Opposition Brief — Hugo Monroy, Petitioner v. United States

No. 17-7024

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

HUGO MONROY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

ROSS B. GOLDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

asserted

the

errors

court

of

in

calculation

the

appeals

correctly

of

determined

petitioner’s

that

advisory

sentencing guidelines range were harmless, where the district

court was aware of the alternative guidelines range advocated by

petitioner, expressly stated that it would have imposed the same

sentence regardless of the correct guidelines range, and discussed

the 18 U.S.C. 3553(a) sentencing factors at length in imposing

sentence.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-7024

HUGO MONROY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1, at 1-6) is

not published in the Federal Reporter but is reprinted at 698 Fed.

Appx. 1015.

JURISDICTION

The judgment of the court of appeals was entered on June 29,

2017.

A petition for rehearing was denied on September 6, 2017

(Pet. App. A2, at 1).

The petition for a writ of certiorari was

filed on December 5, 2017.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Southern District of Florida, petitioner was convicted of

possession

of

child

pornography,

2252(a)(4)(B) and (b)(2).

in

violation

Pet. App. A3, at 1.

of

18

U.S.C.

He was sentenced

to 108 months of imprisonment, to be followed by 20 years of

supervised release.

Id. at 2-3.

The court of appeals affirmed.

Pet. App. A1, at 1-6.

1.

In 2014, law enforcement was actively investigating

child exploitation crimes on the ARES network, a peer-to-peer filesharing network that allows users to exchange digital files with

other users around the world.

Pet. App. A1, at 2-3.

Using

investigative software, law enforcement discovered that a computer

on the network with an IP address linked to petitioner’s thenresidence in Miami, Florida, was sharing child pornography.

at 3.

Id.

Investigators were able to download a partial video from

that IP address; the video contained footage of a prepubescent

minor engaged in sexually explicit conduct. Ibid.; see Presentence

Investigation Report (PSR) ¶ 9.

Months later, investigators

identified another computer on the ARES network -- this one linked

to petitioner’s new residence in Homestead, Florida -- that was

sharing child pornography.

Pet. App. A1, at 3.

Investigators

were able to download four videos from that IP address, each one

depicting

a

prepubescent

minor

conduct.

Ibid.; see PSR ¶ 12.

engaged

in

sexually

explicit

3

After further surveillance, investigators obtained a warrant

to search petitioner’s Homestead residence, where they seized two

laptops containing 75 still images of child pornography.

App. A1, at 3.

that

Pet.

At least one of those images was linked to a video

investigators

had

previously

downloaded

from

one

of

petitioner’s IP addresses. Ibid. When interviewed by investigators,

petitioner admitted that “he had first looked at child pornography

using the ARES network while he still lived in El Salvador (prior

to migrating to the United States in 2009) and had last viewed

child pornography the night before.”

2.

a.

Id. at 5.

A federal grand jury in the Southern District of

Florida indicted petitioner on one count of possession of child

pornography involving a prepubescent minor under the age of 12, in

violation of 18 U.S.C. 2252(a)(4)(B) and (b)(2).

Petitioner pleaded guilty.

b.

Indictment 1-2.

Pet. App. A3, at 1.

Applying the 2015 version of the Sentencing Guidelines,

the Probation Office assigned petitioner a total offense level of

29 and a criminal history category of I, corresponding to an

advisory guidelines range of 87 to 108 months of imprisonment.

PSR ¶¶ 23, 75.

In calculating petitioner’s total offense level,

the Probation Office treated the five videos downloaded from

petitioner’s IP addresses as relevant conduct under Sentencing

Guidelines § 1B1.3 (2015).

PSR ¶ 19.

The Probation Office

determined that petitioner’s offense involved 450 images of child

pornography -- 75 images for each video plus the 75 still images

4

found on petitioner’s laptops -- and accordingly applied a fourlevel enhancement under Sentencing Guidelines § 2G2.2(b)(7)(C)

(2015). PSR ¶¶ 19, 29; see Sentencing Guidelines § 2G2.2, comment.

(n.4(B)(ii)) (2015) (providing that “[e]ach video

* * *

shall be

considered to have 75 images”). The Probation Office also applied,

inter alia, a two-level enhancement because the offense involved

“[d]istribution”

of

child

pornography,

Sentencing

Guidelines

§ 2G2.2(b)(3)(F) (2015), and a four-level enhancement because “the

offense involved material that portrays sadistic or masochistic

conduct or other depictions of violence,” id. § 2G2.2(b)(4).

PSR

¶¶ 26-27.

Petitioner objected to the calculation of his total offense

level, arguing that the five videos should not be considered

relevant conduct under Section 1B1.3 because they were “downloaded

one year and one and one half years earlier than the date of the

seizure of the [still] images” on his laptops.

3-4 (Apr. 7, 2016).

D. Ct. Doc. 30, at

Petitioner contended that without the five

videos, no basis existed for the Probation Office’s application of

either

the

“distribution”

enhancement

masochistic” conduct enhancement.

or

Id. at 3.

the

“sadistic

or

He also contended

that the Probation Office should have applied only a two-level

enhancement under Section 2G2.2(b)(7) because his offense involved

only the 75 still images found on his laptops.

Ibid.

Petitioner

thus argued that the Probation Office should have calculated a

5

total offense level of 21 and an advisory guidelines range of 37

to 46 months of imprisonment.

c.

Id. at 5.

The district court overruled petitioner’s objections and

adopted

the

Probation

Office’s

calculation

guidelines range of 87 to 108 months.

of

an

advisory

Sent. Tr. 7-9.

The court

imposed a sentence of 108 months, “within the guideline range.”

Id. at 17; see id. at 20.

“[I]n an effort to moot” petitioner’s

objections to the calculation of his advisory guidelines range,

however, the court “state[d] for the record that the sentence would

be imposed similarly after consideration of the [18 U.S.C.] 3553

factors independent of the guidelines.”

Id. at 17; see ibid. (“I

will in the alternative impose a reasonable sentence independently

of the guidelines post [United States v. Booker, 543 U.S. 220

(2005),] after consideration of the Title 18, United States Code,

Section 3553 factors.”).

The

district

court

explained

its

18 U.S.C. 3553(a) sentencing factors.

consideration

of

Sent. Tr. 17-20.

the

Citing

the “graphic” description of the images set forth in paragraphs

8

to

13

of

the

presentence

investigation

report,

the

court

emphasized “the repugnant nature of the material that [petitioner]

was possessing and viewing.”

Id. at 18.

The court also stated

that although petitioner “is not a producer or manufacturer” of

child

pornography,

“he

is

the

target

manufacturers

and

producers,

and

[petitioner],

we

would

have

not

but

the

audience

for

for

persons

continuous

[such]

such

as

repeated

6

victimization of these young children that are displayed in these

videos.”

Ibid.

“understa[t]e[]

A lower sentence, the court explained, would

the

seriousness

of

his

offense,”

ibid.,

and

“send[] the wrong message to those who might engage in this kind

of

offense

who

are

the

end

users

of

why

this

material

is

manufactured and produced in the first instance,” id. at 20.

In

addition, the court reasoned, a lower sentence would “do[] nothing

to address the harm to the young children who are the victims of

[petitioner] and others who trade in this kind of material.” Ibid.

3.

The

court

of

nonprecedential opinion.

appeals

affirmed

in

an

unpublished,

Pet. App. A1, at 1-6.

On appeal, petitioner renewed his contention that the five

videos downloaded by investigators should not have been considered

relevant conduct.

Pet. C.A. Br. 21-29.

the

that

first

time,

inappropriate

for

an

the

He also contended, for

“distribution”

additional

reason

--

enhancement

namely,

that

was

the

government had failed to prove that he “knew” that others could

access his files on the ARES network.

Id. at 29 (boldface

omitted).

The court of appeals found it unnecessary to “address the

merits

of

these

guidelines

issues”

because

“any

error

in

calculating [petitioner’s] advisory guidelines range was harmless

and did not affect his substantial rights.”

Pet. App. A1, at 3.

The court of appeals explained that the district court had “stated

it would impose the same sentence even if it decided the guidelines

7

issue in [petitioner’s] favor.”

Id. at 4.

The court of appeals

further explained that, “assuming an error occurred and the lower

guidelines

range

applied,

the

sentence

resulting

from

consideration of the § 3553(a) factors would still be reasonable.”

Ibid.

The court noted that, “in weighing the sentencing factors,”

the district court had given “significant weight to the seriousness

of [petitioner’s] possession of child pornography and to the need

to deter [petitioner] and other potential consumers of child

pornography.”

Id. at 5.

The court of appeals also noted “the

‘repugnant nature’ of the videos the government was able to

download” and petitioner’s “undisputed history of downloading,

viewing, and sharing child pornography using the ARES network.”

Ibid.

Given those considerations, the court determined that

petitioner’s

108-month

sentence

was

not

“substantively

unreasonable, even if it constitutes an upward variance from the

37 to 46 month range [petitioner] contends should have applied.”

Ibid.

The court of appeals also rejected petitioner’s contention

that the district court did not “adequately explain the chosen

sentence.”

Pet. App. A1, at 5.

The court of appeals noted that

the district court had “stated that it had considered the § 3553(a)

factors.” Ibid. The court of appeals also noted that the district

court had “discussed several factors at length, including the

‘repugnant nature of the material’ [petitioner] shared on his

computer, his role in creating a demand for such material, which

8

led to the victimization of children, the need for the sentence to

reflect the seriousness of [his] offense, and the need to deter

both [petitioner] and other consumers of child pornography.” Ibid.

ARGUMENT

Petitioner contends (Pet. 18-21) that the court of appeals

erred in affirming his sentence without deciding whether the

calculation of the advisory guidelines range was correct.

That

contention lacks merit, and the court of appeals’ decision does

not conflict with any decision of this Court or another court of

appeals.

This Court has repeatedly denied petitions for writs of

certiorari that raised similar issues.

See Shrader v. United

States, 568 U.S. 1049 (2012) (No. 12-5614); Savillon-Matute v.

United States, 565 U.S. 964 (2011) (No. 11-5393); Effron v. United

States, 565 U.S. 835 (2011) (No. 10-10397); Rea-Herrera v. United

States, 557 U.S. 938 (2009) (No. 08-9181); Mendez-Garcia v. United

States, 556 U.S. 1131 (2009) (No. 08-7726); Bonilla v. United

States, 555 U.S. 1105 (2009) (No. 08-6668).

The same result is

warranted here.

1.

The court of appeals correctly applied the principles of

harmless-error

calculating

review

in

[petitioner’s]

determining

advisory

that

guidelines

“any

range

error

in

did

not

affect his ultimate sentence and does not require a remand for

resentencing.”

a.

Pet. App. A1, at 4.

In Gall v. United States, 552 U.S. 38 (2007), this Court

stated that under the advisory Sentencing Guidelines, an appellate

9

court reviewing a sentence, within or outside the guidelines range,

must make sure that the sentencing court made no significant

procedural error, such as by failing to calculate or incorrectly

calculating

the

guidelines

range,

treating

the

Guidelines

as

mandatory, failing to consider the sentencing factors set forth in

18 U.S.C. 3553(a), making clearly erroneous factual findings, or

failing to explain the sentence.

appeals

have

consistently

552 U.S. at 51.

recognized

that

The courts of

ordinary

appellate

principles of harmless-error review nonetheless apply, so that

errors of the sort described in Gall do not automatically require

a remand for resentencing.

As the Seventh Circuit has explained,

[a] finding of harmless error is only appropriate when the

government has proved that the district court’s sentencing

error did not affect the defendant’s substantial rights (here

-- liberty). To prove harmless error, the government must be

able to show that the Guidelines error “did not affect the

district court’s selection of the sentence imposed.” [United

States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008)]

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)

(applying harmless error pre-Gall)).

United States v. Abbas, 560 F.3d 660, 667 (2009); see Fed. R. Crim.

P. 52(a) (“Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.”).

A sentencing court may confront a dispute over the application

of the Sentencing Guidelines.

When the court resolves that issue

and imposes a sentence within the resulting advisory guidelines

range, it may also explain that, had it resolved the disputed issue

differently and arrived at a different advisory guidelines range,

10

it would nonetheless have imposed the same sentence in light of

the

factors

enumerated

in

18

U.S.C.

3553(a).

Under

proper

circumstances, that permits the reviewing court to affirm the

sentence (applying harmless-error principles) even if it disagrees

with the sentencing court’s resolution of the disputed guidelines

issue.

This Court in Molina-Martinez v. United States, 136 S. Ct.

1338 (2016), analogously recognized that when the “record” in a

case shows that “the district court thought the sentence it chose

was

appropriate

irrespective

of

the

Guidelines

range,”

the

reviewing court may determine that “a reasonable probability of

prejudice does not exist” for purposes of plain-error review,

“despite application of an erroneous Guidelines range.”

1346;

see

id.

at

1348

(indicating

that

a

“full

Id. at

remand”

for

resentencing may be unnecessary when a reviewing court is able to

determine that the sentencing court would have imposed the same

sentence “absent the error”).

b.

Applying ordinary principles of harmless-error review to

the circumstances of this case, the court of appeals correctly

determined that any error in calculating petitioner’s advisory

guidelines range was harmless.

Pet. App. A1, at 3.

The district

court expressly stated that it thought its chosen sentence was

appropriate “after consideration of the [Section] 3553 factors

independent of the guidelines.”

Sent. Tr. 17.

And to the extent

that harmless-error review entails asking whether the court was

aware of the alternative sentencing range that would have applied

11

had it not erred in calculating the guidelines range, the record

here satisfied that inquiry.

presentence

investigation

guidelines

range

was

Petitioner filed objections to the

report

“37-46

contending

months,”

D.

Ct.

that

the

Doc.

correct

30,

at

5;

petitioner reiterated that the correct guidelines range was “37 to

46 months” at the sentencing hearing, Sent. Tr. 5; and the court

noted

petitioner’s

“objections”

in

imposing

an

“alternative”

sentence, id. at 17; see id. at 20 (court stating that it had

“considered the statements of all parties”).

The record thus

demonstrates

of

that

the

court

was

well

aware

the

advisory

guidelines range that petitioner asserts to have been applicable

when it stated that it would have imposed the same sentence

regardless of the correct guidelines range.

Petitioner contends (Pet. 21) that the district court did not

“explain why an upward variance would have been warranted had [his

proposed] Guidelines range been correct.”

But as the court of

appeals noted, the district court “discussed several [Section

3553(a)] factors at length, including the ‘repugnant nature of the

material’ [petitioner] shared on his computer, his role in creating

a demand for such material, which led to the victimization of

children, the need for the sentence to reflect the seriousness of

[his] offense, and the need to deter both [petitioner] and other

consumers of child pornography.”

Tr. 17-20.

Pet. App. A1, at 5; see Sent.

Thus, to the extent that the adequacy of the district

court’s explanation of its chosen sentence is part of the harmless-

12

error inquiry, the explanation here supports the court of appeals’

harmless-error determination.

2.

The court of appeals’ decision does not conflict with

any decision of another court of appeals.

formal

differences

harmless-error

alternative

exist

review

sentencing

in

when

the

a

To the extent that some

articulated

requirements

for

district

court

has

offered

an

determination,

those

differences

in

approach do not reflect any meaningful substantive disagreement

about

when

an

alternative

calculation error harmless.

sentence

can

render

a

guidelines-

Petitioner has failed to identify any

court of appeals that would have declined to affirm the sentence

imposed in this case under harmless-error review.

Petitioner contends (Pet. 14-15) that the court of appeals’

decision conflicts with the Third Circuit’s decision in United

States v. Smalley, 517 F.3d 208 (2008).

In Smalley, the Third

Circuit declined to find a guidelines-calculation error harmless

where

the

district

court

alternative

Guidelines

suggest[ed]

that

the

“did

not

explicitly

range”

and

“nothing

in

District

Court

properly

determined

alternative Guidelines range.”

Id. at 214.

set

forth

the

an

record

the

The Third Circuit,

however, has never relied on Smalley to require resentencing where,

as here, the record demonstrates that the district court was well

aware of the alternative guidelines range, see pp. 10-11, supra;

the court expressly stated that it would have imposed the same

sentence “independent” of that range “after consideration of the

13

[18 U.S.C.] 3553 factors,” Sent. Tr. 17; and the court “discussed

several factors at length” in imposing sentence, Pet. App. A3, at

5; see Sent. Tr. 17-20.

Petitioner also asserts (Pet. 15) a conflict between the

decision below and the Eighth Circuit’s decisions in United States

v. Bah, 439 F.3d 423 (2006), and United States v. Icaza, 492 F.3d

967 (2007).

In Bah, however, “the sentencing court pronounced a

blanket identical alternative sentence to cover any potential

guidelines

calculation

error

asserted

on

appeal

without

also

basing that sentence on an alternative guidelines calculation.”

439 F.3d at 431.

In Icaza, the district court likewise “made a

blanket statement” that the sentence it had chosen was “‘fair’”

without “determin[ing] an alternative guidelines range”; it also

“explicitly

sentence”

appeal.”

if

disavowed”

its

an

“intent”

guidelines

492 F.3d at 971.

to

“pronounce

determination

“was

the

same

rejected

on

The circumstances in both Bah and Icaza

thus differ from those here, where the district court was well

aware of the alternative guidelines range and made clear that it

would impose the same sentence regardless of which range was

correct.

See Sent. Tr. 17; pp. 10-11, supra.

In any event, both

Bah and Icaza were decided before Gall, and since then the Eighth

Circuit

repeatedly

has

found

guidelines-calculation

errors

harmless in circumstances similar to those here. See United States

v. Ortiz, 636 F.3d 389, 394-395 (2011) (affirming where the

district court itself did not articulate the alternative range but

14

stated that it would impose the same sentence regardless); United

States v. Sanchez-Martinez, 633 F.3d 658, 659-660 (2011) (same;

the district court stated that it would impose the same sentence

even if it “set the Guidelines aside”); United States v. Jackson,

594 F.3d 1027, 1030 (2010) (same; the district court “provided

comments leaving no doubt that it would apply the same sentence

regardless of whether the career-offender provisions applied”).

Petitioner is likewise mistaken (Pet. 15-16) in asserting a

conflict

between

the

decision

below

and

the

Tenth

Circuit’s

decision in United States v. Peña-Hermosillo, 522 F.3d 1108 (2008).

In Peña-Hermosillo, the Tenth Circuit did not address “when, if

ever, an alternative holding based on the exercise of Booker

discretion

could

render

calculation harmless.”

a

procedurally

unreasonable

Id. at 1117-1118.

sentence

Instead, the Tenth

Circuit resolved the case on a different ground -- that the

district court’s “alternative” sentence itself did “not satisfy

the requirement of procedural reasonableness” because the court

“offer[ed] no more than a perfunctory explanation” for it.

1118.

Id. at

In this case, by contrast, the district court “stated that

it had considered the § 3553(a) factors” and “discussed several

factors at length.”

Pet. App. A1, at 5; see Sent. Tr. 17-20.

Thus, unlike in Peña-Hermosillo, the district court “adequately

explain[ed] the chosen sentence.”

exists

to

conclude

that

the

Pet. App. A1, at 5.

Tenth

Circuit

would

No basis

have

found

reversible error in the particular circumstances of this case.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

ROSS B. GOLDMAN

Attorney

MARCH 2018