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United States of America v. Melvin Gomera-Rodríguez
Case Number: 18-1605
Judge: Sandra Lynch
United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Plaintiff's Attorney: David C. Bornstein, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Mariana E.
Bauzá-Almonte, Chief, Appellate Division
Boston, MA - Criminal defense lawyer represented defendant with one count of possessing child pornography charge.
Because Gomera pleaded guilty, "we draw the relevant
facts from the plea agreement, the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
('PSR'), and the transcript of the disposition hearing." United
States v. Hassan-Saleh-Mohamad, 930 F.3d 1, 5 (1st Cir. 2019)
(quoting United States v. O'Brien, 870 F.3d 11, 14 (1st Cir.
Gomera, a Dominican national and legal permanent
resident of the United States, was twenty-three years old at the
time of his arrest in 2015. Gomera then was studying to become an
accountant. He recently had started working as a "child aftercare
technician" at a local school. He had no prior arrest record.
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Gomera started collecting child pornography in his
teens. His collection contained videos of actual young
prepubescent children (often four to seven years old) being subject
to bestiality, incest, penetration by adult males, and oral sex.
The videos had titles such as "webcam omegle pthc 2015 sister
brother lick suck + dog great!!!" and "new pthc 2015 dad + daughter
1.avi." He made these videos available for download by others
through a peer-to-peer file-sharing network.
After indictment, Gomera paid $10,000 bail and was
released to home detention with restrictions. During this period
of home detention, Gomera complied with the conditions of his
release and voluntarily attended a treatment program for sex
offender defendants. He was released on bond a week after he was
arrested and otherwise served no time in prison before sentencing.
On January 9, 2018, Gomera's PSR calculated a Base
Offense Level of eighteen. This was enhanced two levels for
material involving prepubescent minors, U.S.S.G. § 2G2.2(b)(2);
two levels for knowingly engaging in distribution, id.
§ 2G2.2(b)(3)(F); four levels for material depicting sadistic or
masochistic conduct, id. § 2G2.2(b)(4); two levels for the use of
a computer in the offense, id. § 2G2.2(b)(6); and five levels for
the number of images, id. § 2G2.2(b)(7)(D). It was decreased three
levels for his accepting responsibility, id. § 3E1.1(a)-(b). The
Total Offense Level was thirty. Gomera had no prior criminal
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record and a Criminal History Category of I. The GSR calculated
was 97 to 121 months' imprisonment. The PSR noted that, under
Application Note 6 to the United States Sentencing Guidelines
section 2G2.4, an upward departure may be warranted because
multiple videos were more than five minutes in length. There is
no claim of guidelines calculation error.
The PSR identified both positive and negative "factors
that may warrant a sentence outside of the advisory guidelines."
In Gomera's favor, the report noted that he was a twenty-fiveyear-old "first time offender who has the support from his family
and friends[,]" "is employed full-time and [is] close to completing
his bachelor's degree." Counter to that, the PSR found that
Gomera's child pornography collection was "of real children being
subjected to real sexual abuse." "Consumers create the demand
that leads to constant exploitation of children," the report
Gomera objected to some portions of the PSR. The
Probation Officer made changes in response to several of his
smaller requests, such as adding additional information about
mitigating circumstances. The Probation Officer rejected Gomera's
argument that he did not warrant a two-level enhancement for
knowingly distributing child pornography.
Gomera argued at sentencing, inter alia, that he should
be sentenced to time served because (1) he was not a risk to the
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public and did not require incapacitation through a long sentence
and (2) the child pornography possession sentencing guidelines are
too strict and not supported by empirical evidence. His lawyer
emphasized Gomera's youth and efforts at rehabilitation. She
submitted a report on Gomera from a psychologist that stated "[h]is
psychosexual development during childhood or adolescence shows no
signs of sexual deviancy, nor evidence of common risk factors
associated with sexual deviant behavior or pedophilia."
The United States recommended a sentence of ninety-seven
months' imprisonment, at the bottom of the GSR. It argued the
guidelines provided clear guidance as to Gomera's "culpability and
dangerousness to the community, particularly to children." And
the government stressed the victimization of the real children
shown in the videos.
The district court, as said, sentenced Gomera to ninetyseven months' imprisonment and twenty years' supervised release.
During sentencing, the court discussed at length Gomera's
employment, educational history, disabilities, participation in
the sex offender treatment program, status as a first-time
offender, youth, and many other personal characteristics.
The court concluded:
The circumstances of the offense of
conviction reflect, in the Court's estimation,
humiliation and degradation suffered by
vulnerable young children who are preyed upon
by abhorrent acts of sexual abuse. The
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legislative history of the statute that
criminalizes possession of child pornography
acknowledges that those who, like defendant,
possess and view child pornography tend to
encourage its continued production and
Having considered the defendant's
personal characteristics, the serious nature
of the offense, and the need to deter future
behavior by defendant and to protect society
and its children from future criminal behavior
by him, the Court finds that a sentence at the
lower end of the applicable guideline
imprisonment range is sufficient but not
greater than necessary to meet objectives of
punishment and of deterrence in this case.
Gomera's lawyer then objected on grounds of procedural
and substantive unreasonableness. When the court asked how the
sentence was procedurally unreasonable, his lawyer stated that the
sentence suggested the court viewed the guidelines as mandatory.
The court responded, "I don't know where you get the idea that I
understood it was mandatory. The Court considered the guidelines
computations, yes, but the guidelines are advisory."
Gomera's lawyer then stated that the sentence was
substantively unreasonable because "there is nothing in [Gomera's]
history, characteristics, in the record, . . . presented by the
Government or in the PSR that suggests that there were any other
aggravating factors besides the offensive conduct that led to
[Gomera's] conviction." The Court denied that the sentencing was
"something mechanic." It said that it considered Gomera's personal
characteristics and specifically highlighted the fact that he
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voluntarily went to sex offender treatment. The court said that
it watched videos Gomera's family members submitted. It "gave a
lot of weight to [Gomera's] allocution." It considered "all
aspects" of the case.
We review the sentence first for procedural
reasonableness and then for substantive reasonableness. HassanSaleh-Mohamad, 930 F.3d at 6 (quoting United States v. RodríguezReyes, 925 F.3d 558, 562-63 (1st Cir. 2019)).
A. Procedural Reasonableness
Gomera makes two procedural arguments on appeal. First,
he argues that "[t]he court committed procedural error by giving
undue weight to the offense in detriment of other sentencing
factors and failing to justly consider his personal
characteristics." Second, he argues that "[t]he court committed
procedural error by failing to consider the lack of empirical basis
for the Child Pornography Guidelines."
We will assume, favorably to Gomera, that the standard
of review for Gomera's first procedural claim is for abuse of
discretion.1 See United States v. Caballero-Vázquez, 896 F.3d 115,
1 "Preserved claims of sentencing error are generally
reviewed for abuse of discretion. However, 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) (internal
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120 n.1 (1st Cir. 2018). The standard of review for Gomera's
second unpreserved procedural claim is plain error. United States
v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019).
As to the first procedural argument, there was no abuse
of discretion. It is clear the district court explicitly
considered Gomera's personal circumstances. Gomera disagrees with
the court's balancing of sentencing factors. This is not a viable
claim of procedural error. A district court's choice to "weigh
the factors differently than [Gomera would have] is not error."
United States v. Contreras-Delgado, 913 F.3d 232, 242 (1st Cir.
Gomera's second unpreserved procedural claim is reviewed
for plain error. Sayer, 916 F.3d at 37. When the district court
asked Gomera to specify his procedural unreasonableness claims, he
did not make this argument. Nor did he argue that the court was
required to explicitly address the issue of the empirical basis
Although Gomera objected to the procedural
reasonableness of his sentence at the sentencing hearing, his
specific objection was only that the district court "believes or
took the guidelines as mandatory instead of advisory." When
pressed by the court to explain this objection, Gomera said that
"the Court may have treated the guidelines almost as mandatory,
because in this case there is an inordinate amount of mitigating
factors . . . and it is our position that the Court failed to
explain why a sentence so harsh in this case is appropriate."
Viewing the sentencing guidelines as mandatory (the
issue Gomera raised at sentencing) and failing to properly weigh
sentencing factors (the error he claims now) are distinct claims.
Nonetheless, we assume in Gomera's favor that the first procedural
claim should be reviewed under the abuse of discretion standard.
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for the child pornography guidelines. The record does not show
that the court failed to consider the "empirical basis" argument
to the extent it related to Gomera's claim that the court treated
the guidelines as mandatory. The record also does not show that
the court failed to consider the empirical basis argument when it
was made before sentencing. There was no error.
Nothing compelled the district court to reject the
guidelines based on Gomera's argument. A court does not "abuse
its discretion per se when it does not reject the child pornography
guidelines," let alone commit plain error. United States v.
Aquino-Florenciani, 894 F.3d 4, 8 (1st Cir. 2018). "[T]here is no
requirement that a district court must categorically reject the
child pornography guidelines based on their provenance." Id.
Nor was the district court required to address this
argument explicitly at sentencing. In United States v. Clogston,
662 F.3d 588, 592 (1st Cir. 2011), we found "unpersuasive the
appellant's insistence that the district court's failure at
sentencing to address his policy argument evinces" any kind of
error. "[T]he sentencing court listened to the arguments proffered
at the disposition hearing and carefully explained why its chosen
sentence fit both the offender and the circumstances of the
offense." Id. "A reviewing court should be reluctant to read too
much into a district court's failure to respond explicitly to
particular sentencing arguments." Id.
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B. Substantive Reasonableness
Gomera's final argument is that the ninety-seven-month
sentence was substantively unreasonable given Gomera's youth and
lack of criminal record. We review preserved substantive
reasonableness claims for abuse of discretion. See AquinoFlorenciani, 894 F.3d at 8 (citing United States v. Ruiz-Huertas,
792 F.3d 223, 226 (1st Cir. 2015)).
A sentence is substantively reasonable if the district
court provided a "plausible sentencing rationale and reached a
defensible result." United States v. Coffin, 946 F.3d 1, 8 (1st
Cir. 2019) (quoting United States v. Abreu-García, 933 F.3d 1, 6
(1st Cir. 2019)).
The court's rationale, stated earlier, disposes of this
concern. The images of the abuse of real young children were
profoundly disturbing, as the court highlighted. Gomera had
recently taken a job giving him access to young children, and he
acknowledged his viewing of the images increased his sexual
The court articulated its concern about those who
provide a market for the images resulting from the sexual abuse of
young children. "Congress reasonably determined that it was
necessary to reduce 'both supply and demand in the interstate
market' for child pornography." United States v. Blodgett, 872
F.3d 66, 71 (1st Cir. 2017) (quoting United States v. Paige, 604
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F.3d 1268, 1273–74 (11th Cir. 2010)). "In making this judgment,
Congress recognized —- reasonably, we think —- that manufacturers
and distributors of child pornography cannot thrive without
consumers eager to embrace the smut that they produce." Id. The
district court could perfectly well agree with Congress.
"Challenging a sentence as substantively unreasonable is
a burdensome task in any case, and one that is even more burdensome
where, as here, the challenged sentence is within a properly
calculated GSR." Clogston, 662 F.3d at 592-93. "Within-guidelines
sentences are entitled to a presumption of reasonableness," United
States v. Rodríguez-Adorno, 852 F.3d 168, 178 (1st Cir. 2017), a
presumption Gomera has not overcome.