United States v. Breton , 740 F.3d 1 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2293
UNITED STATES,
Appellee,
v.
ROYCE BRETON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Dyk,* and Thompson, Circuit Judges.
Timothy E. Zerillo, with whom Amy T. Robidas and Zerillo Law,
LLC, were on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
January 6, 2014
*
Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. On May 10, 2012, a jury in the
District of Maine convicted Royce Breton of producing, possessing,
and distributing child pornography. The district judge
subsequently sentenced Breton to 340 months of imprisonment,
followed by fifteen years of supervised release. Breton now
appeals, challenging the admission of certain evidence, the
sufficiency of the evidence as to all charges, and the calculation
of his sentence. Finding none of his claims persuasive, we affirm
both his conviction and his sentence.
I. Facts and Background
Because Breton contests the sufficiency of the evidence,
we present the facts in the light most favorable to the verdict.
See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir. 2012).
A. The Investigation
The unusual trail leading up to this case began on August
16, 2010, when Lewiston Police Officer David Brule, State Police
Sergeant Glenn Lang, and State Trooper David Armstrong made an
unannounced visit to Breton's house in Sanford, Maine to
investigate an unrelated computer hacking crime.1 Breton, a
nuclear electronics supervisor at the Portsmouth Naval Shipyard and
part-time pre-medical student at the University of New England,
1
The district judge excluded further information about the
nature of this alleged crime from trial, so we do not dwell on it
here.
-2-
shared the home with his then-wife, Amanda Paradis, and their young
daughter.
The officers arrived at about 1:00 p.m., while Paradis
was at work and Breton, who worked the evening shift, was home
alone. When Breton answered the door, the officers asked if they
could come in to speak with him about the computer hacking crime.
Before they entered, Trooper Armstrong saw a sizable dog in the
house and asked Breton to secure it in another room. Breton
complied, but he also took advantage of the opportunity to hide the
Sony laptop computer (the "laptop") that he and Paradis shared in
the basement.2
A few moments later, Breton let the officers in and
responded courteously to their questions. He led them upstairs to
his custom-built desktop computer (the "desktop") and an old, non-
functioning Gateway laptop computer (the "Gateway"). When asked
whether he had used wiping software on those computers, Breton
replied he had not and permitted the officers to take them for
further inspection.3 Breton made no mention of another computer
squirreled away in the basement.
When Paradis arrived home that evening, Breton told her
about the officers' visit and their computer hacking investigation.
2
The laptop had been a Christmas gift from Breton to Paradis,
but both Breton and Paradis used it.
3
Wiping software is used to overwrite data in order to
prevent its recovery.
-3-
He said the police had taken the desktop and the Gateway, but they
had not taken the laptop because he had put it in the basement.
Breton explained to her that "he didn't think [the officers] needed
to have [the laptop]," because "[h]e told them everything that they
needed to know."
As a result of this conversation, Paradis decided to take
the couple's daughter and move in with her parents. She also took
the laptop, telling Breton she was worried the police would come
back to their house and blame her for concealing it. On August 26,
2010, ten days after the officers' visit and unbeknownst to Breton,
Paradis contacted the police and arranged for Officer Brule to
retrieve the laptop at her workplace.
About a week later, Breton asked Paradis about the
laptop. When she said she had given it to the police, Breton
became very distraught, saying she had "screwed everything up" and
"he was going to go to jail and lose his job." Later, in a heated
text message exchange, Breton again expressed anger at Paradis for
turning in the laptop and told her he "should have sh[o]t [her]
instead."4
4
Text records reveal that Breton said this after Paradis said
Breton was a "wackjob" who had "been talking about killing himself
and shooting cops." Breton replied, "I guess I should have sh[o]t
you instead." The jury did not hear the full conversation, but
both Paradis and Breton testified that Breton said he should have
shot Paradis.
-4-
On September 8, 2010, Breton called Officer Brule to ask
when his computers would be returned. They agreed to meet and
discuss the matter on September 20.
In the meantime, Officer Brule examined the laptop and,
in doing so, uncovered sexually explicit images of children in a
hidden file associated with Yahoo Messenger — a chat program that
allows users connected over the internet to converse and exchange
files, including images or videos — and the username
"Shadowwind345." Officer Brule also discovered that wiping
software had been installed on the laptop on August 16, 2010 at
roughly 2:00 p.m. — i.e., shortly after the officers had left
Breton's house.
At their September 20 meeting, when Officer Brule asked
Breton why he had not turned over the laptop, Breton answered that
it belonged to his wife and contained intimate images of the couple
that he did not want others to see. He admitted to installing the
wiping software on the laptop but claimed he used it only to remove
the private images of him and his wife. He conceded that this
might make it look like he was destroying evidence, but he insisted
that he knew nothing about the Shadowwind345 account and said he
was "completely flabbergasted" when Officer Brule told him about
the child pornography images found on the computer.
Yahoo later informed Officer Brule that the Shadowwind345
account was created on June 23, 2001 and was registered to an
-5-
obviously-fictional "Mr. Nonesuch-ever-was" in Cleveland, Ohio.
Although Breton never admitted to creating the account, at trial
Breton acknowledged that he often used the combination "345" in his
usernames and passwords. For example, his e-mail address was
Breton345@metrocast.net. He also conceded at trial that his dad
used to have a cat named Shadow. The Shadowwind345 account was
deactivated on September 18, 2010 — two days before Breton's
appointment with Officer Brule — from an IP address registered to
MetroCast (Breton's internet provider) at Breton's home, and
associated with Breton's e-mail address.5 An in-depth
investigation followed.
1. The Laptop
Officer Brule and Secret Service Special Agent Matt
Fasulo, a computer forensics expert attached to the Maine State
Police Computer Crimes Unit, recovered roughly three hundred images
of child pornography from the laptop in hidden folders related to
the Yahoo Messenger program.6 Two hundred of these images were
identified as portraying known child victims in the National Center
for Missing and Exploited Children database.
5
An IP address is a series of numbers that identifies
computer information over a network.
6
At trial, the parties stipulated that these images
"contain[ed] visual depictions of actual minors engaging in
sexually explicit conduct as those terms are used in 18 U.S.C.
§ 2256," and had been transported in interstate or foreign
commerce.
-6-
Of the unidentified images, three were singled out as
photographs of a young female child, dubbed "Minor A." Each
depicts a close-up of Minor A's genitals. In the photographs,
Minor A has a crease in her right thigh, is lying on a patterned
quilt, and is wearing a onesie. In one image, an adult hand
displays Minor A's vagina.
At some point, Sanford Police Detective Barbara Gagne
took over the case from Officer Brule and arranged to meet with
Paradis to discuss some of the images found on the computer. She
showed Paradis the Minor A photographs and Paradis identified Minor
A as her daughter. Paradis said her daughter was "a very chubby
baby" who had a visible crease in her right thigh, just like Minor
A. She recognized the patterned quilt in the photographs as the
quilt her aunt had made for her baby shower. She said the onesie
Minor A wore in the photographs was the onesie her daughter "wore
pretty much every day." Paradis also identified the finger in one
of the photographs as Breton's finger based on its appearance and
its short, always-bitten-to-the-quick fingernail.
Additionally, Special Agent Fasulo ran tests to determine
how the Yahoo Messenger folders containing the child pornographic
images were created and whether the images were exchanged.7 His
7
Special Agent Fasulo performed these tests by installing
Yahoo Messenger on two computers and monitoring their interaction
as files were exchanged. Because someone had uninstalled Yahoo
Messenger and wiped the data from the laptop before Paradis gave it
to the police, Special Agent Fasulo was unable to determine what
-7-
investigation revealed that the Yahoo Messenger program
automatically created a folder whenever a chat took place. Each
folder contained all the files that were sent or received during a
particular chat. Ordinarily, the folder would be deleted when the
user closed the program, but if the program "crashed," or
terminated abnormally, the folder would remain on the computer.
Furthermore, Special Agent Fasulo could ascertain whether a
particular image in a folder had been sent or received based on
whether its file name contained a specific sequence of symbols and
letters.
Special Agent Fasulo's analysis indicated that at least
one of the three Minor A images was sent from the laptop using
Yahoo Messenger on April 27, 2009 at 11:42 a.m.; the other two
images were either sent or received at roughly the same time.8 He
also found that an iPhone registered to Breton was connected and
synchronized with the laptop about forty minutes before these
precise version of Yahoo Messenger was used on the laptop.
Accordingly, he utilized several different versions of Yahoo
Messenger available around the time when the files allegedly were
exchanged in order to obtain his results.
We note that the operating system on the laptop was Microsoft
Windows Vista Home, while the computers used by Special Agent
Fasulo ran Microsoft Windows Vista Business. Special Agent Fasulo
testified that he thought the difference between these systems for
his purposes was negligible, and so there was no need to procure
Windows Vista Home for the test computers.
8
Special Agent Fasulo did not find any metadata, or embedded
"data about data," within the Minor A image files to indicate when
or how those images were created.
-8-
images were exchanged. Other evidence showed that Breton did not
report to work that day until 3:30 p.m.
In addition to the images, Special Agent Fasulo
discovered registry files on the laptop with names he had
encountered in other child pornography investigations, including:
"Pthc," meaning "preteen hardcore;" "Lolita," meaning an underage
female; and "girl-in-tent-11-YO," meaning "11-years-old."9 But he
located no corresponding image files on the laptop.
Special Agent Fasulo also came across a program called
GigaTribe, which, like Yahoo Messenger, allows users to upload
images or files to share on the internet. In a memory folder
created by the operating system that stores information in the
event of a crash, Special Agent Fasulo found GigaTribe folders
associated with the usernames "Royce-$$-2AOB" and "Shadowwind345B."
In those folders, he identified files with names like "ptsc,"
meaning "preteen softcore," and "kids-teens-women-porno-lolitas-
preteens-real-key-movs-r@y-gold-hussyfans-underage-girls-children-
pedophilia-pthc."10 Again, corresponding image files were not found
on the laptop.
Lastly, Special Agent Fasulo discovered a program called
Internet Relay Chat, which brings users with similar interests
9
Registry files store information about documents or images
that have been opened on a computer.
10
“R@y-gold” and “hussyfans” are known series of child
pornography.
-9-
together in chat rooms. The program was saved to the C:Royce
directory and associated with the nicknames "Shadow345" and
"Shadowwind345," a username "nonesuch," and an e-mail address
none@nowhere.com. The log files of chat rooms visited included
names like "young-girl-sex," "dad-and-daughter-sex," "little-boy-
sex-chat," "mom-daughter-sex," and "teen-sex-pics." Also spotted
in the C:Royce directory was Breton's application to the University
of New England.
2. The Desktop
No images or files containing child pornography were
recovered from the desktop. However, Special Agent Fasulo's
examination of the desktop's three hard drives revealed
considerable past interactions with two web-sharing forums:
imgsrc.ru ("Image Source Russia"), a website that allows users to
upload images from servers in Russia into albums to share publicly
or with password protection; and XNews, a newsgroup website where
readers can comment on particular topics. There was evidence of
past searches on Image Source Russia for such phrases as "12YO,"
"daughter," "naked," "girl," "sex," "14," and "14 plus girl," as
well as evidence of webpages visited containing albums with titles
and keywords like "love Lolita," "children," "young girls," "14YO
topless," and "young nude preteen girls." And although the files
themselves were missing, there was evidence of downloads from XNews
including, "Pthc 11 YR son eat mom" and "O-R-G-A-S-I-S-M.mpg."
-10-
Special Agent Fasulo subsequently accessed the Image
Source Russia website and found a user page registered to the user
"Shadowwind345" at the e-mail address shadowwind345@yahoo.com.
There were no images on Shadowwind345's user page. However, there
was evidence of activity by this user. On March 6, 2009,
Shadowwind345 posted a comment on a page by the username "Hershey"
entitled "Young Bride," saying "I'd like to see your daughter pics.
Email me at Shadowwind345@yahoo.com to trade." On May 24, 2009,
Shadowwind345 commented on an album by the username "Low Jack"
entitled "my dau," saying "Have more? Love to see more,
Shadowwind345@yahoo.com if you want my passes or want to see my
private daughter stuff."
B. Pre-Trial Skirmishes
Based on this investigation, Breton was charged with
three counts involving child pornography: (1) using a minor to
engage in sexually explicit conduct for the purpose of producing a
visual depiction of that conduct, in violation of 18 U.S.C.
§ 2251(a); (2) knowingly possessing child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B); and (3) knowingly distributing child
pornography, in violation of 18 U.S.C. § 2252A(a)(2).
Before trial, the government moved in limine to admit
Paradis's testimony regarding, among other things, Breton's
aforementioned statements and text messages. Breton opposed,
claiming they were covered by the marital communications privilege.
-11-
Breton also counter-moved to exclude evidence of file and chat room
names that were suggestive of child pornography where no images
were recovered, claiming the names were irrelevant, unfairly
prejudicial, and unduly confusing.
After a motions hearing, the district judge granted the
government's request to admit Paradis's testimony, applying an
exception to the marital communications privilege for statements
regarding an offense against a child of either spouse. The judge
also denied Breton's motion to exclude suggestive file and chat
room names.
C. Trial and Sentencing
Breton's three-day jury trial began on May 8, 2012. At
the close of the government's case and again at the end of trial,
Breton moved for judgment of acquittal. Both motions were denied.
On May 10, 2012, the jury convicted Breton on all three counts.
At Breton's sentencing hearing on October 12, 2012, the
district judge sentenced Breton to concurrent imprisonment terms of
340 months for count one (production), 120 months for count two
(possession), and 240 months for count three (distribution), with
an additional fifteen years of supervised release.11 This appeal
followed.
11
We will describe Breton's sentencing hearing at greater
length below with respect to his sentencing challenge.
-12-
II. Analysis
Breton raises four issues on appeal: (1) error in
admitting his former wife's testimony about statements that he says
were protected by the marital communications privilege, (2) error
in admitting file and chat room names that were suggestive of child
pornography where no images were recovered, (3) insufficiency of
the evidence as to all three charges, and (4) error in calculating
his sentence under the United States Sentencing Guidelines (the
"Guidelines"). We address each of Breton's arguments in turn but
find none convincing.
A. Marital Communications Privilege
Breton invokes the marital communications privilege to
challenge the district judge's admission of Paradis's testimony
regarding two groups of statements Breton made to Paradis after he
learned she had conveyed the laptop to the police. First, Breton
told Paradis that she had "screwed everything up" and "he was going
to go to jail and lose his job." Second, Breton text-messaged
Paradis that he "should have sh[o]t her instead." Breton argues
that both sets of statements are privileged because he made them to
Paradis in confidence during their marriage. He says the judge
erred by recognizing an exception to the marital communications
privilege for offenses against a spouse's child and by applying
such an exception to these statements, which he says were not
related to a crime against his and Paradis's child.
-13-
We review the admission of evidence over a claim of
privilege for abuse of discretion. In re Grand Jury Subpoena (Mr.
S.), 662 F.3d 65, 69 (1st Cir. 2011). Where relevant to a
determination of privilege, we review rulings on legal questions de
novo and findings of fact for clear error. Id.In addressing Breton's first claim of error, we note in
general that the party asserting a privilege "bears the burden of
showing that the privilege applies." See Vicor Corp. v. Vigilant
Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012). If the privilege is
established, the burden shifts to the opposing party to show that
an exception defeats the privilege. See id.In a federal criminal case such as this, claims of
privilege are governed by the common law as interpreted by the
courts in light of their reason and experience. United States v.
Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (citing Fed. R. Evid. 501).
The common law recognizes two related but distinct marital
privileges: (1) the spousal testimony privilege, which allows one
spouse to refuse to testify adversely against the other in criminal
or related proceedings; and (2) the marital communications
privilege, which permits a defendant to refuse to testify, and
allows a defendant to bar his spouse or former spouse from
testifying, as to any confidential communications made during their
marriage. See United States v. Yerardi, 192 F.3d 14, 17-18 (1st
Cir. 1999); United States v. Bey, 188 F.3d 1, 4 (1st Cir. 1999);
-14-
Rakes, 136 F.3d at 3. Only the latter claim of privilege is at
issue here.
The marital communications privilege exists to promote
marital harmony and stability by "ensur[ing] that spouses . . .
feel free to communicate their deepest feelings to each other
without fear of eventual exposure in a court of law." United
States v. Brock, 724 F.3d 817, 820-21 (7th Cir. 2013) (citation
omitted) (internal quotation marks omitted); United States v.
Banks, 556 F.3d 967, 974 (9th Cir. 2009). Indeed, the protection
of marital confidences is "regarded as so essential to the
preservation of the marriage relationship as to outweigh the
disadvantages to the administration of justice which the privilege
entails." Wolfle v. United States, 291 U.S. 7, 14 (1934).
However, this privilege, like others, "is not limitless,
and courts must take care to apply it only to the extent necessary
to achieve its underlying goals." See In re Keeper of Records
(Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st
Cir. 2003) (discussing attorney-client privilege). Accordingly,
courts have long recognized an exception to the privilege when one
spouse commits an offense against the other, thereby harming the
marital relationship and thwarting the privilege's purpose. Trammel
v. United States, 445 U.S. 40, 46 n.7 (1980) (saying the exception
applies to spousal testimony privilege and marital communications
privilege); see 1 McCormick On Evid. § 84 (7th ed.) (same); see
-15-
also Wyatt v. United States, 362 U.S. 525, 529 (1960) (applying
exception to spousal testimony privilege).
Two of our sister circuits have expanded this "offense
against spouse" exception to include an offense against a child of
either spouse. United States v. White, 974 F.2d 1135, 1138 (9th
Cir. 1992) (applying exception to marital communications
privilege); United States v. Allery, 526 F.2d 1362, 1367 (8th Cir.
1975) (applying exception to spousal testimony privilege); see also
United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977)
(acknowledging exception to spousal testimony privilege). Another
has gone further, finding the exception covers offenses against a
child-relative visiting in the home. United States v. Bahe, 128
F.3d 1440, 1446 (10th Cir. 1997).12
In United States v. Allery, 526 F.2d 1362, 1366-67 (8th
Cir. 1975), the Eighth Circuit cogently explained why the "offense
12
The remaining circuit courts, including this one, have not
addressed the issue of exceptions for offenses against a child of
either spouse or a child-relative. See Naomi Harlin Goodno,
Protecting "Any Child": The Use of the Confidential-Marital-
Communications Privilege in Child-Molestation Cases, 59 U. Kan. L.
Rev. 1, 37 n.215 (2010). However, a few federal district courts in
these circuits have recognized an expanded exception. See United
States v. Martinez, 44 F. Supp. 2d 835, 837 (W.D. Tex. 1999)
(holding that the marital communications privilege did not apply
where a mother was accused of abusing her two minor children);
United States v. Mavroules, 813 F. Supp. 115, 119-20 (D. Mass.
1993) (finding that the marital communications privilege did not
apply where a wife alleged that her abusive husband had threatened
to injure her father's reputation in order to extort money from
her).
-16-
against spouse" exception should also cover an offense against a
child of either spouse.13
First, a crime against a spouse's child, like a crime
against a spouse, profanes the deep bond of trust and love between
marital partners and disrupts family harmony. Id. at 1366. Such
an offense is irreconcilable with the primary purposes of the
marital communications privilege: to promote marital unity and
stability. White, 974 F.2d at 1138.
Second, there is frequently greater-than-usual need for
parental testimony in prosecutions for crimes against children.
Allery, 526 F.2d at 1366. Tragically and perversely, child abuse
occurs most often in the home at the hands of a parent or parent-
substitute. Id.; Bahe, 128 F.3d at 1446. Testimony regarding
confidential marital communications may constitute critical
evidence in such cases. See Bahe, 128 F.3d at 1446.
Third, like all privileges, the marital privileges hamper
the truth-seeking process and must be interpreted narrowly.
Trammel, 445 U.S. at 50 (quoting Elkins v. United States, 364 U.S.
206, 234 (1960) (Frankfurter, J. dissenting)); see Allery, 526 F.2d
at 1366 (quoting Hawkins v. United States, 358 U.S. 74, 81 (1958)
(Stewart, J. concurring)).
13
Though Allery involved the spousal testimony privilege, its
rationale is equally applicable to the marital communications
privilege. White, 974 F.2d at 1138; see also Trammel, 445 U.S. at46 n.7.
-17-
Finally, there is overwhelming state legislative and
judicial authority for the proposition that a crime against a
spouse's child renders the marital communications privilege
inapplicable. Allery, 526 F.2d at 1366-67; see, e.g., Kan. Stat.
Ann. § 60-428(b)(3); Miss. R. Evid. 504(d); Utah R. Evid.
502(e)(3); Munson v. State, 959 S.W.2d 391, 392 (Ark. 1998); State
v. Michels, 414 N.W.2d 311, 315-16 (Wis. Ct. App. 1987).14 Indeed,
of the five state and territorial jurisdictions comprising the
First Circuit, it appears that none would uphold a claim of the
marital communications privilege in cases involving a crime against
a spouse's child.15
14
Approximately half of the states have adopted a "child of
either spouse" or "child who resides in the home" exception to the
marital communications privilege. Goodno, Protecting "Any Child",
supra, at 17-18, 20. The other half have adopted a broader
exception for crimes against any child. Id. at 19-20.
15
Maine law establishes an exception to the marital
communications privilege where "one spouse is charged with a crime
against the person or property of (1) the other, (2) a child of
either, [or] (3) any person residing in the household of either .
. . ." Me. R. Evid. 504(d).
Massachusetts law excepts "child abuse proceedings, including
incest," from the marital communications privilege. Mass. Gen.
Laws Ann. ch. 233 § 20. Massachusetts courts have interpreted a
similar exception to the spousal testimony privilege to apply to
"abuse of any child." Villalta v. Commonwealth, 702 N.E.2d 1148,
1152 (Mass. 1998).
New Hampshire courts recognize a public policy exception to
the marital communications privilege for cases involving sexual
abuse of a child of either spouse residing in the home. State v.
Pelletier, 818 A.2d 292, 298 (N.H. 2003) (interpreting N.H. R.
Evid. 504).
Puerto Rico law contains an exception to the marital
communications privilege for "[a] crime against the person or
property of the other spouse or a child of either." P.R. Laws Ann.
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Tackling this issue for the first time, we agree with our
sister circuits and the vast majority of states that the "offense
against spouse" exception to the marital communications privilege
must be read to cover an offense against a child of either spouse
in order to further the privilege's underlying goals of promoting
marital and family harmony.16 Accordingly, we find that the
district judge did not err by recognizing an exception to the
marital communications privilege for offenses against a spouse's
child.
We further hold that the district judge did not abuse his
discretion by applying this exception to the statements at issue
here. Breton sought to exclude Paradis's testimony about what he
said to her after she turned the laptop over to police, including
tit. 32, Ap. IV R. 27(D)(2)(i).
Rhode Island courts interpret state statute as permitting a
witness-spouse to testify voluntarily about confidential marital
communications in a criminal case, regardless of whether she is a
victim and notwithstanding the defendant-spouse's objection. See
State v. Angell, 405 A.2d 10, 15-16 (R.I. 1979) (citing State v.
Kenyon, 26 A. 199 (R.I. 1893), and interpreting R.I. Gen. Laws Ann.
§ 12-17-10).
16
Because this case involves a crime against the natural child
of both spouses, we need not address the scope of this exception as
to other children — a question upon which federal and state courts
have reached no consensus. Compare Bahe, 128 F.3d at 1446(extending exception to cover offense against an 11-year-old
relative visiting the home), and Banks, 556 F.3d at 975-76 (stating
that the exception should cover a spouse's birth child, step-child,
or "the functional equivalent," but declining to extend exception
to offense against a grandchild who was visiting and had formerly
resided in the home); see generally Goodno, Protecting "Any Child",
supra, at 12-22 (discussing the different versions of exception
adopted by federal and state courts and legislatures).
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that she had "screwed everything up," "he was going to go to jail
and lose his job," and he "should have sh[o]t [her]." Breton says
that even if the district judge appropriately adopted an exception
to the marital communications privilege for crimes committed
against a spouse's child, the judge should not have permitted
Paradis to testify about these statements because they were not
related to a crime against his and Paradis's child.
We disagree. Here, all three crimes charged —
production, possession, and distribution — covered crimes against
Minor A, whom Paradis identified as her daughter. As the district
judge determined, Breton's statements about losing his job, going
to jail, and shooting Paradis are reasonably interpreted as
relating to Breton's worries about the impending discovery of his
crimes against his own child. Whether the jury should have been
instructed to disregard this evidence in connection with the
charged crimes against other children (on the theory that the
marital communications privilege applies in that context) is a
question not before us as no such instruction was requested. See
Fed. R. Evid. 105 (stating that when evidence is admissible only
for a limited purpose, "the court, on timely request, must restrict
the evidence to its proper scope and instruct the jury
accordingly") (emphasis added); 21A Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice & Procedure: Evidence § 5065, at
329-30 (2d ed. 2005) ("[W]ithout a request the trial court does not
-20-
err in not giving [a limiting] instruction."). Consequently, we
cannot find that the district judge abused his discretion by
concluding that the exception to the marital communications
privilege for offenses committed against the child of either spouse
applied here. We find that the district judge did not err by
admitting Paradis's testimony about these statements.
B. Suggestive File and Chat Room Names
Breton next challenges the admission of file and chat
room names that allude to child pornography where no actual images
were recovered. He contends that this evidence was not relevant to
the charged crimes and that its admission at trial was unfairly
prejudicial and confusing.
Breton objected to the admission of this evidence on
these grounds before and during trial, thereby preserving these
issues for appeal. We review his preserved challenges to the
admission of this evidence for abuse of discretion. United States
v. Brown, 669 F.3d 10, 21 (1st Cir. 2012).
1. Relevancy
Breton first argues that file and chat room names
suggestive of child pornography were not relevant to the charged
crimes where no corresponding images were recovered. As we have
said before, "[a] relevancy-based argument is usually a tough
sell." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir.
2010). Evidence Rule 401 defines relevant evidence expansively as
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"'evidence having any tendency to make the existence of any fact
that is of consequence' more or less probable." Id. (quoting Fed.
R. Evid. 401). This is not a high bar, and we give a district
judge "considerable leeway in deciding whether the contested
evidence satisfies this . . . standard." Id.To prove that a defendant knowingly possessed child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) or knowingly
distributed child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) requires a showing of scienter. Courts, including
this one, consider file, chat room, and website names suggestive of
child pornography relevant to proving a defendant's knowledge of
such materials. See, e.g., United States v. Rogers, 714 F.3d 82,
86-87 (1st Cir. 2013) (finding that web browser history of
"numerous visits to websites related to, or with names indicative
of, child pornography" helped show defendant knowingly possessed
child pornography); United States v. Pires, 642 F.3d 1, 9 (1st Cir.
2011) ("[A] defendant's use of search terms associated with child
pornography can support a finding that he knew that the images
retrieved contained child pornography."); United States v. Fabiano,
169 F.3d 1299, 1306 (10th Cir. 1999) (explaining that defendant's
participation in "preteen" chat room for several months prior to
exchange of images helped show defendant was aware of nature of
images before he received them). Furthermore, evidence that a
person deliberately deleted or attempted to delete files containing
-22-
child pornography tends to show that the person was aware of the
files and their illicit nature. See Rogers, 714 F.3d at 87.
Here, Breton opposes the admission of file and chat room
names suggestive of child pornography where no actual images were
found on the computer. Specifically, he challenges the
introduction of registry file names like "pthc" ("preteen
hardcore") and "girl-in-tent-11-YO," ("11-year-old"), which were
found on the laptop without corresponding image files. He also
protests the admission of GigaTribe file names like "kids-teens-
women-porno-lolitas-preteens-real-key-movs-r@y-gold-hussyfans-
underage-girls-children-pedophilia-pthc" (naming known series of
child pornography), which were likewise found on the laptop without
image files. He further objects to the admission of Internet Relay
Chat log evidence of chat room names like "young-girl-sex" and
"dad-and-daughter-sex," which were also found on the laptop and not
associated with image files.
The district judge admitted this evidence over Breton's
objections because he believed the file and chat room names were
relevant to "the [g]overnment's effort to establish the scienter
requirement and to show what [Breton] was doing . . . on his
computers, even though there may not have been images in those
particular files." He found that "the combination of file names
and chat rooms cumulatively [could] be used to argue to the jury
that [Breton] was, in fact, involved in child pornography."
-23-
We agree. The presence of files with names indicative of
child pornography — even absent further proof of what, if anything,
those files contained — tends to make it more probable that Breton
knowingly was involved with child pornography. See, e.g., Rogers,
714 F.3d at 86-87. This is particularly true where actual images
of child pornography were found elsewhere on the same computer.
Moreover, prosecutors could argue that the fact that the hidden
files remained on the laptop without their visible counterparts
after Breton both concealed the laptop from police and selectively
wiped its hard drive suggests Breton deliberately attempted to
delete the files in toto and was aware of their content. See id.
at 87. This evidence easily satisfies the low bar of relevancy set
out in Rule 401.
2. Unfair Prejudice and Confusion
Breton next argues that evidence of file and chat room
names implying child pornography where no actual images were
recovered should have been excluded as unfairly prejudicial and
confusing. Though possessing Rule 401 relevancy, evidence may
nevertheless be excluded under Evidence Rule 403 "'if its probative
value is substantially outweighed by the danger of unfair prejudice
[or] confusion of the issues.'" United States v. Gentles, 619 F.3d
75, 87 n.4 (1st Cir. 2010) (quoting Fed. R. Evid. 403). However,
this rule protects defendants only against evidence that would
produce unfair prejudice, as "'[b]y design, all evidence is meant
-24-
to be prejudicial.'" United States v. Varoudakis, 233 F.3d 113,
122 (1st Cir. 2000) (quoting United States v. Rodriguez-Estrada,
877 F.2d 153, 156 (1st Cir. 1989)). Evidence produces unfair
prejudice when it "invites the jury to render a verdict on an
improper emotional basis." Id.We give great deference to a district judge's balancing
of probative value versus unfair prejudice. Gentles, 619 F.3d at
87. This is true even when a judge does not expressly explain the
Rule 403 balancing process on the record. See, e.g., United States
v. Smith, 292 F.3d 90, 98 (1st Cir. 2002) (determining that absence
of findings on record does not preclude meaningful appellate
review); United States v. Santagata, 924 F.2d 391, 394 (1st Cir.
1991) (quoting United States v. De La Cruz, 902 F.2d 121, 123 (1st
Cir. 1990)) ("'[O]n-the-record findings as to the probative
value/prejudicial effect balance' . . . are not always
necessary."); United States v. Foley, 871 F.2d 235, 238 (1st Cir.
1989) (finding no abuse of discretion in exclusion of evidence
despite absence of express findings). "'[O]nly rarely — and in
extraordinarily compelling circumstances — will we, from the vista
of a cold appellate record, reverse a district [judge's]
on-the-spot judgment concerning the relative weighing of probative
value and unfair effect.'" Gentles, 619 F.3d at 87 (quoting United
States v. Li, 206 F.3d 78, 84-85 (1st Cir. 2000)).
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Here, Breton objects to the admission of the file and
chat room names, even if relevant, on the grounds of unfair
prejudice and confusion. Because the district judge did not refer
directly to Rule 403 balancing on the record for this issue, Breton
posits that the judge either failed to conduct the requisite
analysis or reached an incorrect result. He says the probative
value of the file and chat room names was substantially outweighed
by the danger of unfair prejudice and confusion because "it could
not be determined whether there was actual child pornography in the
files" and "[t]he files could have contained images of anything,"
but the names insinuated that the files held pornographic content.
We disagree. Preliminarily, we note that the absence of
an express Rule 403 finding here on this particular piece of
disputed evidence does not mean the district judge failed to
perform this analysis. See Smith, 292 F.3d at 98. The judge's
handling of other disputed evidence demonstrates that he was aware
of his responsibility to weigh the relevant factors and perform
Rule 403 balancing prior to admitting such evidence. See De La
Cruz, 902 F.2d at 123 n.1. In fact, he performed precisely this
analysis on the record with respect to evidence of the previous
investigation of Breton for an unrelated computer crime and
excluded that evidence as a result. We may therefore assume that
the judge tacitly performed this same balancing with respect to the
evidence of file and chat room names before concluding that its
-26-
probative value won out over its potential for creating unfair
prejudice or confusion.
On this record as a whole, we can meaningfully review the
district judge's ruling, see Smith, 292 F.3d at 98, and we agree
with his determination. File and chat room names incorporating
lewd, obscene, or graphic terms suggestive of child pornography
are, of course, prejudicial to Breton, but not unfairly so. They
are not aimed to solicit an improper emotional response from the
jury. In fact, compared with other evidence offered at Breton's
trial — including actual images of child pornography and Paradis's
testimony identifying Breton and their young daughter in some of
those images — this evidence is rather mild. We trust the jury was
able to distinguish between files with and without corresponding
illicit images and to give each evidentiary submission the weight
it deserved. Also, Breton had ample opportunity to minimize the
risk of any confusion through cross-examination of Special Agent
Fasulo, who testified about the file and chat room names at trial.
When Breton's counsel asked Special Agent Fasulo whether he knew
what was contained in those files, Special Agent Fasulo admitted
that he did not know and that it was possible those files could
have contained something other than child pornography.
Furthermore, we see no "extraordinarily compelling
circumstances" here — and Breton offers none — that would warrant
reversal of the district judge's firsthand weighing of the
-27-
relative probative value and potential prejudicial or confusing
effect of this evidence. In consequence, we find the district
judge committed no abuse of discretion by admitting the file and
chat room names into evidence.
C. Sufficiency of the Evidence
Third, Breton challenges the sufficiency of the evidence
as to all three counts of his conviction, claiming the government
did not prove beyond a reasonable doubt that he produced, knowingly
possessed, or knowingly distributed child pornography.
Because Breton moved for judgment of acquittal both at
the close of the government's case and at the end of trial, we
review his preserved sufficiency claims de novo. United States v.
Howard, 687 F.3d 13, 19 (1st Cir. 2012). In doing so, we consider
the evidence, both direct and circumstantial, in the light most
favorable to the verdict. Id. We will reverse only if we find
that "even after 'crediting the government's witnesses and drawing
all reasonable inferences in its favor,' no levelheaded jury could
have found [Breton] guilty." United States v. Guerrier, 669 F.3d
1, 7 (1st Cir. 2011) (quoting United States v. Aranjo, 603 F.3d
112, 116 (1st Cir. 2010)). That Breton might develop "a plausible
theory of innocence" will not help him: "the issue is not whether
a jury rationally could have acquitted but whether it rationally
could have found guilt beyond a reasonable doubt." United States
v. Seng Tan, 674 F.3d 103, 107 (1st Cir. 2012). For these reasons,
-28-
challenging the sufficiency of the evidence is usually a longshot,
id., and Breton's attempts miss the mark.
1. Production
Breton first says the government lacked sufficient
evidence to prove he produced child pornography. 18 U.S.C.
§ 2251(a) criminalizes the use of a minor in any sexually explicit
conduct for the purpose of producing a visual depiction of that
conduct.17 The government's evidence on this charge centered around
three photographs of the genitals of an unidentified female child,
dubbed "Minor A," found in the laptop's hidden Yahoo Messenger
folder. The government averred that Breton had taken these
photographs of his young daughter.
Breton claims the jury did not have sufficient evidence
to conclude beyond a reasonable doubt that he produced these
images. Specifically, he cites a lack of computer forensic
evidence conclusively linking him to the Minor A images and says
17
18 U.S.C. § 2251(a) reads in relevant part:
Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of producing
any visual depiction of such conduct . . . shall be
punished as provided . . . if that visual depiction was
produced or transmitted using materials that have been
mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by
computer . . . .
Breton has never disputed that the Minor A images qualify as child
pornography and satisfy the interstate commerce element.
-29-
a "biased" Detective Gagne was "desperate" to connect him to the
photographs even if the evidence did not point in his direction.
He argues Detective Gagne "used" Paradis to try to establish that
Minor A was their daughter, and says "[t]he issue becomes the
influence a detective can have on the case if [she has] a scared
and emotional mother, trying to protect her child, as the only
witness to identify a child in an image of child pornography in
which the child's face does not appear." His argument essentially
boils down to misidentification due to slanted police work: Breton
says he did not take the photographs and Minor A was not his
daughter, but Detective Gagne was fixated on demonstrating the
opposite.
However, viewing the evidence, as we must, in the light
most favorable to the verdict, we cannot help but conclude that a
sound-minded jury could find Breton produced the images in
question. The government's evidence linking Breton and his
daughter to the Minor A photographs was manifold. It included,
among other things: Paradis's identification of Minor A as her and
Breton's daughter based on Minor A's distinctive thigh indentation,
much-worn onesie, and unique, homemade blanket; Paradis's
identification of the adult finger in one photograph as Breton's
based on its appearance and its short fingernail; computer forensic
evidence showing that the Minor A images were distributed from the
laptop shortly after an iPhone registered to Breton was connected
-30-
to the laptop, at a time of day when Breton was not at work; and
messages posted on a Russian image-sharing website by a user named
Shadowwind345 (which matched the Yahoo Messenger username that the
government argued belonged to Breton) asking other users to trade
"daughter pics" and offering to share "my private daughter stuff."
Based on this evidence, a rational jury could conclude
that Breton produced sexually explicit photographs of his daughter
and offered to trade and did trade them with others. It was up to
the jury to weigh this evidence against Breton's claims of
inconclusive computer forensics and biased police work. Viewing
the evidence in the light most favorable to the verdict, we cannot
say a levelheaded jury could not have found Breton guilty as
charged.
2. Possession
Breton next says the government failed to put forth
sufficient evidence to prove that he knowingly possessed child
pornography. 18 U.S.C. § 2252A(a)(5)(B) prohibits knowing
possession of any material that contains an image of child
pornography.18 Breton's challenge focuses on the element of
18
18 U.S.C. § 2252A(a)(5)(B) reads in relevant part:
[Any person who] knowingly possesses, or knowingly
accesses with intent to view, any . . . material that
contains an image of child pornography that has been
mailed, or shipped or transported using any means or
facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means,
including by computer, or that was produced using
-31-
knowing possession. In particular, he claims he could not have
knowingly possessed the images of child pornography found in the
laptop's hidden Yahoo Messenger folder because he was not aware the
folder existed.
To satisfy the knowing possession requirement, the
government must demonstrate that Breton possessed, and knew he
possessed, child pornography. Rogers, 714 F.3d at 86. Such
knowledge often is shown through circumstantial evidence. Pires,
642 F.3d at 8-9. For example, a defendant's history of visits to
websites with a child pornography connection or use of search terms
associated with child pornography can support a finding that the
defendant knew the images he retrieved contained child pornography.
See Rogers, 714 F.3d at 86; Pires, 642 F.3d at 9. Storage of child
pornography images in a computer directory affiliated with
internet-sharing can indicate those images were downloaded from or
transmitted to those websites. Rogers, 714 F.3d at 86. And a
defendant's intentional attempt to delete child pornography files,
such as by placing them in a computer's recycle bin, can suggest he
was aware of the files and their contents. Id. at 87.
materials that have been mailed, or shipped or
transported in or affecting interstate or foreign
commerce by any means, including by computer [shall be
punished as provided].
Again, Breton has never disputed that the images found qualify as
child pornography and satisfy the interstate commerce element.
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Breton's argument that he could not have knowingly
possessed the images of child pornography found in the laptop's
hidden Yahoo Messenger folder therefore misses the point. Though
the government concedes Breton may not have known that Yahoo
Messenger had saved these particular image files in this particular
location, the government introduced considerable other evidence
that Breton knew the laptop contained images of child pornography.
This evidence included a history of visits to websites and chat
rooms connected with child pornography (such as Image Source Russia
and Internet Relay Chat rooms named "young-girl-sex" and "dad-and-
daughter-sex"); web searches for terms associated with child
pornography (e.g., "12YO," "daughter," "naked," "girl," and "sex");
and the discovery of child pornography images in the hidden Yahoo
Messenger file affiliated with internet-sharing. It also included
evidence that Breton concealed the laptop and selectively wiped its
data before Paradis handed it over to police, which could suggest
Breton knew the laptop held child pornography and wanted to get rid
of it before the police found it. From this and other evidence
presented at trial, a jury reasonably could infer that Breton
knowingly possessed child pornography beyond a reasonable doubt.
We will not disturb its finding.
-33-
3. Distribution
Last, Breton says the government did not provide
sufficient evidence to prove he distributed child pornography. 18
U.S.C. § 2252A(a)(2) proscribes the knowing distribution of child
pornography.19 To demonstrate that Breton distributed child
pornography, the government relied primarily on Special Agent
Fasulo's forensic analysis of the laptop and the Yahoo Messenger
program. Special Agent Fasulo ran tests to determine how the Yahoo
Messenger program works. He testified that he could ascertain
whether a particular file created by Yahoo Messenger had been sent
or received based on whether its name contained a certain sequence
of symbols and letters. Based on this information, he opined that
certain files containing images of child pornography on the laptop
had been sent or received.
Breton argues that Special Agent Fasulo's testing was
incomplete, inaccurate, and incapable of supporting a finding that
he had distributed child pornography beyond a reasonable doubt. To
19
18 U.S.C. § 2252A(a)(2) reads in relevant part:
[Any person who] (2) knowingly receives or distributes--
(A) any child pornography that has been mailed, or using
any means or facility of interstate or foreign commerce
shipped or transported in or affecting interstate or
foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has
been mailed, or using any means or facility of interstate
or foreign commerce shipped or transported in or
affecting interstate or foreign commerce by any means,
including by computer [shall be punished as provided].
-34-
support his claim, Breton says Special Agent Fasulo's methods were
flawed because he did not use the precise versions of Microsoft
Windows and Yahoo Messenger that were installed on the laptop when
he simulated sending and receiving files. While the laptop ran
Windows Vista Home, Special Agent Fasulo's test computers ran
Windows Vista Business. Furthermore, because someone had
uninstalled Yahoo Messenger and used wiping software on the laptop
before the police retrieved it from Paradis, Special Agent Fasulo
could only guess at which version of Yahoo Messenger had run on the
laptop previously. In the end, Breton says, Special Agent Fasulo
could not say with certainty whether the versions of those programs
that were installed on the laptop would have behaved or interacted
identically to the versions of those programs that Special Agent
Fasulo actually tested.
However, this argument is unavailing. Breton's counsel
rigorously cross-examined Special Agent Fasulo on this point and
others relating to the testing process at trial. Breton's counsel
asked specific questions about variations among different versions
of Yahoo Messenger, including how they exchanged files and their
interactions with Windows Vista. This questioning challenged the
reliability of Special Agent Fasulo's testing process and
methodology. It was for the jury to decide whether to trust
Special Agent Fasulo's testimony and analysis over Breton's
criticisms of his procedures. Crediting this evidence and drawing
-35-
all reasonable inferences in the verdict's favor, we find that a
jury could (and did) rationally find Breton guilty of distribution.
Accordingly, the last of Breton's sufficiency challenges fails, and
we find sufficient evidence supports the jury's conviction on all
three counts.
D. Sentencing
Finally, Breton challenges his sentence. Breton claims
the district judge erred by computing a Guidelines sentence of 720
months because none of the counts of his conviction permits the
imposition of a life sentence and, according to Breton, the United
States Sentencing Commission (the "Commission") "caps a life
sentence at 470 months." We will add more detail to Breton's
argument in a moment. At this point, though, we note that Breton
in fact received a sentence of 340 months of imprisonment, plus
fifteen years of supervised release.
We review a district judge's sentence for reasonableness,
which is a two-part inquiry. Gentles, 619 F.3d at 88 (quoting
United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). We
begin by determining whether the district judge committed any
procedural errors, such as, among other things, "'failing to
calculate (or improperly calculating) the Guidelines range.'" Id.(quoting Politano, 522 F.3d at 72). Where the district judge has
made no such error, we then consider "the substantive
-36-
reasonableness of the sentence actually imposed and review [it] for
abuse of discretion." Politano, 522 F.3d at 72.
Within this rubric, we afford the district judge wide
discretion, as "after the [judge] has calculated the [Guidelines
range], 'sentencing becomes a judgment call.'" Id. at 73 (quoting
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). That
we, "'sitting as a court of first instance, would have sentenced
the defendant differently,'" is not a basis for reversal. United
States v. Stone, 575 F.3d 83, 94 (1st Cir. 2009) (quoting Martin,
520 F.3d at 92). Rather, we defer to the sentence as reasonable so
long as it is supported by "'a plausible sentencing rationale'" and
reaches "'a defensible result.'" See Gentles, 619 F.3d at 89(quoting Martin, 520 F.3d at 96).
1. Breton's Sentencing Hearing
Breton's sentencing hearing took place on October 12,
2012. The district judge began by recounting the materials he had
received and reviewed since the pre-sentence conference, including
the parties' sentencing memoranda with accompanying exhibits and
the revised pre-sentence report with Breton's objections. After
hearing from the victims20 and Breton, the district judge found the
facts as set out in the revised pre-sentence report.
20
In addition to Paradis, who spoke on behalf of herself and
the couple's daughter, the judge received victim impact statements
from several of the victims appearing in photographs found on the
laptop who were identified through the National Center for Missing
and Exploited Children database.
-37-
Next, the district judge calculated Breton's Guidelines
sentence range. Pursuant to the Guidelines' rules of grouping, he
grouped counts one (production) and three (distribution). See
U.S.S.G. § 3D1.2. He then set the base offense level for count two
(possession) at eighteen. See U.S.S.G. § 2G2.2. Adopting the pre-
sentence report's recommended adjustments, he calculated the total
offense level for count two to be thirty-four.21 For counts one and
three combined, he set the base offense level at thirty-two. See
U.S.S.G. § 2G2.1. Again applying the pre-sentence report's
recommended adjustments, he determined that a total offense level
of forty-three governed.22 Based on Breton's lack of past criminal
history, he placed Breton in criminal history category I. Breton
does not challenge any of these classifications or calculations.
21
The district judge made the following adjustments: He added
two levels because the materials included images of prepubescent
minors; two levels because Breton distributed the materials; four
levels because some of the images portrayed sadistic or masochistic
conduct or other depictions of violence; two levels because the
images were found on a computer; four levels based on the quantity
of images found; and two levels for obstruction of justice because
Breton's wiping of the laptop was designed to impede the
investigation of his conduct.
22
The district judge made the following adjustments: He added
four levels because the victim was less than twelve years old; two
levels for the sexual contact; two levels because Breton
distributed at least one image of the victim; two levels because he
was the parent of the minor victim; and two levels for the
obstruction of justice. He declined to include a reduction for
acceptance of responsibility, but he reduced the total offense
level from forty-four to forty-three because forty-four is higher
than any level in the Guidelines table.
-38-
At total offense level forty-three and criminal history
category I, the Guidelines sentence was life in prison. See
U.S.S.G. § 5A (Sentencing Table). However, as the district judge
noted, a maximum term of life was not available under any of the
charged statutes: the production count carried a minimum of fifteen
years and a maximum of thirty years, see 18 U.S.C. §§ 2251(a),
2251(e); the possession count set a maximum of ten years, see 18
U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2);23 and the distribution count
provided for a minimum of five years and a maximum of twenty years,
see 18 U.S.C. §§ 2252A(2), 2252A(b)(1). Under the Guidelines,
"[w]here the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily
authorized maximum sentence [is] the guideline sentence." U.S.S.G.
§ 5G1.1(a). Accordingly, the district judge added the maximum
statutorily authorized penalties for each count of Breton's
conviction — thirty years for count one, ten years for count two,
plus twenty years for count three — to set Breton's total
Guidelines sentence at sixty years, or 720 months.
23
18 U.S.C. § 2252A(b)(2) sets a maximum term of ten years
generally, but it raises the maximum to twenty years for a
violation of 18 U.S.C. § 2252A(a)(5)(B) "if any image of child
pornography involved in the offense involved a prepubescent minor
or a minor who had not attained 12 years of age." Accordingly, it
would seem based on the facts of this case that the appropriate
maximum on the possession count would in fact be twenty years,
rather than ten years. However, the district judge did not use the
twenty-year maximum to calculate Breton's Guidelines sentence and
neither party has challenged this aspect of his calculation, so we
need not address this distinction here.
-39-
Breton objected to setting the Guidelines range at 720
months. Relying on an appendix to the Commission's 2011 Sourcebook
of Federal Sentencing Statistics (the "Sourcebook"), Breton argued
that the Commission had capped a life sentence at 470 months,
meaning that a 720-month sentence would far exceed what was
considered a life sentence. Because the charged statutes did not
authorize imposition of a life sentence, he argued the statutory
maximum (and, consequently, the Guidelines sentence) that applied
to him must be below 470 months. Returning to the Guidelines,
Breton argued he should be subject to the next-highest Guidelines
sentence offered below life imprisonment: 360 months. See U.S.S.G.
§ 5A (Sentencing Table).
The section of the Sourcebook to which Breton referred
sets forth a description of the variables used to generate
statistics about federal sentencing. The relevant language reads
as follows:
Length of Imprisonment
Using sentencing information obtained from the
Judgment and Commitment Order, Length of
Imprisonment is reported as the mean and
median terms of imprisonment . . . ordered for
cases committed to the Bureau of Prisons
. . . . In most cases for which the exact
term is unknown, the Judgment and Commitment
Order merely specifies a sentence of time
served. Prior to fiscal year 1993, the
Commission defined life sentences as 360
months. However, to reflect life expectancy
of federal criminal defendants more precisely
and to provide more accurate length of
imprisonment information, life sentences and
-40-
all sentences above 470 months are now capped
at 470 months.
Sourcebook, Appendix A, at 3 (emphasis added). Similar language
describes variables used to tabulate sentence length. Id.
The district judge disagreed with Breton's interpretation
of this text. Rather than "capping" life sentences as effectuated
at 470 months, this was "an explanation of how the Commission staff
compiled their statistics and data." He went on:
This . . . comes from a source book of
sentencing statistics where the Commission
tries to put together facts and figures to
show what is going on and where there is no
identified length of sentence, the
statistician has to insert something so that
they can add things in meaningful numbers and
I understand that's where the 470 months comes
from, an attempt to reflect the life
expectancy of people who are committed for
life.
In other words, the Sourcebook's explanation had nothing to do with
calculating the Guidelines sentence range.
Consequently, the district judge maintained that Breton's
Guidelines sentence range was up to 720 months. He considered
whether downward departures were warranted but applied none because
the Guidelines generally forbid such departures in child
pornography cases. See U.S.S.G. § 5K2.0. He then weighed the
statutory factors to be considered in imposing a sentence under 18
U.S.C. § 3553(a). On the one hand, the abhorrent nature of the
offense (particularly against Breton's own child) and the need for
adequate deterrence called for harsh punishment. See 18 U.S.C.
-41-
§ 3553(a). On the other, Breton's history and characteristics were
"generally good:" this was his first offense, and by all accounts
he appeared to be "intelligent, hardworking, [and] respected by his
employer, his employees, [and his] family." See id. According to
the district judge, a strong sentence and a term of supervised
release would protect the public. See id. The judge also
expressly considered the interests of proportionality, promoting
respect for the law, imposing just punishment, and avoiding
unwanted sentence disparities among defendants with similar records
who have been found guilty of similar conduct. See id.
Finally, the district judge observed that his overall
duty was to impose a procedurally and substantively reasonable
sentence. In his view, a 720-month sentence was plainly not
reasonable. The government had argued that a twenty-five to
thirty-year sentence would be appropriate; Breton argued that a
fifteen-year sentence (the statutory minimum for count one) would
be more reasonable. Considering the factors outlined above, the
judge agreed with the government. He settled on a sentence of 340
months (twenty-eight years and four months) for count one, to run
concurrently with 120 months for count two and 240 months for count
three, followed by a fifteen-year term of supervised release.
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2. Procedural and Substantive Reasonableness
On appeal, Breton alleges a single procedural error: the
improper calculation of his Guidelines sentence based on what he
claims is an incorrect understanding of what constitutes a life
sentence. Relying on the Sourcebook, he reprises his trial
argument that any sentence above 470 months is tantamount to a life
sentence, so the district judge was required to set his Guidelines
sentence below that amount in order to avoid procedural error.
Like the district judge, we reject Breton's argument.
Though 470 months may be an accurate statistical representation of
the actual length of many life sentences — and may indeed be
equivalent to a life sentence for many individuals — there is no
"cap" within the Guidelines that limits life sentences to 470
months, and we have no reason to believe the Commission intended to
set such a limit by publishing its statistical analysis.
Accordingly, the district judge followed appropriate procedure
when, upon finding that the recommended Guidelines range of a life
sentence was unavailable for the crimes charged, he combined the
respective statutory maximum penalties to set Breton's Guidelines
sentence at 720 months. See U.S.S.G. § 5G1.1(a). There was no
procedural error here.
Furthermore, we cannot say the district judge abused his
discretion by imposing a sentence of 340 months. This term is less
than half the length of the Guidelines sentence that Breton opposed
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so vigorously, and it is twenty months below the maximum sentence
for count one of Breton's conviction. See 18 U.S.C. §§ 2251(a),
2251(e). It represents the district judge's comprehensive
understanding of the facts and careful weighing of the § 3553(a)
factors at play in this case. Moreover, Breton himself offers no
argument against the substantive reasonableness of the sentence
actually imposed at this stage of the case.
We have previously expressed our view that the Guidelines
sentence ranges that operate in child pornography cases are harsher
than necessary. See Stone, 575 F.3d at 97. However, under the
applicable Guidelines, the sentence imposed here was both
procedurally and substantively reasonable. Accordingly, Breton's
challenge fails.
III. Conclusion
For the reasons stated, we affirm Breton's convictions
and his sentence.
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