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United States v. Santiago-Colon

United States Court of Appeals, First Circuit

March 19, 2019

UNITED STATES OF AMERICA, Appellee,
v.
NELSON SANTIAGO-COLON, Defendant, Appellant.

          Appeal From The United States District Court For The District Of Puerto Rico [Hon. Aida M. Delgado-Colón, U.S. District Judge]

          Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, and Liza L. Rosado-Rodriguez, Research and Writing Specialist, on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Circuit Judge, Souter, [*] Associate Justice, and Kayatta, Circuit Judge.

          Lynch, Circuit Judge.

         After a jury trial, Nelson Santiago-Colon, a pastor, was convicted of three counts of transporting a minor with intent to engage in criminal sexual activity. 18 U.S.C. § 2423(a). On appeal, he challenges his within-guidelines sentence of forty years' imprisonment. He argues that his sentence is procedurally unreasonable because it allegedly was based on unreliable information in his presentence report (PSR) and because the district court did not adequately consider his argument that the relevant sex offense guidelines are not supported by empirical evidence. See U.S.S.G. § 2G1.3. He also argues that his sentence is substantively unreasonable, as it is greater than necessary to achieve deterrence, and does not take into account his ability to rehabilitate. We affirm.

         I.

         We recount only those facts necessary to understand the issues on appeal. Santiago-Colon was the pastor of a Pentecostal church in Puerto Rico. Between 2004 and 2011, Santiago-Colon sexually abused at least five young boys between the ages of twelve and sixteen, including over twenty incidents with one victim.

         The instances of abuse followed a pattern. Santiago-Colon met the victims and their families through the church. He would obtain the parents' permission to drive the victims to his house and have them spend the night, under the guise of innocent activities such as his mentoring of them or their washing of the church van. The visits usually started with the victims eating meals with Santiago-Colon's family, watching television, and sometimes playing with Santiago-Colon's young son. Usually, Santiago-Colon then took the victims to his bedroom, where they would sit on his bed (the only seating option) to watch television. Afterward, Santiago-Colon would send his then-wife and child out of the room if they were present (he and his then-wife had separate bedrooms). He would then sexually abuse the victims, whether they were asleep or awake.

         The victims were forced to spend the night with Santiago-Colon, usually sleeping in the same bed as Santiago-Colon, before he drove the victims home the next day. Santiago-Colon also at times sexually abused the victims in other locations, including in his private car.

         Santiago-Colon was able to continue his predations because he instructed the victims not to tell anyone about the sexual abuse. The victims did not tell their families about the abuse until years later; several of them explained that they were afraid of Santiago-Colon, or thought no one would believe that Santiago-Colon had abused them because he was a pastor. Santiago-Colon's former wife, who divorced him in June 2013, testified at trial that when she asked him why young boys were sleeping in his bedroom, he would respond that he was giving them "words of advice." Santiago-Colon's former wife said she believed him because he was a pastor. Four of the victims, including one who was not listed in the indictment, testified at trial.

         We bypass a description of the overwhelming evidence of guilt at trial to get to the sentencing issues. The PSR calculated a base offense level of twenty-eight for each of the three counts of conviction under 18 U.S.C. § 2423(a). See U.S.S.G. § 2G1.3(a). It applied three two-level enhancements: one because each minor was in the custody, care, or supervisory control of the defendant, id. § 2G1.3(b)(1)(B); one because the defendant unduly influenced a minor to engage in prohibited sexual conduct, id. § 2G1.3(b)(2)(B); and one because the offense involved the commission of a sex act or sexual contact, id. § 2G1.3(b)(4)(A).

         The PSR calculated that each count had an adjusted total offense level of thirty-four, and added three additional levels because there were multiple counts, for a combined adjusted offense level of thirty-seven. The PSR also added a five-level enhancement because the defendant engaged in a pattern of activity involving prohibited sexual conduct, for a total offense level of forty-two. Id. § 4B1.5(b)(1). Santiago-Colon's criminal history category was I. The PSR determined Santiago-Colon's guideline imprisonment range to be 360 months to life.

         At the sentencing hearing, Santiago-Colon requested that the court impose the statutory minimum sentence of ten years' imprisonment. The government did not provide a specific sentencing recommendation, but argued ...


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