UNITED STATES OF AMERICA, Appellee, v. BYRON MONTIJO-MAYSONET, Defendant, Appellant.
No. 18-1640
United States Court of Appeals For the First Circuit
September 1, 2020
Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Jessica E. Earl, Assistant Federal Defender, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Defender, Supervisor, Appeals Section, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
HOW THE CASE GOT HERE
The Two “Vueltas”
It all started in November 2015, when Montijo‘s cohort, Luis Meléndez (a/k/a “Puky“), met CAP (his cousin‘s daughter) at a family birthday party.2 She had just turned fourteen and started еighth grade at Marchand Middle School, a school for seventh to ninth graders in Manatí, Puerto Rico. The two struck up a chat and, before they left, exchanged contact info so Meléndez could write to CAP on KIK, an instant messaging app. A few days later,
Meléndez messaged CAP and they made plans to meet again, this time without her family knowing. In the meantime, Meléndez found CAP‘s friend DPP on Facebook and looped her into a group chat. DPP was thirteen years old and also in eighth grade. On a Friday, Meléndez, CAP, and DPP used KIK to plan to meet the following Monday (November 24, 2015) at the middle school and drive to a motel.
As planned, when they got to school on Monday, CAP and DPP walked to a nearby
Montijo drove. First, they stopped at a housing project, where the men asked the children if they “wanted to smoke or drink anything.” Then, Montijo drove to a motel called “El Jackeline,” a secluded joint tucked away on a long road off of Route 2 and surrоunded by a hedge and a concrete wall. The motel didn‘t charge an overnight rate. Instead, guests could pay twenty dollars to use a room for six hours. To rent a room, you pull into a garage next to a cabana, put the money in a drawer, and enter the room. An employee looks through a peephole at the gate to see the car‘s license plate number and record the plate number, the room number, and the time of arrival — all without seeing the guests. The motel room itself (at least the one Montijo used) is a 200-square-foot unit with two plastic chairs, a bathroom, and a double bed surrounded by mirrors. The whole set up (the motel‘s owner later testified) is designed to ensure guests’ “privacy.”
Once they got there, things happened “fast,” DPP testified. Montijo and Meléndez rented two cabanas, and Montijo pulled the car into a garage next to one of them. Meléndez and CAP went into one room, and Montijo and DPP went into another. Once in the bedroom, Montijo “quickly told me that I didn‘t have to do anything I didn‘t want to,” DPP later recounted. They sat down on the bed and Montijo told her that “he liked [her] hair, [her] eyes.” In the other room, Meléndez had sex with CAP. Then, CAP and Meléndez called DPP to tell them they‘d “finished,” and they all met back at the car.
Montijo drove the girls back to the school. Once they got there, Montijo and Meléndez made sure to stay out of sight. Instead of driving DPP and CAP to the school‘s front door, the men dropped them off one street away — according to CAP and DPP, so “the teachers and people from the school” wouldn‘t see the defendants. After that, CAP never spoke to Meléndez or Montijo again.
But over the next week, Montijo used KIK to keep in touch with DPP. At trial, DPP testified that they “didn‘t talk about anything specific. It was just that [Montijo] wanted to see [her] again.” Soon, another “group [chat] was formed,” this time among Meléndez, Montijo, and DPP. “[O]nce [the chat] was opened, the first thing” Meléndez said was that DPP should “bring in [an]other person.” In context, DPP took this to mean “another girl.” So she added her friend KVM to the group chat. KVM was also thirteen and in eighth grade. With KVM added, Meléndez, Montijo, and DPP all said they “wanted to do another outing,” meaning another “ride.” They used the word “vuelta” in Spanish (the same word they‘d used before). And they planned to “meet in the same way” as last time: Montijo and Meléndez would pick the girls up at the food truck and drive them back to the motel.
So, on November 30, 2015 (six days after the first outing), Montijo and Meléndez took DPP on another drive, this time with KVM. That morning, after DPP‘s mother dropped her off at school, she and KVM met Montijo and Meléndez at the same food truck. They were both in school uniform, and DPP had her schoolbag. After Meléndez “introduced himself to [KVM],” Montijo drove them once more to the housing project, where (once again) the men asked the children if they “wanted to drink anything or smoke anything.” Then he drove to the same motel. On the way
At that point — in a scene Montijo made the centerpiece of his defense — DPP testified that she “took out [her] notebook,” and Montijo “saw [her] grade” (which was presumably written on the notebook) and “asked [DPP] how old [she] was.” DPP said thirteen. Montijo was “shock[ed]” (shocked!), he tells us. Meléndez and CAP had told him she was sixteen and told DPP that Montijo was twenty. Montijo told DPP that he was really twenty-eight, and that if he‘d “known thаt [she] was [thirteen], he wouldn‘t have done it.” But he assured her he would “wait for [her] to come out of high school” and “was going to take care of [her].”
Montijo and DPP then went to the cabana next door, where they saw Meléndez and KVM naked on the bed. DPP went into the room and “took the money . . . that was right next to [Meléndez],” which she‘d been told to take to Montijo. Just then, Meléndez‘s phone rang. DPP answered it. On the other line, CAP warned that the school had noticed they were gone and the police were waiting there. DPP hung up and gave Montijo the news. Once Meléndez and KVM got dressed, the men (with Montijo driving) drove the girls to a Burger King for an alibi — “so [they] could say” that they‘d “been eating.”
After the pit stop, Montijo drove the girls back to school, where KVM‘s father was waiting. He ran toward the car. KVM got out, but before DPP could follow, Montijo sped off. He drove to a house, where Meléndez spoke to a man DPP didn‘t know. The man ushered the three of them (Montijo, Meléndez, and DPP) into a van and drove them back to the housing project, where they waited “for things to calm down.” When the coast seemed clear, another man drove Montijo and DPP to a street near the school, where they droрped off DPP.
The Trial
A federal grand jury indicted Montijo and Meléndez on a slew of sex crime charges. Specifically, count one charged that Montijo “used a facility and means of interstate commerce, namely the cellular phone application ‘KIK,’ to knowingly persuade, induce, entice, and coerce a 13-year-old minor female [DPP] to engage in sexual activity for which any person may be charged with a criminal offense under the laws of . . . the Commonwealth of Puerto Rico,” which violated
The indictment charged Meléndez under the same statutes and added four unrelated charges against him for producing child pornography, which agents had found stored on his cell phone when they searched it.3 Before long, Meléndez entered a plea deal with the government and copped to one count of producing child pornography. In exchange, the government
Montijo went to trial.4 To provе its case, the government called CAP, DPP, the motel owner (to describe the joint), KVM‘s father, and several government agents from the Department of Homeland Security Investigations (HSI) task force who‘d investigated the case. CAP told the jury how she met Meléndez at the family party and narrated the first drive to the motel, when Meléndez had sex with her. Then DPP recounted both drives, the KIK chats, and how Montijo had sex with her on the second trip to the motel. By the end of her testimony, when she
described how Montijo told her he‘d “wait for [her] to come out from high school” and “take care of [her],” DPP broke down sobbing.
In his defense, Montijo did not dispute DPP‘s story or try to undermine her testimony. He agreed that the two went on a “blind date” set up by Meléndez, and that on the second “date,” they “had sex” (quotes from his lawyer‘s opening statement). But he claimed that he thought DPP was older. During DPP‘s cross examination, Montijo‘s lawyer got her to describe Montijo‘s reaction to the notebook (“If I knew you were thirteen I wouldn‘t have done it“) and hammered that line home in her statements to the jury.
Among other witnesses, the government called HSI Special Agent Jose García, who testified he took Montijo‘s phone during the arrest аnd sent it to forensics to extract the data. Then, over Montijo‘s objections (more on them later), Task Force Officer Kimbelly Pérez-Morales took the stand to identify the report showing the texts found on Montijo‘s phone. As Officer Pérez explained, the report showed that on the morning of November 24, 2015, before the duo picked up DPP and CAP for the first motel trip, Montijo texted Meléndez to ask what he was wearing to meet the girls — a pair of “white Nike shorts, a tank top and white Nike tennis shoes,” answered Meléndez. Before they left, Meléndez texted Montijo, “Broooo you are horny like a dog. hahahaha.”5 He told Montijo they were “leaving at about 7:55” and that “[w]e have to take them [back] before 11.” Meléndez explained: “we have to leave these girls before others from Marchand” (the middle school) “are out at noon and catch us. Hahahaha.”
The jury found Montijo guilty on all counts. The judge denied Montijo‘s motions for judgment of acquittal and sentenced him to 198 months in prison. Montijo now appeals.
OUR TAKE
Sufficiency
We start with Montijo‘s sufficiency challenges, which he mounts against each
government didn‘t prove he intended CAP or KVM to have sex with Meléndez when he drove them to the motel. Montijo argues — as he must to show insufficiency — that these holes in the government‘s case mean that no rational jury could have found “beyond a reasonable doubt” that the government “proved the essential elements of the crime.” United States v. Dwinells, 508 F.3d 63, 72 (1st Cir. 2007). If Montijo is right, we must order acquittal. See Burks v. United States, 437 U.S. 1, 18 (1978) (holding that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient“). So we tackle these challenges first and take them in order.
Count One: Enticement
To prove the first count, the government had to show that (as charged in the indictment) Montijo used KIK, a “means of interstate commerce,” to “persuade, induce, entice, or coerce” DPP to “engage in any sexual activity for which any person can be charged with a criminal offense.”
Montijo‘s opening shot takes aim at the first element: he urges that “no evidence, other than” DDP‘s “uncorroborated” testimony, showed that he used KIK to chat with her. But even uncorroborated testimony can suffice to sustain a conviction. See United States v. Gaudet, 933 F.3d 11, 15 (1st Cir. 2019) (holding a minor victim‘s uncorroborated testimony sufficed); United States v. Cortés–Cabán, 691 F.3d 1, 14 (1st Cir. 2012) (explaining that “[w]e repeatedly have held that” even “‘the uncorroborated testimony of a cooperating accomplice may sustain a conviction so long as that testimony is not facially incredible‘” (quoting United States v. Torres–Galindo, 206 F.3d 136, 140 (1st Cir. 2000))). And here, DPP‘s story wasn‘t uncorroborated; CAP backed it up, telling the jury that Montijo and DPP texted each other while CAP chatted with Meléndez. And DPP‘s story went unrebutted. So the jury could easily have bought it.
Even so, Montijo argues, the messages DPP testified he sent over KIK — that he “wanted to see [DPP] again” and to go on another “vuelta” to the motel, which they planned on the app — were not “coercive or enticing in nature.” He points out that in our cases applying
discrete sex, where the men each paid $20 for a few hours and coupled off with one of the girls. Once alone in the bedroom, Montijo wooed DPP — told her she had “beautiful eyes and hair” — and assured her she “didn‘t have to do anything [she] didn‘t want to,” а ploy (the jury could‘ve thought) to gain her trust. Meanwhile, CAP and Meléndez actually had sex in the other room (something Meléndez and CAP likely told their companions about, the jury could reason). And before all this went down, Meléndez had told Montijo he was “horny like a dog.” Jurors don‘t have to check “common sense” or “mature experiences” at the courthouse door. United States v. Hernandez, 995 F.2d 307, 314 (1st Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992)). With that context in mind, the
Which brings us to Montijo‘s last attack on the enticеment count. Montijo argues that to prove he “knowingly” enticed or induced DPP to have sex “for which [he could] be charged” under Puerto Rico law, the government had to prove he knew DPP was under sixteen years old (the Puerto Rico age of consent,
induces, entices, or coerces’ — as well as to the object — ‘a person who has not achieved the age of 18 years‘“). The trial judge held that our decision in Dwinells puts us on the Seventh and Ninth Circuits’ side of the split; and as a result, he held that the government had to prove Montijo knew DPP was under eighteen. See United States v. Montijo-Maysonet, 292 F. Supp. 3d 568, 569 (D.P.R. 2018) (citing Dwinells, 508 F.3d at 68, 71 (concluding that
But even if Montijo is right on the law — an issue we don‘t decide — the
In his defense, Montijo stresses his reaction when DPP told him she was thirteen: he exclaimed that Meléndez had told him she was older, and that he “wouldn‘t have done it” if he‘d known her real age. But given the swell of other proof washing over them, the jurors could have reasonably found that Montijo‘s protestations just confirmed he knew DPP was underage. Conscious he broke the law (they could have inferred), he feigned shock to cover his own hide, hoping DPP would buy it and vouch for him if the cops found out. In short, the jurors didn‘t have to believe the excuse Montijo gave DPP. Such credibility determinations are “uniquely” theirs (not ours) to make. See United States v. Rivera-Ruiz, 244 F.3d 263, 268 (1st Cir. 2001).
The Transportation Counts
Undeterred, Montijo moves to the four
On that score, he first claims that that statute requires travel “in interstate or foreign commerce with respect to [Puerto Rico],” and doesn‘t cover rides from schools to motels within the island‘s borders. But we recently rejected that argument, holding Puerto Rico is a “commonwealth” within the meaning of the Act. See Cotto-Flores, 2020 WL 4582283, at *7–9;
Ordinarily, a law survives an equal protection challenge if the distinction it draws is “rationally related to a legitimate government interest.” United States v. Vaello-Madero, 956 F.3d 12, 18 (1st Cir. 2020) (quoting U.S. Dep‘t of Agric. v. Moreno, 413 U.S. 528, 533 (1973)). Montijo urges that in this case, our review should have more
As Montijo concedes, he did not raise this claim below, so we review it for plain error — a “demanding” uphill climb. United States v. Ríos-Rivera, 913 F.3d 38, 43 (1st Cir. 2019). To scale its heights, Montijo had to identify “controlling precedent” that made it “indisputable” that
Amendment. Id. (quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016)). He hasn‘t done so. To be sure, it‘s crystal clear a law targeting people of Puerto Rican origin would draw the strictest scrutiny. See DiMarco-Zappa, 238 F.3d at 36. But
Therefore, in Rios-Rivera, we rejected the same argument Montijo raises — that
Having struck out swinging at the statute itself, Montijo turns back to the facts. As the judge instructed, to prove the four
This claim has two parts. First, Montijo raises another mistake-of-age argument: that he did not know the girls were under sixteen (Puerto Rico‘s age of consent, remember) when he drove them to the motel. We‘ve already held that to convict under
Second, Montijo urges that even if he can‘t raise a mistake-of-age defense — or even if the evidence showed he knew the girls were too young — the jury could not have concluded he intended all three to have sex once they got to the motel.
Once again, however — even if Montijo is right on the law (an issue we need not decide) — the jury had ample proof that he knew the victims were each under sixteen, and that he intended they‘d have sex with one of the men when he took them to El Jackeline. In case you forgot: as to their age, the girls’ child-like looks and the school they emerged from were dead giveaways, the jury could‘ve found. If that didn‘t tip off Montijo, Meléndez‘s instructions — to drop them off at the school before noon so staff wouldn‘t “catch us” — would have raised some red flags. So did the school uniforms DPP and KVM wore on the second trip. Rounding things off, Montijo‘s evasive behavior — dropping the girls off down the street from the school so staff wouldn‘t see them — would have shown he got the picture. See Pueblo v. Alicea Hernandez, 2014 WL 7500964, at *19 (P.R. App. Ct. 2014) (finding sufficient evidence to reject mistake-of-age defense under § 5191(a) where defendant met a 15-year-old at school and took her to a motel, where she hid in the back of the car to avoid being seen). And as for intent, between Meléndez‘s texts (calling Montijo “horny“), Montijo‘s flirting (telling DPP she had pretty hair and eyes), the offers to give the girls smokes and drinks, and, oh right — the two drives to a sex motel — the jury had what it needed to convict. See United States v. Ray, 831 F.3d 431, 434 (7th Cir. 2016) (holding that defendant‘s actions in offering minor alcohol and marijuana, checking into a motel room for a four-hour stay, and having sex with the minor sufficed to show his intent to have sex with her); see also United States v. Morales-de-Jesus, 372 F.3d 6, 21 (1st Cir. 2004) (explaining that “[w]hen a plausible read of the record supports the verdict, we will not overturn the jury‘s determination on appeal“).
Officer Perez‘s Testimony
Having lost his sufficiency challenges, Montijo launches a procedural attack. He
In the world of evidence, there are two kinds of witnesses: lay witnesses and experts. To give an expert opinion, a witness must be “qualified” by “knowledge, skill, experience, training, or education” to do so, and the judge must vet the opinion to ensure it‘s “reliable.”
(a) rationally based on the witness‘s perception; (b) helpful to clearly understanding the witness‘s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702 .
As best we can tell, Montijo urges that two opinions Perez gave relied on expert knowledge.10 First, Perez identified words on a spreadsheet (a/k/a, an “extraction report“) as the text messages Montijo exchanged with Meléndez, which agents extracted from Montijo‘s cell phone. The government argues Perez‘s “testimony was limited to the fact that . . . she had seen the data extraction report from Montijo‘s cell phone and recognized it in court.” In fact she went further than that: she identified certain texts (e.g., “what are you wearing“) as messages sent from
Montijo to “Puky” (Meléndez‘s nickname, remember) and other texts (e.g., “you are horny like a dog“) as sent from “Puky” to Montijo. She also testified to the date and time the texts were sent. To do so, however, all she did was to read from the report, which labeled each string of text as an “SMS message” “to Puky” or “from Puky,” with the date and time. Montijo does not explain why this testimony required “scientific, technical, or specialized knowledge.” And we conclude it didn‘t.
These days, most anyone with a cellphone knows they store information about text messages, including the sender, recipient, and content. You don‘t need to be a software engineer to pick up a cellphone, open a messaging application, and interpret the words in the bubbles as messages sent and received. In doing so, ordinary people rely on a “process of reasoning familiar in everyday life,” not any expert knowledge about software coding or cellphone circuitry. If Officer Perez had opened Montijo‘s phone and taken screenshots of his conversations with Meléndez, no one suggests she‘d need any “scientific, technical, or specialized knowledge” to identify them as text messages. See United States v. Ganier, 468 F.3d 920, 926 (6th Cir. 2006) (noting that certain “[s]oftware programs . . . may be as commonly used as home medical thermometers,” such that “[t]he average layperson today may be able to interpret the[ir] outputs . . . as easily as he or she interprets everyday vernacular“).
In this case, investigators used forensic software to copy that same info from Montijo‘s phone and display it on paper. To be sure, most of us don‘t see “extraction reports” every day. But as we‘ve held time and again,
No less than an experienced drug agent decoding drug deals, or an investigator construing a plain-language billing chart he found in a suspect‘s home, see Vega, 813 F.3d at 395 (holding that a lay case agent properly “interpreted a chart listing medical equipment and containing a column reading ‘Rep. payment’ as evidence that” the defendant‘s medical-device company paid sales reps illegal kickbacks “based on the equipment they sold“), Perez simply interpreted the plain language (like “SMS message” and, well, “to” and “from“) on the spreadsheet, which was labeled with the case number and “which phone it was extracted from” (Montijo‘s) — statements that Montijo does not now challenge on heаrsay grounds. None of that testimony “turn[ed] on or require[d] a technical understanding of the programming or internal mechanics of the [forensic extraction] technology.” United States v. Marsh, 568 F. App‘x 15, 17 (2d Cir. 2014) (holding agent‘s testimony that he used software to “retrieve text messages and other data from a cellular phone” and explaining “the contents of the messages retrieved from the phone” was lay testimony for that reason); see also United States v. McLeod, 755 F. App‘x 670, 673 (9th Cir. 2019) (same).11 She relied on simple “logic and
pattern recognition” — “a process of reasoning familiar in everyday life.” Vega, 813 F.3d at 394-95
Second, Perez testified that KIK is “different from other instant text messaging services” because “once the messages have been deleted they can‘t be recovered from the phone,” “even with . . . law enforcement forensic tools.” She knew this, Perez said, because she‘d become “familiar” with KIK through her “duties investigating child exploitation crimes.” Montijo objects that this was an expert conclusion that required technical knowledge about the KIK application. In the government‘s eyes, though, Perez‘s two cents about the app relied on nothing more than “lay expertise” she‘d gained “through experience . . . оn the job” — which made it admissible. United States v. Habibi, 783 F.3d 1, 5 (1st Cir. 2015) (quoting George, 761 F.3d at 59).
This one is a closer call, but Habibi is a helpful guidepost. In that case — a prosecution for illegal gun possession — eyewitnesses had testified they saw the defendant pick up the gun with his bare hands and stash it in his basement. Id. at 3. Yet, test results found no DNA on the gun that belonged to the defendant. Id. at 4. To show the negative tests didn‘t doom its case, the government called an FBI agent to testify that he‘d worked on cases “in which [his] investigation revealed that an individual touched or handled a[n] object with a bare hand, but when tested, no detectable DNA was found on that object.” Id. at 5. Over the defendant‘s objection, we held that the challenged testimony relied “only on [the agent‘s] investigative experience” and so fell “‘comfortably within the boundaries of lay opinion testimony.‘” Id. at 5-6 (quoting United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012)).
Officer Perez‘s testimony skirted closer to the line. Instead of just saying she‘d worked on cases in which suspects sent messages on KIK that weren‘t recovered, she went a step further — testifying that the government‘s forensic software “can‘t” recover KIK messages once they‘ve been deleted. That conclusion arguably “require[d] a technical understanding” of the government‘s forensic tools and their capаbilities. Marsh, 568 F. App‘x at 17. But even if it was error to admit that testimony, the mistake was harmless. See Kotteakos v. United States, 328 U.S. 750, 765 (1946) (explaining that, even if the trial judge erred, we should affirm if the record minus the improper testimony gives us “fair assurance . . . that the [jurors‘] judgment was not substantially swayed by the error“). On direct, Perez made clear that, like the agent in Habibi, she was testifying based only on her lay experience in past investigations with the task force. And on cross-examination, she made it pellucid that she had no “training in forensic tools.” Those clarifications dampened the risk that the jury gave determinative weight to her description of the government‘s forensic capabilities. See Torres-Galindo, 206 F.3d at 141 (holding agent‘s arguably improper expert testimony to be harmless based on his “extensive[ ] cross-examin[ation] by defense counsel” and the weight of the evidence against the defendant).
This and the other evidence that Montijo used KIK to entice DPP makes it “highly probable” that Perez‘s testimony about the app “did not contribute to the verdict.” Vega, 813 F.3d at 395 (quoting United States v. Amador-Huggins, 799 F.3d 124, 129 (1st Cir. 2015)). Remember, DPP testified that Montijo used the app to get her to go on the second “vuelta” — and CAP
Sentence
His convictions secure, Montijo claims the judge botched his sentencing. In reviewing federal sentences, we take a two-step approach: we ensure the judge (first) followed the prescribed procedures and (second) imposed a sentence within the range of reason. See Gall v. United States, 552 U.S. 38, 51 (2007). In other words, we review “for procedural and substantive reasonableness.” United States v. Hernandez-Maldonado, 793 F.3d 223, 227 (1st Cir. 2015). Montijo claims the judge flunked both tests here. In his telling, the judge botched the guideline math — a “significant procedural error,” Gall, 552 U.S. at 51 — and imposed an unreasonable sixteen-and-a-half-year sеntence. To test these theories, we review the judge‘s “interpretation of the Guidelines de novo, [his] findings of fact for clear error, and [his] judgment calls for abuse of discretion.” United States v. Houston, 857 F.3d 427, 432 (1st Cir. 2017).
Procedural Reasonableness
Before we flesh out Montijo‘s claims, here‘s what you need to know. At each federal sentencing, the judge “must begin [his or her] analysis” by calculating the defendant‘s advisory guideline range. Peugh v. United States, 569 U.S. 530, 541 (2013) (quoting Gall, 552 U.S. at 50 n.6). The range turns on two variables. First, the U.S. Sentencing Guidelines assign each defendant a “total offense level” — a point score based on the “specified offense or group of offenses” plus “adjustments for any aggravating or mitigating factors.” United States v. Martinez-Benitez, 914 F.3d 1, 2 n.2 (1st Cir. 2019). Next, they place the defendant in a category (I through VI) based on his criminal history. Id. The judge then plots those two numbers on a chart (a/k/a the “sentencing table“) and “ends up with an advisory prison range,” id. — the “starting point and the initial benchmark” for determining the sentence. Gall, 552 U.S. at 49. “From there, the judge sees if any departures are called for, considers various sentencing factors, and determines
When a defendant is convicted of multiple counts, computing the first factor — the “total offense level” — is “no picnic.” United States v. Ponzo, 853 F.3d 558, 586 (1st Cir. 2017). “The guidelines tell courts to ‘group’ the counts that ‘involv[e] substantially the same harm,’
The judge worked through that maze here and pegged the guideline range at 235-293 months in prison. He started with the base offense level for each of the six counts of conviction, then notched them up with a series of enhancements. Montijo disputes three on appeal: first, the judge addеd a two-level enhancement to each count involving DPP15 because he found Montijo “unduly influenced [her] to engage in prohibited sexual conduct.”
“substantially” separate “harm,”
Montijo first complains that he did not “unduly influence[ ]” a minor, to trigger the two-point bump under
Montijo argues that we must find he rebutted the undue-influence presumption by showing that DPP (with CAP and Meléndez) planned the first meeting without his input and that DPP “willing[ly]” had sex during the second one. But even assuming he proved those facts, the judge did not err in applying the enhancemеnt. As in Houston, Montijo was well over ten years older than DPP, who needed her mom to drive her to middle school. He had the know-how and “resources,” Root, 296 F.3d at 1234, to pick her up, drive the car, pay for the motel room, and drop the girls off before they were caught. No, Montijo wasn‘t an interstate sex trafficker like Houston. Montijo‘s few-hour excursions with DPP were shorter and arguably less coercive. But
As for Montijo‘s second claim — that he didn‘t use a computer tо “entice” or “facilitate
Lastly, Montijo faults the judge for the multiple-count adjustment. In his view, the judge should have grouped the three counts involving DPP (the enticement under
The on-point guideline is
(a) When counts involve the same victim and the same act or transaction[;] (b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan[; or] (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.
Montijo does not dispute that each count involving a separate minor inflicted a “substantially” separate “harm” and deserved its own group.
Unlike an agreement to commit the same crime, or mails and wires sent to further the same scam, Montijo‘s two trips to the motel with DPP exposed her to two different sexually-charged encounters — away from familiar surroundings — to which she couldn‘t legally consent. See United States v. Nagel, 835 F.3d 1371, 1374 (11th Cir. 2016) (concluding that district
Given that outcome, any mistake in grouping the enticement and day-two transportation count was harmless. If the judge had treated those counts as separate offenses, he would have only decreased the number of “units” for the multiple-count adjustment by one (to 3.5), meaning the four-point enhancement would still have applied. See
Substantive Reasonableness
Unable to show nonharmless procedural error, Montijo urges that his 198-month sentence — a 37-month downward variance — was still unreasonably high. In doing so, he fights an “uphill” battle: we have to affirm so long as the judge gave “‘a plausible explanation’ for the selected sentence and ‘reached a defensible result.‘” United States v. Davila-Bonilla, 968 F.3d 1, 12 (1st Cir. 2020) (first quoting United States v. Vixamar, 679 F.3d 22, 29 (1st Cir. 2012), then quoting United States v. Chisholm, 940 F.3d 119, 132 (1st Cir. 2019)). We‘ll overturn a sentence as substantively unreasonable only if it goes beyond the “expansive universe of reasonable sentences.‘” United States v. King, 741 F.3d 305, 308 (1st Cir. 2014). “When, as in this case, a district court essays a substantial downward variance from a properly calculated guideline sentencing range, a defendant‘s claim of substantive unreasonableness will generally fail.” United States v. Floyd, 740 F.3d 22, 39-40 (1st Cir. 2014).
Montijo argues that this case is the “long-odds exception” — the “rare below-the-range sentence” that remains unreasonably harsh. King, 741 F.3d at 310. He stresses that he‘d “never had a brush with law enforcement” and had supportive family and a “promising future” — factors that warranted no more than a 120-month sentence. But the district judge considered those positives: he noted in court that Montijo had a university degree, was gainfully employed, and “was raised in a pro-social environment with the support of his parents who worked tirelessly to provide for their children.” And he heard defense counsel‘s reminder that Montijo‘s family was there at sentencing and “all” the previous hearings, and that “having a family to return to after” prison bodes “well for positive rehabilitation upon release.” See Davila-Bonilla, 968 F.3d at 12 (explaining that “we can infer that the district judge
END
So, our careful review complete, we affirm Montijo‘s convictions and sentence.
Notes
That‘s just what Montijo did here — so the jury could‘ve found. Remember, when he texted DPP on KIK, they‘d already gone on one “ride.” And it wasn‘t to a McDonald‘s: He drove to a motel that (it could be inferred without much effort) was designed for
scope. Id. The House Judiciary Committee explained that the 1998 Act responded to “highly publicized news accounts in which pedophiles” used the web to “seduce or persuade children to meet them to engage in sexual activities,” and confirmed its intent to enact “a comprehensive response to the horrifying menace of sex crimes against children, particularly assaults facilitated by computers . . . by providing law enforcement with the tools it needs to investigate and bring to justice those individuals who prey on our nation‘s children.”