United States v. Santiago-Colon , 918 F.3d 223 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 15-2088
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]
Before
Lynch, Circuit Judge,
Souter,* Associate Justice,
and Kayatta, Circuit 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.
March 19, 2019
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
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
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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
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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
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recommendation, but argued that nothing less than ten years per
victim would be appropriate.
The district court agreed with the guidelines
calculations in the PSR. The court also considered the specific
characteristics of the defendant, including his use of his position
of trust and influence in the community. The court noted that
four victims testified at trial, and that one other victim, John
Doe 4, refused to testify because he "didn't want to go through
the same agony to testify here." (The count in the indictment
relating to John Doe 4 had been dismissed prior to trial because
he did not want to testify).
The court overruled Santiago-Colon's objection to the
information in the PSR about John Doe 4, stating that the
information in the PSR "does not . . . mean that the defendant was
convicted on such count," but that "the information is still
relevant conduct as to which sufficient information was gathered,
the witness was interviewed, the information was made available in
discovery." The court also rejected Santiago-Colon's generalized
objection that the sentence was excessive and greater than
necessary, stating that Santiago-Colon had not shown any
guidelines calculation error and the sentence was appropriate.
The court sentenced Santiago-Colon, then age fifty, to
a term of forty years' imprisonment on each count, to be served
concurrently. The court had discretion to order that the terms of
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imprisonment run consecutively, but chose not to do so. See 18
U.S.C. § 3584. Santiago-Colon timely appealed his sentence.
II.
"Preserved claims of sentencing error are typically
reviewed for reasonableness, under an abuse of discretion rubric."
United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).
"The review process is bifurcated: we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." United States v.
Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
A. Procedural Reasonableness
Santiago-Colon first argues that information in the PSR
about John Doe 4, related to the count that was dismissed before
trial, was unreliable, because there was "no official
documentation in the record" about John Doe 4, who did not testify
at trial and for whom there was no written declaration or police
report.
There are two responses, each of which disposes of the
argument. First, the court could easily have concluded that the
information was not unreliable and was relevant conduct. In
drafting the PSR's statements concerning John Doe 4, the probation
officer relied on the official reports of the government's case
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agent who interviewed John Doe 4 during the criminal investigation
of Santiago-Colon.
Second, "[t]he defendant may object to facts in the PSR,
but 'if [his] objections to the PSR are merely rhetorical and
unsupported by countervailing proof, the district court is
entitled to rely on the facts in the PSR.'" United States v.
Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (second alteration in
original) (quoting United States v. Cyr, 337 F.3d 96, 100 (1st
Cir. 2003)). Santiago-Colon did not provide any countervailing
evidence about the challenged information. Santiago-Colon argues
that the government only provided John Doe 4's initials, and would
not give defense counsel John Doe 4's full name. But Santiago-
Colon never asked the district court to order the government to
release John Doe 4's name, and only argued that the information in
the PSR about John Doe 4 was unreliable. Santiago-Colon takes the
same all-or-nothing approach on appeal.1
Next, Santiago-Colon argues that the district court
committed a Kimbrough error when it did not "adequately consider"
1 Santiago-Colon's reliance on United States v. Hinkley,
803 F.3d 85 (1st Cir. 2015), is misplaced. In that case, the
district court applied a five-level enhancement for a pattern of
activity involving prohibited sexual contact between the defendant
and a minor, based on police reports and the testimony of the agent
that investigated the minor's complaint. See id. at 92. Hinkley
affirmed that "[t]he sentencing court has broad discretion to
accept relevant information without regard to its admissibility
under the rules of evidence applicable at trial, as long as it
concludes that the information has sufficient indicia of
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his policy argument about the alleged lack of empirical basis for
these particular guidelines. See Kimbrough v. United States, 552
U.S. 85, 109 (2007). Not so. The district court expressly stated
that it had reviewed Santiago-Colon's memorandum about "the lack
of empirical data for the guidelines as drafted." The court
rejected the argument, which was within the court's discretion.
United States v. Stone, 575 F.3d 83, 90 (1st Cir. 2009) ("[T]he
district court's broad discretion obviously includes the power to
agree with the guidelines.").
Further, "[e]ven though a guideline is affected by
congressional adjustment, a sentencing court may rely on it." Id.
at 93. As we said in Stone, "[w]e see no reason why it would be
somehow invalid for a district court, in its broad sentencing
discretion, to conclude that its reason for rejecting a Kimbrough
variance is that it values congressional input."2 Id.B. Substantive Reasonableness
Santiago-Colon argues that his sentence was "in
practical terms, a life sentence," and was excessive because it
reliability." Id. "Even conduct that did not lead to a conviction
may be considered." Id. at 92-93 (citing U.S.S.G. § 4B1.5 cmt.
4(B)(ii)).
2 Santiago-Colon argues in passing that the district court
relied on Santiago-Colon's former wife's testimony that "other
boys stayed at his house, insinuating that they also were victims."
He argues that "[t]he record did not support the ominous meaning
given to that statement." The district court stated that the
victims who testified at trial were "among the individuals or
youngsters that use[d] to stay at the house," and that Santiago-
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did not give him an opportunity to prove to the court that he is
capable of rehabilitating himself.
The district court considered the factors outlined in 18
U.S.C. § 3553(a), including Santiago-Colon's abuse of his position
of trust and power in the community, the duration of the sexual
abuse, the long-term harm to the victims and their families, the
risk Santiago-Colon posed to society in general, the need to
promote respect for the law, and the need to provide just
punishment. Moreover, despite the evidence of guilt, Santiago-
Colon throughout maintained he was innocent of the charges --
hardly an indication of intent to rehabilitate.
"To undermine the substantive reasonableness of a
within-the-range sentence, a defendant must 'adduce fairly
powerful mitigating reasons and persuade us that the district judge
was unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be "reasonable."'" United
States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011) (quoting
United States v. Navedo–Concepción, 450 F.3d 54, 59 (1st Cir.
2006). Santiago-Colon has not done so here.
Affirmed.
Colon's former wife stated that, "even as to these same
individuals," the defendant followed the pattern of "taking the
juveniles to his bedroom and at some point in time when the lights
were to be turned out she was dispatched to her bedroom along with
his son and no one else knew what happened." These statements are
supported by the record.
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