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United States v. Aquino-Florenciani

United States Court of Appeals, First Circuit

June 25, 2018

UNITED STATES OF AMERICA, Appellee,
v.
NOEL AQUINO-FLORENCIANI, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

          Jane Elizabeth Lee on brief for appellant.

          James I. Pearce, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Kenneth A. Blanco, Assistant Attorney General, Criminal Division, United States Department of Justice, John P. Cronan, Acting Assistant Attorney General, Criminal Division, United States Department of Justice, Rosa E. Rodríguez-Vélez, United States Attorney, Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, and Elba I. Gorbea-Padró, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Selya, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Defendant Noel Aquino-Florenciani pleaded guilty to both producing and possessing child pornography and was sentenced to 264 months' imprisonment to be followed by ten years of supervised release. On appeal, Aquino-Florenciani seeks resentencing, raising three claims of error. We affirm.

         I.

         In October 2015, federal agents detected that a computer associated with a particular IP address had shared a file containing child pornography. After the agents identified the location of the computer, they obtained a warrant to search the premises and seize electronic equipment. When they executed the search, the agents interviewed the internet account owner, who revealed that he shared his access with a family member and next-door neighbor, Noel Aquino-Florenciani. The agents then went to Aquino-Florenciani's apartment, where they searched (with his consent) various electronic devices. As the search ensued, Aquino-Florenciani told the agents that he used a peer-to-peer file-sharing service to download child pornography, had done so for approximately one year, and had over fifty pornographic videos of children on his computer. He also stated that he had never sexually touched or photographed a minor.

         Agents eventually found on Aquino-Florenciani's cellular phone a video of Aquino-Florenciani performing sexual acts on a prepubescent minor male. In a subsequent interview with law enforcement, Aquino-Florenciani admitted that he made the video. Aquino-Florenciani was charged with one count of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). In April 2016, he pleaded guilty to both counts. The Presentence Investigation Report ("PSR") calculated a total offense level of thirty-eight, which, coupled with Aquino-Florenciani's Criminal History Category of I, yielded an advisory guidelines range of 235 to 293 months' imprisonment.

         Aquino-Florenciani made no objection to the accuracy of the guidelines calculation. Rather, he argued that because the child pornography guidelines are not empirically based, the district court should not rely on them. The district court found that the guidelines range as calculated in this case "satisfactorily reflect[ed] the components of the offense by considering its nature and circumstances." The district court then imposed a custodial sentence of 264 months' imprisonment, to be followed by ten years of supervised release. As part of Aquino-Florenciani's supervised release conditions, the district court directed that Aquino-Florenciani "shall not possess or use . . . any . . . device with internet accessing capability at any time or place without prior approval from the probation officer." The district court further directed that Aquino-Florenciani "shall permit routine inspections of his computer system or any other computer system maintained in his possession," and that he shall "consent to the installation of systems that will enable the probation officer or designee to monitor [Aquino-Florenciani's electronic devices]." Aquino-Florenciani did not object to these conditions.

         II.

         Aquino-Florenciani now appeals his sentence, contending that the supervised release condition restricting his possession and use of internet-capable electronics was not compliant with the mandates of 18 U.S.C. § 3583(d) and that the district court's use of the child pornography guidelines was an abuse of discretion. He also raises one additional issue in a sealed brief.

         A.

         We address first Aquino-Florenciani's argument that the supervised release condition prohibiting him from possessing or using computers, cell phones, or other internet-capable devices without prior approval from his probation officer amounts to an excessive "total ban" on his internet use. In his view, such a ban contradicts the requirements of 18 U.S.C. § 3583(d) that special conditions of supervised release be "reasonably related to" the factors set forth in 18 U.S.C. § 3553(a), "involve[] no greater deprivation of liberty than is reasonably necessary" to comport with the purposes described in section 3553(a), and be "consistent with any pertinent policy statements issued by the Sentencing Commission." United States v. Hinkel, 837 F.3d 111, 125 (1st Cir. 2016) (citing these requirements). Aquino-Florenciani concedes that he did not object to the imposition of the condition about which he now complains and that plain error review thus applies. See United States v. Mejía-Encarnación, 887 F.3d 41, 45 (1st Cir. 2018). Under this standard, we reverse only where ...


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