosen sentence,” and “failing to consider the
Arsenault‘s third challenge goes to the substantive reasonableness of his sentence. See United States v. Carrasco-De-Jesus, 589 F.3d 22, 29 (1st Cir. 2009) (discussing defendant‘s substantive reasonableness challenge for violation of the parsimony principle). As we have previously noted, the applicable standard of review for an unpreserved, substantive reasonableness challenge is “murky.” United States v. Perez, 819 F.3d 541, 547 (1st Cir. 2016) (citing Ruiz-Huertas, 792 F.3d at 228 (noting that it is unclear whether a substantive reasonableness claim must be preserved below to be afforded abuse-of-discretion review versus a tougher plain error review)). Here, however, it is not necessary to resolve this apparent incongruity. Arsenault‘s claim fails, even if we assume that the more favorable abuse-of-discretion standard applies to his substantive reasonableness claim.
We begin our review with Arsenault‘s procedural challenges.
A. Procedural Reasonableness
1. Guidelines Enhancements
Arsenault complains about the enhancements which upped his Guidelines range. Indeed, “failing to calculate (or improperly calculating) the Guidelines range” constitutes a procedural error. Nelson, 793 F.3d at 205. But Arsenault cannot demonstrate that an error occurred, let alone that the purported error was clear or obvious.
Here is what the sentencing judge did. First, he appropriately set the applicable base offense levels. Counts I–III were each subject to a base offense level of 32. See
The total combined offense level was properly calculated by taking the highest adjusted offense level (50), adding 3 levels pursuant to
With a total combined offense level of 43 and a criminal history category of I, Arsenault faced a recommended Guidelines range of life imprisonment. As mentioned before, because the life sentence was higher than the statutorily authorized maximum sentence for each offense, the final applicable range was 1,680 months, or 140 years, pursuant to
On appeal, Arsenault takes issue with a couple of aspects of the judge‘s calculations. However, none of his arguments carry the day.
First, Arsenault specifically challenges the following enhancements: (1) the two-level enhancement because the victims were in his custody, care or supervisory control (Counts I–III); (2) the two-level enhancement for committing a sex act by use of either force, threats or drugs, an intoxicant, or other similar substance without the persons’ knowledge (Counts I and II);4 (3) the two-level enhancement for distribution of pornography (Counts I–III); (4) the two-level enhancement for use of a computer (Counts IV–VI); and (5) the five-level enhancement for 600 or more images (Counts IV–VI).
Arsenault does not argue that the sentencing judge failed to recognize the advisory nature of the Guidelines or his broad discretion to impose a non-Guidelines sentence. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (holding that sentencing judges can vary from Guidelines ranges based on policy considerations, including disagreements with the Guidelines). Rather, Arsenault contends that these enhancements simply do not “make sense” or they punish him for “inherent” and “standard” features of child pornography, which, he suggests, are already factored into the base offense level. Generously construed, his arguments boil down to an assertion that the child pornography Guidelines are just bad policy and, as such, the sentencing judge erred in applying them when calculating his sentencing range. We disagree. As we have explained, a sentencing judge is free to agree with the Guidelines, even if a defendant finds them to be bad policy. Stone, 575 F.3d at 93 (noting that “part of the sentencing court‘s broad discretion must be the discretion to conclude that guidelines are convincing for various reasons, including that they reflect popular will.“).
Further, it is clear from the record that the sentencing judge simply declined to accept Arsenault‘s argument that he should diverge from the Guidelines recommendation because of the harshness stemming from the enhancements. Although the result is severe, we have typically upheld enhancements that capture indepen-
With regard to his second complaint, Arsenault challenges application of the following enhancements: (1) the four-level enhancement for sadistic or masochistic conduct (Counts I–II); (2) the five and three-level enhancements applied in calculating his combined offense level; and (3) the two-level enhancement because Arsenault knew or should have known that the victims were vulnerable (Counts I–II). Arsenault argues that these enhancements are “duplicative” (in other words, they result in double counting).
We have held that where “neither an explicit prohibition against double counting nor a compelling basis for implying such a prohibition exists, clearly indicated adjustments for seriousness of the offense and for offender conduct can both be imposed, notwithstanding that the adjustments derive in some measure from a common nucleus of operative facts.” United States v. Reyes-Rivera, 812 F.3d 79, 88 (1st Cir. 2016) (quoting United States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)). As for the contested enhancements, we are doubtful that they constitute double counting at all. But even if we assume that they do, Arsenault‘s claims still fail. Here, commentary to the enhancements for sadistic or masochistic conduct and for the calculation of the combined offense level (
2. Sentencing Explanation
Arsenault complains that the judge failed to adequately explain why a 65-year sentence, imposed on a defendant who is now in his twenties, does not violate the parsimony principle when considered with other
Because the district judge did not specifically address the concerns raised by the Presley court, Arsenault argues that the judge failed to consider all the relevant
What Arsenault‘s argument actually amounts to is faulting the judge for “not assign[ing] the weight to certain factors that [he] thought appropriate” and not taking into account specific considerations—such as the elderly-prisoner problem—which he finds relevant. Ruiz-Huertas, 792 F.3d at 227. Nevertheless, as we have said before, a judge has no obligation to assign weight to certain factors or considerations as a defendant deems necessary. See United States v. Rossignol, 780 F.3d 475, 479 (1st Cir. 2015) (“That the [appellant] would prefer an alternative weighing of the circumstances does not undermine the district court‘s sentencing decision.“); see also United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010) (concluding that the district judge‘s silence about a sentencing angle advocated by a party did not undercut the sentencing decision where the record “evinc[ed] a sufficient weighing of the
Nor can we conclude, as Arsenault urges, that the district judge plainly erred in not giving voice to his distinct concerns.
Moreover, the judge is not required to explain his consideration of
The record makes clear that the district judge explained his sentencing rationale in detail, explicitly noting his mindfulness of
With regard to Arsenault‘s personal history, the judge considered Arsenault‘s upbringing; the fact that he was sexually abused as a child; his extensive substance abuse history; and his education and work experiences, noting that Arsenault had a “long history of working with children” since he was 15. The judge further emphasized that despite knowing his compulsion and sexual attraction to young boys, Arsenault chose to work in a profession that
With regard to the nature of the offense, the district judge discussed the seriousness of the offense and the need to provide just punishment, and pointed out a series of aggravating factors including the exceptional vulnerability of the direct victims, the effects on the parents as a second class of victim, and society as a whole as a third class of victim. The judge remarked that over the course of his last 11 years on the bench, Arsenault‘s case “may well be the worst [child pornography case he had] ever seen.” The judge discussed the inculpating evidence found on Arsenault‘s hard drive including videos showing Arsenault having sex with two unresponsive, special-needs boys who had been entrusted to him for overnight care. The judge highlighted that Arsenault “selected out and chose these especially vulnerable boys as his victims“; that two of his victims were autistic; and that one victim was nonverbal, “which effectively meant he couldn‘t complain effectively” concerning the abuse inflicted upon him. The judge also underscored that not only did Arsenault drug, assault, and film his abuse of the children, he went on to trade the content he produced over the Internet, via a forum where the material can never be erased and cannot be undone.
The judge took into consideration the egregious and callous tone with which Arsenault described his actions. For example, the judge focused on Arsenault‘s own, cold descriptions of his abuse in which he described how “one of the victims, he seems to get uncomfortable. He started to squirm, and he started requesting all done.” Despite the child‘s requests, Arsenault continued to callously describe how he would “have to give [his victims] their sleep medications earlier” and how it was “all [he could] think about.” To make matters worse, Arsenault invited a trading partner via email to come abuse the children together with him stating “ha, ha, ha, well I tried a few different positions, although it would have been better if [the child] was more sedated” and “you really should come and join us next time.”
With regard to public protection, the judge noted that Arsenault‘s actions “erode[d] the confidence that we [as a society] have in each other” and that Arsenault‘s actions bred a lack of public trust concerning well-meaning male teachers entrusted to care for children. The court noted that “when someone like [Arsenault] ... cloak[s] himself in [the] great profession of [a teacher or aide] and then abuses the trust that comes with the profession, it casts an awful and unfair pall on the entire profession, particularly the men.” The judge thus found that it was necessary for Arsenault to “be placed away from contact with young boys for a long, long time so [he would] do no more harm.”
This thorough and detailed explanation was more than sufficient to satisfy the requirements of
To the extent Arsenault argues that his sentence is ultimately greater than necessary and therefore substantively unreasonable because of the elderly-prisoner problem, this argument mirrors his arguments already discussed above that his sentence violated the parsimony principle because the sentencing judge did not take into account the effects of his old age upon release in his consideration of deterrence, recidivism, and public safety factors. These corresponding substantive reasonableness arguments are equally unavailing.
A sentence is substantively sound and “will survive a challenge to its substantive reasonableness as long as it rests on a ‘plausible sentencing rationale’ and reflects a ‘defensible result.‘” Perez, 819 F.3d at 547 (citing United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)). Additionally, “reversals in substantive reasonableness challenges are particularly unlikely when ... the sentence imposed fits within the compass of a properly calculated [Guidelines sentencing range].” United States v. Hernández-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015), cert. denied, — U.S. —, 136 S.Ct. 522, 193 L.Ed.2d 411 (2015) (alterations in original) (quoting Ruiz-Huertas, 792 F.3d at 228-29). “When the challenged sentence falls within the recommended Guidelines range, the [appellant] must ‘adduce fairly powerful mitigating reasons and persuade us that the district judge was unreasonable in balancing pros and cons.‘” United States v. Batchu, 724 F.3d 1, 14 (1st Cir. 2013) (citing United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)).
Here, Arsenault appears to argue that because of the procedural errors alleged above, the judge ultimately sentenced him to an unduly harsh sentence that is substantively unreasonable. However, Arsenault fails to adduce any mitigating reasons powerful enough to persuade us that the judge was unreasonable in his judgment call. As discussed above, the judge explicitly stated that he considered his “obligation to impose a sentence that is sufficient, but no greater than necessary to achieve the purposes of the law” and thoroughly explained his plausible and defensible judgment call. Accordingly, we find no abuse of discretion in the sentencing judge‘s determination.
CONCLUSION
For the foregoing reasons, we affirm Arsenault‘s 780-month sentence.