FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
Elizabeth Lee on brief for appellant.
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.
Torruella, Selya, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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.
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.
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
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.
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
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 ...