United States v. Benoit ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1476
UNITED STATES OF AMERICA,
Appellee,
v.
ZACHARY BENOIT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Dorothy E. Graham, Assistant Federal Public Defender, on
brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Scott
W. Murray, United States Attorney, on brief for appellee.
September 1, 2020
THOMPSON, Circuit Judge. The defendant, Zachary Benoit,
pleaded guilty to one count of transporting child pornography and
one count of possessing child pornography. Benoit challenges the
substantive reasonableness of his prison sentence and argues the
district court abused its discretion when it imposed two special
conditions of supervised release. After careful consideration, we
affirm.
BACKGROUND
A. The Crimes
Because Benoit pleaded guilty, we draw the facts of the
case from the transcript of the sentencing hearing and undisputed
portions of the Presentence Report ("PSR"). See United States v.
Bermúdez–Meléndez, 827 F.3d 160, 162 (1st Cir. 2016).
In the summer and fall of 2017, New Hampshire law
enforcement was investigating the online sharing of child sexual
abuse images. The investigation identified Benoit's IP address as
one of the computers downloading and sharing hundreds of images
and videos of children being sexually and physically abused. After
executing a search warrant at Benoit's home, police uncovered
multiple computers and hardware for digital storage. Officers
confiscated and examined those devices and ultimately discovered
299 pictures and 418 videos depicting the sexual and physical abuse
of children.
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Benoit agreed to be interviewed by a detective and
disclosed several things that prove relevant to our analysis.
Benoit explained that he used multiple file sharing platforms to
acquire child pornography. He admitted knowing that one of the
platforms automatically permitted other users to access files from
his library of child pornography and that he used another
application to trade child pornography files with another user.
He sent one user about 50 child pornography files in exchange for
100 similar files.
Benoit was not particularly discriminatory, disclosing
to the detective that he liked all types of child pornography,
though he preferred images of young girls. He built his library
of pornography based on the searches of "other pedophiles,"
deleting files he downloaded if the children in them were "too
young," which he explained was a child under five or six years
old. He directed the detective to a file folder that had five
videos depicting extensive sexual abuse and physical torture of a
child under two years old. He described this folder as
"disgusting" but held onto it. His interests in pornography, he
declared, had become extreme and offensive since he first started
downloading these images.
When asked about physical contact with children, Benoit
denied ever abusing his own son or any child. He further denied
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speaking to a child or to anyone representing themselves to be a
child online.
In 2018, a grand jury indicted Benoit for Transportation
of Child Pornography, in violation of 18 U.S.C. § 2252(a)(1), and
Possession of Child Pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B).
B. Dr. Guidry's Assessment
On September 18, 2018, at the request of his attorney,
Benoit met with a psychologist, Dr. Laurie L. Guidry (an expert
hired by the defendant), for a psychosexual risk assessment.
Benoit reported that he started masturbating to images of child
sexual abuse when he was twenty-three years old (he was twenty-
seven when he was arrested in this case). Benoit explained he
learned he could download pornographic videos and started to view
pornography that depicted pre-teens and then prepubescent females.
While he did not prefer a particular age group, he did not like
toddlers and babies, so, if he was searching for pornography, he
would search for content depicting children aged nine years and
older. Though he sometimes downloaded pornography that included
the torture of children, Benoit said that he was not interested in
material that indicated force. He also acknowledged that he
understood children could not consent to sexual activity, and he
again denied that he ever pursued or engaged in sexual contact
with a child. At age eight, he divulged, he and his four-year-
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old step-sister engaged in sexual misconduct.1 When his parents
discovered this behavior, they stopped it and got Benoit into
counseling.
Dr. Guidry diagnosed Benoit with patterns of social
anxiety hindering his ability to have comfortable interpersonal
relationships and Dysthymic Disorder because he presented with
symptoms of a generally depressed mood. Dr. Guidry determined
that when comparing Benoit to other child pornography offenders,
he "present[ed] a relatively low risk for recidivating with a
contact sexual offense." This was based, in part, on what Dr.
Guidry described as Benoit's "social phobia and reluctance to
establish interpersonal connections" making it unlikely he would
act on a sexual interest in children. Dr. Guidry further opined
that Benoit's risk of committing another online sexual offense was
"elevated if untreated but manageable if his psychological
vulnerabilities are adequately addressed in treatment."
C. The Guilty Plea and Sentencing
On November 7, 2018, Benoit pleaded guilty without a
plea agreement. Six month later, the District Court held Benoit's
sentencing hearing. The District Court calculated Benoit's total
offense level to be 35 and his criminal history category to be I,
1 The PSR noted this and that Benoit reported to probation
that he was sexually abused by an eight- or nine-year-old neighbor
when he was approximately five years old.
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yielding a sentencing guideline range of 168 to 210 months.2 Benoit
did not object to this calculation. Citing the number of files in
Benoit's possession, the amount of violence in some of the images,
and Benoit's practice of sharing the images with others, including
trading files for more child pornography, the government
recommended a 168-month sentence. Defense counsel requested a 60-
month sentence, arguing that, per Dr. Guidry's conclusion (whose
report was filed under seal with Benoit's sentencing memo), Benoit
presented a low risk of committing a contact sexual offense upon
release, Benoit was cooperative with investigators, and he
complied with all supervision conditions while he was released
after his arrest. The defendant was meted out a 156-month prison
term.
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The court relied on the PSR to reach this conclusion. The
PSR calculated Benoit's base offense level to be a 22 and
recommended a two-level increase "because the material involved
prepubescent minors who had not attained the age of 12," a five-
level increase "because the offense involved the distribution for
the receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain," a four-level increase "because the offense
involved material that portrayed sadistic conduct," a five-level
increase "because the offense involved more than 600 images," and
a total of a three-level decrease for acceptance of responsibility.
The PSR also recommended a two-level increase "because the offense
involved the use of a computer," but the defendant objected to
this increase, arguing that this enhancement would apply in almost
every child pornography case and would thus defeat the purpose of
enhancements (which are supposed to increase a sentence where the
conduct is worse than the typical conduct of such an offense).
The district court agreed with the defendant and found that the
enhancement for using a computer should not apply. In total, those
calculations resulted in the total offense level of 35.
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Backing up for a moment, probation also recommended that
Benoit's conditions of supervised release include restrictions on
his contact with children. Specifically, the PSR included a
recommended condition, Condition #1, that Benoit be prohibited
from direct contact with any child under the age of 18, including
his own son, without the permission of his probation officer.
Condition #1 defined direct contact as "written communication, in-
person communication, or physical contact," but not "incidental
contact during ordinary daily activities in public places." The
PSR also included a recommended condition, Condition #6, that
Benoit not go "any place where [he] know[s] children under the age
of 18 are likely to be, including parks, schools, playgrounds, and
childcare facilities."
"Unreasonable" is how Benoit framed his objection to
these conditions. Both, he argued, would restrict his contact
with his son and any future children he may have, thus
"interfer[ing] with his ability and right to raise his own
children."
Disagreeing, the district court found the supervised
release conditions to be "appropriate because . . . they are
reasonably related to the Section 3553(a) factors; they do not
involve any greater deprivation of liberty than is necessary; and
[they are] consistent with the policy statements issued by the
Sentencing Commission under the facts of this case." The court
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amended Condition #6 to prohibit Benoit from going to places where
he knows children are likely to be only without permission from
his probation officer. With that change to Condition #6, the
district court imposed Conditions #1 and #6 (as well as other
conditions not relevant here).
OUR TAKE
On appeal, Benoit asks us to review both the length of
his prison sentence and the special conditions restricting his
contact with children, protestations he made below. We begin our
analysis with Benoit's term of incarceration by considering
whether the sentencing judge so poorly balanced the relevant
considerations that the resulting sentence was unreasonable. We
then turn to Benoit's argument about his contact with children,
specifically his three-year-old son, after his release from
prison.
A. Benoit's 156-Month Sentence
We review Benoit's sentence for an abuse of the
sentencing judge's discretion. United States v. Perretta, 804
F.3d 53, 56 (1st Cir. 2015). "The touchstone of abuse of
discretion review in federal sentencing is reasonableness."
United States v. Vargas–Dávila, 649 F.3d 129, 130 (1st Cir. 2011)
(citing Gall v. United States, 552 U.S. 38, 46 (2007)). A sentence
is substantively unreasonable (and the sentencing judge has
therefore abused his discretion) "only if it falls beyond the
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expansive 'universe of reasonable sentencing outcomes.'" United
States v. Rodríguez-Torres, 939 F.3d 16, 43 (1st Cir. 2019)
(quoting Bermúdez-Meléndez, 827 F.3d at 167). Ever mindful that
"[r]easonableness is itself an inherently fluid concept,"
Bermúdez-Meléndez, 827 F.3d at 167, we affirm where the sentencing
judge "gave a plausible explanation and reached a defensible
result," United States v. Chisholm, 940 F.3d 119, 132 (1st Cir.
2019) (citation omitted), cert. denied, 140 S. Ct. 1224 (2020).
Put another way, we do not reverse simply because we would have
sentenced the defendant differently. United States v. Martin, 520
F.3d 87, 92 (1st Cir. 2008).
Before imposing a sentence, the district court must
calculate the sentencing guideline range, which serves as a
"'starting point and the initial benchmark,' but which may not be
presumed reasonable." United States v. Stone, 575 F.3d 83, 94
(1st Cir. 2009) (quoting Gall, 552 U.S. at 49). The district court
considers the factors listed in 18 U.S.C. § 3553(a) and imposes "a
sentence sufficient, but not greater than necessary" to achieve
the sentencing statute's goals of appropriately punishing the
defendant's conduct, deterring future unlawful conduct, protecting
the public from the defendant, and providing the defendant with
the care he needs. 18 U.S.C. § 3553(a). The court then evaluates
the defendant's conduct and history through the prism of the
sentencing guidelines range and sentencing factors to select a
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sentence from the "universe of reasonable sentencing outcomes,"
Bermúdez-Meléndez, 827 F.3d at 167. "A sentencing court is under
a mandate to consider [that] myriad of relevant factors, but the
weighting of those factors is largely within the court's informed
discretion." United States v. Hassan-Saleh-Mohamad, 930 F.3d 1,
9 (1st Cir. 2019) (quoting United States v. Clogston, 662 F.3d
588, 593 (1st Cir. 2011)).
Benoit's argument that his sentence is substantively
unreasonable breaks down to two, connected points. Benoit argues
that the sentencing guidelines are especially harsh for child
pornography offenses and the sentencing court gave the guidelines
"undue weight." Relatedly, according to Benoit, while the court
overvalued the guidelines, it undervalued his mitigating evidence,
including that he had no prior criminal history, that he cooperated
with law enforcement, and the findings in Dr. Guidry's report.
Our review of the sentencing transcript reveals that
Benoit's argument lacks any factual support in the record.
Beginning with his argument about the guidelines, we again
recognize that the sentencing guidelines punishing child
pornography crimes "are very stern," Clogston, 662 F.3d at 593
and, in some circumstances, are "harsher than necessary," Stone,
575 F.3d at 97. Even where the guidelines suggest a long prison
term, a sentence is not substantively unreasonable where the
sentencing court considers the guidelines along with the § 3553(a)
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factors and the details of a defendant's case. See Hassan-Saleh-
Mohamad, 930 F.3d at 9. Here, the sentencing court explicitly
addressed these concerns, noting that "many courts" have in fact
found the child pornography guidelines enhancements to be
"problematic." In apparent agreement with this observation, the
court applied what it determined was a "reasonable variance" and
sentenced Benoit to a sentence one year shorter than the shortest
sentence within the guidelines.
We next search the record for support that the court, as
Benoit claims, improperly disregarded mitigating evidence. We are
left wanting. The district court announced its sentencing
determination expressly mentioning that Benoit
 had not committed any contact offenses
 was sexually abused as a child
 had no prior criminal record
 had a good work history
 had cooperated with law enforcement during the
investigation
 had complied with all release conditions, and
 was found by Dr. Guidry to be a low risk of
committing a contact sexual offense and an elevated
risk of recommitting an online sexual offense only
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if his psychological vulnerabilities were left
untreated.
The court considered this mitigating evidence and
weighed it against other relevant factors, such as the seriousness
of Benoit's offenses, the impact of child pornography on victims,
Benoit's images depicting "very young children and extremely
sadistic conduct," and Benoit's five-year "fixat[ion] on child
pornography."
Perhaps this is why Benoit does not quite argue that the
sentencing judge outright failed to consider mitigating factors
and simply argues, rather, that the sentencing judge reached the
wrong result. The court carefully assessed the relevant facts
and, in our view, the resulting sentence is one which the court
deemed "sufficient, but not more than necessary." "Though there
can be no question that the result is stern, it is defensible."
Stone, 575 F.3d at 96. We cannot say that this sentence is outside
the "universe of reasonable sentenc[es]," Bermúdez-Meléndez, 827
F.3d at 167, and we therefore see no abuse of discretion.
B. Supervised Release Conditions
We now turn to Benoit's appeal of Conditions #1 and #6
of supervised release. We remind the reader that Condition #1
prohibits Benoit from interacting with children, including his
own, absent probation permission and Condition #6 restricts Benoit
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from going places where he knows children will be, again, without
probation approval.
When imposing conditions of supervised release, a
sentencing court may order "any . . . condition it considers to be
appropriate" if, based on the circumstances of the offense and the
defendant's history, that condition "involves no greater
deprivation of liberty than is reasonably necessary" to achieve
the goals of sentencing, such as protecting the public. 18 U.S.C.
§ 3583(d). We review the imposition of supervised release
conditions for an abuse of that broad discretion. United States
v. Hood, 920 F.3d 87, 92 (1st Cir. 2019). "Under that standard,
we review purely legal questions de novo, factual issues for clear
error, and 'judgment calls' through a 'classically deferential'
lens." Id. (quoting Riva v. Ficco, 615 F.3d 35, 40 (1st Cir.
2010)). "[T]he 'hallmark' that separates the permissible from the
impermissible is whether, given the facts, a certain restriction
was 'clearly unnecessary.'" United States v. Santiago, 769 F.3d
1, 9 (1st Cir. 2014) (quoting United States v. Brown, 235 F.3d 2,
7 (1st Cir. 2000)).
Benoit focuses on the impact of the Conditions on his
ability to parent his son, who, at the time of his sentencing was,
as earlier noted, three years of age. According to the PSR, as a
result of his arrest, Benoit has had no contact with his son or
with his son's mother, and his son's mother was seeking full
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custody. Benoit argues that because he has only committed non-
contact offenses and there is no evidence that he has physically
harmed his son or any child or that he is likely to, there is an
insufficient relationship between his criminal conduct and the
conditions limiting his contact with his son.
In support of his argument, Benoit leans heavily on
United States v. Del Valle-Cruz, where we vacated similar
conditions and remanded for resentencing. 785 F.3d 48, 62-64 (1st
Cir. 2015). This comparison is unpersuasive. In Del Valle-Cruz,
the defendant pleaded guilty to a Sex Offender Registry and
Notification Act ("SORNA") violation for failing to register as a
sex offender, which was required because of a sex offense involving
a minor he committed 17 years earlier. Id. at 52-54. The defendant
had no relevant criminal record in the years since his underlying
conviction and, at the time of sentencing, was living with and
raising his minor children. Id. Offering no reasons whatsoever
for his decision, the judge imposed conditions similar to those
Benoit complains of now. Id. at 53-54. We noted there that
depriving a parent of their ability to raise their child is a
serious deprivation that necessitates an explanation from the
sentencing judge, especially if one is not apparent from the
record. Id. We vacated those conditions and remanded for
resentencing because the judge offered no such explanation and
there was no discernable relationship between that defendant's
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crime (failing to register) and preventing him from continuing to
raise his children (who he had been parenting without incident).
Id. at 58-62. We also noted that seventeen years had passed since
any allegations of the defendant engaging in sexual conduct
involving children, weakening any argument that the conditions
achieved any goal of supervised release. Id. at 63-64.
In this arena, "our inquiry relies on case-by-case
scrutiny of individual circumstances," United States v. Cabrera-
Rivera, 893 F.3d 14, 29 (1st Cir. 2018), and the specifics of
Benoit's case are simply unlike Del Valle-Cruz. When Benoit was
sentenced, he had, a few months earlier, pleaded guilty to
possession and distribution of graphic child pornography, which,
considering all of the relevant facts, demonstrates a more active
risk to children than a SORNA registration violation where the
defendant had no more contemporary record of relevant misconduct.
Compare Del Valle-Cruz, 785 F.3d at 52-54 with United States v.
Mercado, 777 F.3d 532, 539 (1st Cir. 2015) (holding that
restricting SORNA defendant's association with his minor children
was reasonable where recent criminal history indicated risk of re-
offending). Though Dr. Guidry (Benoit's expert) opined that
Benoit's risk of recidivism would be low with proper treatment,
the district court pointed out that at the time of sentencing,
Benoit had undergone no such treatment. Further, the district
court noted that the defendant had sexually abused his sister when
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she was four years of age. Therefore, on sentencing day, the
district court reasonably concluded that Benoit was a risk to his
young son, particularly where Benoit admitted that he viewed
pornography depicting children of many ages and his file collection
reflected both an interest in very young children and in violence
directed at children. Compare United States v. Pabon, 819 F.3d
26, 29, 33-34 (1st Cir. 2016) (affirming the imposition of
conditions restricting the defendant's ability to interact with
children, including his minor daughter, because the relationship
between the conditions and the defendant's conduct was clear where
the defendant had sexually abused a teenage girl and the district
court "found that the conditions were necessary in order to keep
the public safe, and especially to protect minors from [the
defendant]'s violent inclinations") with Cabrera-Rivera, 893 F.3d
at 33-34 (vacating conditions restricting child pornography
defendant from raising his minor children where the conditions
were unexplained by the court, the underlying criminal conduct did
not involve violence, and there was "no basis in the record for
concluding that [defendant] 'is a danger to [his] children'"
(quoting United States v. Fey, 834 F.3d 1, 5 (2016))).
Overall, we do not think that it is "clearly
unnecessary," Brown, 235 F.3d at 7, to restrict Benoit's
interactions with children, including his own son with whom he
currently has no contact, absent a probation officer's approval
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where the record includes Benoit's own admissions that he regularly
masturbated to child pornography and had assembled a collection of
hundreds of child pornography files, including images where very
young children were tortured. See Pabon, 819 F.3d at 31 (approving
of conditions restricting defendant's interactions with minors
where the "defendant's conduct . . . indicates an enhanced risk to
minors"). Further, upon release or in the years that follow,
Benoit can petition the court to amend these conditions. 18 U.S.C.
§ 3583(e)(2). In the meantime, "[t]here is no basis for believing
that the probation officer will unreasonably withhold permission."
Pabon, 819 F.3d at 33 (quoting Mercado, 777 F.3d at 539)
(alteration in original).
CONCLUSION
Accordingly, we affirm Benoit's sentence and the
conditions of supervised release.
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