Reply Brief — Hugo Monroy, Petitioner v. United States

Supreme Court briefApr 16, 2018

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NO: 17-7024

IN THE

SUPREME COURT OF THE UNITED STATES

HUGO MONROY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY BRIEF FOR PETITIONER

MICHAEL CARUSO

Federal Public Defender

Tracy Dreispul

Assistant Federal Public Defender

Counsel for Petitioner

150 West Flagler Street, Suite 1500

Miami, Florida 33130-1555

Telephone (305) 536-6900

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iv

REPLY BRIEF FOR PETITIONER ............................................................................. 1

The Eleventh and Fourth Circuits’ “assumed harmless error” approach

differs materially from ordinary harmless error review. .................................. 1

The decision below conflicts with published decisions of the Third,

Eighth, and Tenth Circuits. ................................................................................ 5

The government has failed to address the significant policy implications

of the Eleventh and Fourth Circuits’ approach. .............................................. 11

This case provides an excellent vehicle for review. ......................................... 12

CONCLUSION............................................................................................................. 13

EXHIBIT A

Excerpt of Sentencing Transcript, United States v. Hugo Monroy,

No. 15-20938-CR-KMM (S.D. Fl. Aug 1, 2016) .................................................. A

TABLE OF CITATIONS

CASES

Chambers v. United States,

129 S. Ct. 687 (2009) ................................................................................................... 9

Gall v. United States,

525 U.S. 38 (2007) ..........................................................................................2, 3, 7, 10

Molina-Martinez v. United States,

136 S. Ct. 1338 (2016) ........................................................................................... 9, 10

United States v. Bah,

439 F.3d 423 (8th Cir. 2006) ............................................................................... 6, 7, 8

United States v. Bonilla,

524 F.3d 647 (5th Cir. 2008) ....................................................................................... 2

United States v. Booker,

543 U.S. 220 (2005) ..................................................................................................... 2

United States v. Gomez-Jiminez,

750 F.3d 370 (4th Cir. 2014) ....................................................................................... 2

United States v. Icaza,

492 F.3d 967 (8th Cir. 2007) ....................................................................................... 7

United States v. Jackson,

594 F.3d 1027 (8th Cir. 2010) ................................................................................. 7, 9

United States v. Keene,

470 F.3d 1347 (11th Cir. 2006) ............................................................................... 2, 3

United States v. Leon,

570 F. App’x 258 (3d Cir. 2014) .................................................................................. 6

United States v. Monroy,

698 F. App’x 1015 (11th Cir. June 29, 2017),

reh’g denied, (11th Cir. Sept. 6, 2017) ............................................................... passim

United States v. Ortiz,

636 F.3d 389 (8th Cir. 2011) ................................................................................... 7, 8

United States v. Pena-Hermosillo,

522 F.3d 1108 (10th Cir. 2008) ............................................................................. 6, 10

United States v. Sanchez-Martinez,

633 F.3d 658 (8th Cir. 2011) ................................................................................... 7, 8

United States v. Savillon-Matute,

636 F.3d 119 (4th Cir. 2011) ................................................................................. 2, 12

United States v. Smalley,

517 F.3d 208 (3d Cir. 2008)......................................................................................... 6

United States v. Vasquez,

515 F. App’x 104 (3d Cir. 2013) .................................................................................. 6

United States v. Williams,

431 F.3d 767 (11th Cir. 2005) ..................................................................................... 2

iii

STATUTES

18 U.S.C. § 3553(a) ............................................................................................3, 4, 9, 10

18 U.S.C. § 924(e)............................................................................................................ 9

SENTENCING GUIDELINES

U.S.S.G. § 2L1.2 .......................................................................................................... 8, 9

REPLY BRIEF FOR PETITIONER

The question presented in Mr. Monroy’s petition is:

Whether (as in the Fourth and Eleventh Circuits) a miscalculation of

the Guidelines range is automatically harmless where the court baldly

states, without more, that it would impose the same sentence, or

whether (as in the Third, Eighth, and Tenth Circuits) a miscalculation

of the Guidelines is harmless only where the court calculates an

alternative range and properly justifies any variance therefrom.

In its brief in opposition, the government has attempted to reframe the issue

before the Court, in order to evade what it reluctantly concedes are “formal

differences” among the circuit courts’ application of harmless error review. (BIO I,

12). To be clear, Mr. Monroy is not merely asking this Court to review the Eleventh

Circuit’s finding of harmlessness in his case. He is asking the Court to resolve a

decade-long conflict regarding the proper standard of appellate review in Guidelines

cases. The conflict is real; it is longstanding; and it controlled the outcome of Mr.

Monroy’s appeal.

1. The Eleventh and Fourth Circuits’ “assumed harmless error”

approach differs materially from ordinary harmless error

review.

a. The government concedes that “formal differences exist in the articulated

requirements for harmless error review when a district court has offered an

alternative sentencing determination.” (BIO 12). The government is wrong to assert,

however, that those differences do not “reflect any meaningful substantive

disagreement.” (BIO 12). The differences are significant, and they compel disparate

resolution of criminal appeals.

Chief Judge Carnes was quite clear, in both his concurring opinion in United

States v. Williams, 431 F.3d 767, 773 (11th Cir. 2005) (Carnes, J., concurring) and

his opinion for the court in United States v. Keene, 470 F.3d 1347, 1349 (11th Cir.

2006), that the Court was adopting a new approach to appellate review, in order to

avoid what it deemed the “pointless reversals and unnecessary do-overs of sentence

proceedings” brought about by the remedial holding in United States v. Booker, 543

U.S. 220 (2005). (See Pet. 8-9). See also Keene, 470 F.3d at 1349 (“The ... approach

is, after all, an assumed harmlessness inquiry.”); United States v. Savillon-Matute,

636 F.3d 119, 123 (4th Cir. 2011) (expressly incorporating Keene’s “approach” into

the law of the Fourth Circuit).

Furthermore, both Judge Gregory of the Fourth Circuit, and Judge Emilio

Garza of the Fifth, have recognized that such an approach deviates significantly

from the one required by Gall v. United States, 525 U.S. 38 (2007). See United

States v. Gomez-Jiminez, 750 F.3d 370, 391-92 (4th Cir. 2014) (Gregory, J.,

concurring in part and dissenting in part) (arguing that the assumed harmless-error

inquiry approach employs an “analytical fiction” which “values form over the

substance Gall requires”; “abdicate[s] . . . responsibility to meaningfully review

sentences for procedural error,” and “has placed Gall mothballs.”); United States v.

Bonilla, 524 F.3d 647, 659 (5th Cir. 2008) (Garza, J., dissenting) (district court’s

statement that it would impose an identical sentence even if wrong about the

Guidelines “flies in the face of Gall, which states that a properly calculated

guidelines range is a prerequisite to a reasonable sentence”).

b. Contrary to the government’s assertion, the Court of Appeals did not apply

“ordinary principles of harmless error review to the circumstances of this case.” (BIO

10). Instead, the court expressly applied Keene and declined to review Mr. Monroy’s

guidelines claims based solely on the district court’s statement of intent to “moot”

appellate review. The court’s discussion of harmlessness follows:

We need not address the merits of these guidelines issues, however,

because any error in calculating Monroy’s advisory guidelines range

was harmless and did not affect his substantial rights. Under our

precedent, a guidelines calculation error is harmless if: (1) the district

court stated it would impose the same sentence even if it decided the

guidelines issue in the defendant’s favor; and (2) assuming an error

occurred and the lower guidelines range applied, the sentence resulting

from consideration of § 3553(a) factors would still be reasonable. See

United States v. Keene, 470 F.3d 1347, 1349 (2006)....

Here, the district court, in imposing the 108-month sentence, noted the

objections to the its guidelines [sic] calculations and, “in an effort to

moot” them, made an alternate ruling on the record that, independent

of the advisory guidelines, it would impose the same sentence based on

its consideration of the 18 U.S.C. § 3553(a) factors. Further, for the

reasons discussed below, the district court’s 108-month sentence is

substantively reasonable in light of the circumstances and the § 3553(a)

factors. Accordingly, any error in calculating Monroy’s advisory

guidelines range did not affect his ultimate sentence and does not

require a remand for resentencing.

See United States v. Monroy, 698 F. App’x 1015, 1018 (11th Cir. June 29, 2017), reh’g

denied, (11th Cir. Sept. 6, 2017) (emphasis added). The court of appeals made no

inquiry whatsoever as to whether the record corroborated the district court’s bald

assertion that it would have imposed the identical 108-month sentence if, in fact, the

correct guidelines range had been 37-46 months. Nor did the court ensure that such

a variance – if in fact it had been one – was accompanied by a “sufficiently

compelling” justification. See Gall, 552 U.S. at 50-51.

The government has either misread the Eleventh Circuit’s opinion, or else has

taken passages out of context to avoid this fact. For example, the government writes

that “as the court of appeals noted, the district court ‘discussed several factors at

length.’” (BIO 11) (quotation and alteration omitted). This statement, however,

related to “Mr. Monroy’s claim that the district court failed to consider the § 3553(a)

factors in fashioning its sentence or to adequately explain the chosen sentence.”

Monroy, 698 F. App’x at 1019. This discussion neither addressed the purported

harmlessness of the Guidelines errors, nor constituted a finding the district court

would have imposed an upward variance had the lower Guidelines range applied.

Nor did the district court ever state that a “lower sentence” would “[understate] the

seriousness of his offense,” ... and “send[] the wrong message to those who might

engage in this kind of offense,” as represented in the government’s brief. (BIO 6)

(emphasis added). Instead, the court spoke about the impropriety of imposing a

non-Guidelines sentence. (DE 63:20) (“I think to the extent that it suggests that a

guideline sentence is inappropriate sends the wrong message to this defendant

about the seriousness of the offense ...”; “and I think if we were to follow your

suggestion, it winds up, one, not giving him presumptively the correct guideline

sentence, but it undermines some of the goals of guidelines generally, but just

the seriousness of the offense in the first instance.”) (emphasis added). 1

The relevant pages of the sentencing transcript are attached as Exhibit A to this

Reply Brief.

Thus, if the court of appeals had applied “ordinary principles of harmlesserror review” (BIO 10), it would have noted that this was not a case where the

district court calculated the Guidelines, and then, after independent consideration of

the § 3553 factors, determined that a 108-month sentence should be imposed

regardless of the Guidelines calculations. To the contrary, the district court

expressly stated its intent to “moot” Mr. Monroy’s ability to appeal the Guidelines

calculations by imposing an alternative sentence several pages of transcript before

identifying the sentence it selected. (DE 63:17). In the interim – after stating that

it would impose an identical sentence regardless of the Guidelines range – the

district court expressed such unyielding fidelity to the Guidelines, that it suggested

Mr. Monroy’s criticisms of the calculated Guidelines range would be better addressed

to the Sentencing Commission itself, rather than the court. (See DE 63:19) (“this is

an honest debate that those who advocate before the Sentencing Commission can

take up”). A traditional review of the record would have revealed absolutely no

indication – apart from its express “effort to moot” Mr. Monroy’s challenges on

appeal – that the district court would have imposed the same, 108-months sentence,

as a variance from a lower Guidelines range.

2. The decision below conflicts with published decisions of the

Third, Eighth, and Tenth Circuits.

By accepting a district court’s bald statement that it would have imposed the

same sentence in the absence of an asserted Guidelines error, without conducting

any more searching review, the Fourth and Eleventh Circuit have created a direct

split of authority with the Third, Eighth, and Tenth Circuits, which have expressly

refused to sanction such practice. See United States v. Smalley, 517 F.3d 208, 214

(3d Cir. 2008); United States v. Bah, 439 F.3d 423, 431 (8th Cir. 2006); United States

v. Pena-Hermosillo, 522 F.3d 1108, 1109 (10th Cir. 2008). It is clear, based on the

unambiguous law of these circuits, that Mr. Monroy’s appeal would have been

decided differently in any of these jurisdictions. The government’s attempt to show

otherwise falls flat.

First, the fact that the district court was “well aware” of the lower range

advocated by Mr. Monroy does not in any way distinguish this case from United

States v. Smalley, 517 F.3d 208 (3d Cir. 2008). Compare BIO 12 with Smalley, 517

F.3d at 211 (“Smalley and the Government both argued at sentencing that Smalley .

. . should only receive a three-level enhancement . . . . The District Court accepted

the recommendation from the Probation Officer and applied the four-level

enhancement.”). Additionally, the Third Circuit has repeatedly cited Smalley for the

proposition that a court’s reasons for imposing an alternate sentence “must be a

adequately explained,” and “‘a bare statement devoid of any justification’ is not

enough.” See United States v. Leon, 570 F. App’x 258, 261 (3d Cir. 2014) (citing

Smalley, 517 F.3d at 215). 2

See also United States v. Vasquez, 515 F. App’x 104, 106-07 (3d Cir. 2013)

(distinguishing Smalley, where district court noted that sentencing range overlapped

with range advocated by defendant and expressly stated if the lower range applied,

it “would have either imposed a sentence at the high end of the sentencing range or

varied upward” to arrive at the sentence); United States v. Kuni, 514 F. App’x 203,

205 (3d Cir. 2013) (distinguishing Smalley where district court “methodically

Second, there is no meaningful difference between Mr. Monroy’s case and

United States v. Bah, 439 F.3d 423 (8th Cir. 2006), and United States v. Icaza, 492

F.3d 967 (8th Cir. 2007), where “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.”

(BIO 13).

Nor is there any indication that the Eighth Circuit’s law has changed since

Gall. Tellingly, each of the cases cited in the government’s brief to suggest that the

“Eighth Circuit [has] repeatedly found guidelines-calculations errors harmless”

involve departures or variances from the Guidelines ranges as determined by the

district court. (See BIO 13-14) (citing United States v. Ortiz, 636 F.3d 389, 394-95

(8th Cir. 2011), United States v. Sanchez-Martinez, 633 F.3d 658, 659-660 (8th Cir.

2011), and United States v. Jackson, 594 F.3d 1027, 1030 (8th Cir. 2010)). In those

cases, it was easy for the court of appeals to determine, using traditional principles

of harmless error review, that the calculation error did not affect the court’s chosen

sentence.

described the calculation of Kuni’s offense level, making clear . . . the offense level

that Kuni would have received if the authentication feature enhancement were not

applicable,” and “thoroughly articulated the reasons why it would have varied

upward to imposed the same sentence based on the relevant factors under 18 U.S.C.

§ 3553.”); United States v. Cotton, 415 F. App’x 403, 403-04 (3d Cir. 2011) (citing

Smalley for the proposition that “[I]f a district court wishes to provide for the

possibility that a different Guidelines calculation applies by handing down an

alternative sentence, it must still begin by determining the correct alternative

Guidelines range and properly justify the chosen sentence.”).

In Ortiz, the district court departed upward from the Guidelines based on the

defendant’s criminal history, and stated that it would have imposed the same

sentence as a variance. 636 F.3d at 394-95. Therefore, the court of appeals had “no

doubt the district court would have imposed the same sentence, and for the same

reasons, regardless of any procedural error it may have made in failing to discuss the

intermediate criminal history categories.” Id. Moreover, the court specifically

distinguished, and thus reaffirmed, Bah – writing: “This is not a case like United

States v. Bah, 439 F.3d 423, 431 (8th Cir.2006), ‘where 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.’” Ortiz, 636 F.3d at 395.

In Sanchez-Martinez, there was a dispute about how a prior offense should be

classified for purposes of a sentencing enhancement under U.S.S.G. § 2L1.2. 633

F.3d 658.

The

district

enhancement applied.

court

concluded,

erroneously,

that

sixteen-level

However, the court then departed downward from the

Guidelines as it calculated them, and made clear that it would have imposed the

imposed the same sentence regardless of how the specific dispute about the

classification of the offense had been resolved. See Sanchez-Martinez, 633 F.3d at

659 (“The court explained that it would treat the prior conviction as though it

required a twelve-level increase under the guidelines. The court thus declined to

give full effect to the sixteen-level increase for a crime of violence, but also stated

that an eight-level increase was insufficient, no matter how the crime was pleaded in

state court.”). On appeal, the court found that “the record is clear that the district

court intended to impose the same sentence of 36 months’ imprisonment based on 18

U.S.C. § 3553(a), whether the appropriate increase under § 2L1.2(b)(1) was eight,

twelve, or sixteen levels. Id. at 661.

And, in Jackson, the defendant objected to the finding that he qualified for a

career offender enhancement based on a prior conviction for walk-away escape. The

district court overruled his objection, but varied downward from the Guidelines and

sentenced him within the non-enhanced range. Subsequently, this Court ruled in

Chambers v. United States, 129 S. Ct. 687 (2009), that walk-away escape does not

qualify as a predicate offense for the similarly-worded Armed Career Criminal Act

enhancement. The Eighth Circuit found that the district court’s error in sentencing

Mr. Jackson as a career offender was harmless, because “[t]he court provided

comments leaving no doubt that it would apply the same sentence regardless of

whether the career-offender provision applied.” See id. at 1030. These cases make

clear that the Eighth Circuit continues to apply ordinary principles of harmless error

review, and does not invoke the Eleventh and Fourth Circuits’ assumed harmless

error approach. 3

3 The above Eighth Circuit cases are consistent with the Court’s recognition in

Molina-Martinez v. United States, 136 S. Ct. 1338, 1347 (2016) that “[t]here may be

instances when, despite application of an erroneous Guideline range, a reasonable

probability of prejudice does not exist.” That opinion recognized, however, that the

“centrality of the Guidelines to the sentencing process” must be taken into account in

the error review. See id. Molina-Martinez further establishes that error must be

assessed on a case-by-case basis, without resort to categorical rules: “The sentencing

process is particular to each defendant, of course, and a reviewing court must

Finally, the Tenth Circuit’s finding in United States v. Pena-Hermosillo, 552

F.3d 1108 (10th Cir. 2008), that a “perfunctory explanation” for an alternative

sentence “does not satisfy the requirements of procedural reasonableness” creates a

direct conflict with the law of the Eleventh Circuit, which both permits and

encourages such brevity. 552 F.3d at 1118. In Pena-Hermosillo, the Tenth Circuit

found that “surely . . . some explanation beyond a vague statement that the sentence

is appropriate under § 3553(a)” was required where the sentence imposed was five

levels, and 136 months below, the correctly-calculated guidelines range. Id. at 1117.

See also Gall, 552 U.S. at 50-51 (sentencing courts must “consider the extent” of any

deviation from the Guidelines and “ensure that the justification is sufficiently

compelling to support the degree of the variance”). In Mr. Monroy’s case, by contrast,

the Eleventh Circuit found no such justification required, despite the fact that Mr.

Monroy maintained that the correctly-calculated Guidelines range was a full eight

levels, and 62 months, below the sentence imposed. Nonetheless, the court of appeals

held that that Mr. Monroy had not met his burden of showing that the “108-month

sentence is substantively unreasonable, even if it constitutes an upward variance

from the 37-46 month range Monroy contends should have applied.” Monroy, 698 F.

App’x at 1019.

consider the facts and circumstances of the case before it.” Id. at 1346. This holding

is fundamentally at odds with the Eleventh Circuit’s approach, which places

absolutely no weight on an erroneous Guidelines calculation and accepts even the

most transparent assertion from the district court as categorical proof of

harmlessness.

Significantly, neither the government, nor the district court, nor the court of

appeals, ever suggested that an upward variance – let alone a “major” variance –

was warranted on the facts of this case. See Monroy, 658 F. App’x at 1019 (“Monroy

describes himself as a ‘low-level offender’ who does not ‘present[] a danger to any

person’ and points out that he abstained from using the ARES network for periods of

time and did not collect the child pornography he downloaded and viewed.”). The

government has failed to address the significance of the fact that the 108-month

sentence imposed in this case constitutes a “major” variance form the 37-46 month

Guidelines range advocated by Mr. Monroy.

3. The government has failed to address the significant policy

implications of the Eleventh and Fourth Circuits’ approach.

The government has not addressed the significant policy implications brought

about by eliminating appellate review of alleged Guidelines errors. Simply stated,

the Sentencing Commission cannot carry out its critical function of reviewing and

revising the Guidelines if interpretation disputes and potential errors are shielded

from appellate review. (See Pet. 20). Nor can a court of appeals adequately ascertain

the extent of a variance from the Guidelines range, if it has not first ascertained

what the properly-calculated range should be. The assumed harmless error inquiry

approach, designed for the express purpose of preserving judicial resources, thus has

negative implications both for the effectiveness of the Guidelines and the fair

administration of justice.

4. This case provides an excellent vehicle for review.

Nothing in the government’s brief refutes Mr. Monroy’s claim that his case

presents an ideal vehicle to review the conflict. Notably, the government has not

argued that this is a poor vehicle because the Guidelines calculation claims in Mr.

Monroy’s appeal would have been unsuccessful on their merits. At a minimum,

therefore, it may be deemed conceded that Mr. Monroy’s appeal raised substantial

claims regarding the proper application of the Guidelines warranting review.

Nor has the government suggested that there are any preservation problems

with the issue presented herein. To the contrary, Mr. Monroy objected to the

relevant conduct enhancement in the district court, argued that he was entitled to

the retroactive application of a clarifying amendment in the court of appeals, and

specifically challenged the district court’s effort to “moot” review by the purported

alternate sentence.

Lastly, the fact that this Court has previously denied writs of certiorari on

“similar issues,” confirms that this is an important and recurring issue of law on

which this Court’s guidance is needed. (BIO 8) (citing, e.g., Savillon-Matute v. United

States, 565 U.S. 964 (2011)). Significantly, the most recent of the petitions cited by

the government was denied in 2012. Yet, as authorities in Mr. Monroy’s petition

confirm, the practice of imposing putative “alternate” sentences continues in both

the Fourth and Eleventh Circuits. (Pet. 16-17). The continued prevalence of the

practice confirms that the question presented herein raises an important and

recurring question of federal law that is unlikely to be resolved without this Court’s

intervention.

CONCLUSION

For the foregoing reasons, as well as those stated in the petition, the Court

should grant a writ of certiorari to the United States Court of Appeals for the

Eleventh Circuit.

Respectfully submitted,

MICHAEL CARUSO

Federal Public Defender

By: s/Tracy Dreispul

Tracy Dreispul

Assistant Federal Public Defender

Counsel for Petitioner

Miami, Florida

April 16, 2018

EXHIBIT

EXHIBIT A

Excerpt of Sentencing Transcript, United States v. Hugo Monroy,

No. 15-20938-CR-KMM (S.D. Fl. Aug 1, 2016) .................................................. A

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 17 of 24

Sentencing

case.

I think a guideline sentence is certainly appropriate,

and clearly the PSI shows that the defendant was well aware of

the ARES program.

frequent user of ARES.

He was a longtime user of ARES.

He was a

The only thing that arguably makes this case any

different is that the defendant took the time to delete his

child pornography collection on a regular basis.

I certainly think a guideline sentence is appropriate

in this case, and the Government is recommending a sentence of

92 months in prison.

THE COURT:

Well, let me address the variance.

I'm not

satisfied that counsel has demonstrated a sufficient basis to

grant a variance or to warrant a variance.

motion.

So I'll deny that

Secondly, with respect to the guidelines that we've

addressed, the guideline calculations and the objections, that

in an effort to moot that issue, I'm going to sentence within

the guideline range, but I will in the alternative impose a

reasonable sentence independently of the guidelines post Booker

after consideration of the Title 18, United States Code, Section

3553 factors.

sentencing guideline calculation, I would state for the record

that the sentence would be imposed similarly after consideration

of the 3553 factors independent of the guidelines.

So if for any reason the defendant appeals the

To the issue of the sentence to be imposed, I don't

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 18 of 24

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think it would serve any purpose today to read into the record

paragraphs 8, 9, 10, 11, 12 and 13 of the Presentence

Investigation Report which describe in graphic detail the

repugnant nature of the material that the defendant was

possessing and viewing, but I do think that in the event the

sentence gets reviewed, I would certainly direct any appellate

court to those paragraphs of the Presentence Investigation

Report.

I understand that this defendant is not a producer or

manufacturer of the material in question, but for individuals in

his circumstance, he is the target audience for these

manufacturers and producers, and but for persons such as this

defendant, we would not have the continuous repeated

victimization of these young children that are displayed in

these videos.

minimize his involvement when he is the but for reason why these

materials are produced, understages the seriousness of his

offense.

So I don't think we can -- I think the efforts to

And with respect to the guideline sentence itself and

your reference to the Sentencing Commission, I've yet to see --

and I understand there is an honest difference of opinion about

the seriousness of this type of offense and this type of

defendant, but I've yet to see the commission undertake a change

in the guidelines themselves.

MR. SWARTZ:

Have they?

Well, in the Clear case, they do cite a

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 19 of 24

Sentencing

different approach that the guidelines -- I mean, that the

Sentencing Commission would recommend.

THE COURT:

Has the commission changed the guidelines?

MR. SWARTZ:

They haven't.

THE COURT:

Have not?

MR. SWARTZ:

Have not.

THE COURT:

Right, that's what I thought.

So, I mean,

there's a lot of advocacy for a change in the guidelines.

understand that and I respect your advocacy on behalf of your

client, but there are some strong concerns on the other side of

this issue, and at least to date, technology issues aside, the

Sentencing Commission has not seen fit to change the guidelines.

And my sense is that there are many who don't think those

guidelines should be changed.

I mean, this is an honest debate that those who

advocate before the Sentencing Commission can take up; nor would

I note has Congress itself changed the statutory maximum

penalties for this offense, which from what I could tell, is a

statutory maximum penalty of 20 years.

date has evinced a very serious concern for people who engage in

this kind of behavior including a sentence of up to 20 years,

and by that calculation his guideline range is 87 to 108 months.

So his guideline sentence is a fraction of the statutory

maximum.

So Congress at least to

So your suggestion is that we give him a fraction of a

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 20 of 24

Sentencing

fraction, and I think if we were to follow your suggestion, it

winds up, one, not giving him presumptively the correct

guideline sentence, but it undermines some of the goals of

guidelines generally, but just the seriousness of the offense in

the first instance.

So, as I said, I appreciate your advocacy, but I think

to the extent that it suggests that a guideline sentence is

inappropriate sends the wrong message to this defendant about

the seriousness of the offense.

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, and it does nothing, that type of sentence does

nothing to address the harm to the young children who are the

victims of this defendant and others who trade in this kind of

material.

It sends the wrong message to

The Court has considered the statements of all parties,

the Presentence Report which contains the advisory guidelines

and the statutory factors as set forth in Title 18, United

States Code, Section 3553(a).

It's the finding of the Court the defendant is not able

to pay a fine.

Restitution, however, is mandatory and will be

ordered at a later date.

It's the judgment of the Court that the defendant, Hugo

Monroy, is committed to the Bureau of Prisons to be imprisonment

for 108 months as to Count I of the Indictment.

It's further

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 21 of 24

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ordered that pursuant to Title 18, United States Code, Section

3664(d)(5), the victims' losses are not yet ascertainable.

Therefore, the Court shall set a date for the final

determination of the victims' losses not to exceed 90 days after

sentencing.

Upon release from imprisonment, the defendant shall be

placed on supervised release for a term of 20 years.

hours of release from the custody of the Bureau of Prisons, the

defendant shall report in person to the probation office in the

district in which the defendant is released.

Within 72

While on supervised release, the defendant shall not

commit any crimes, shall be prohibited from possessing a firearm

or other dangerous device, shall not possess a controlled

substance, shall cooperate in the collection of DNA, shall

comply with the standard conditions of supervised release

including the following special conditions:

immigration for removal after imprisonment, data encryption

restriction, computer modem restriction, computer possession

restriction, employer computer restriction disclosure, no

contact with minors, no contact with minors in employment, no

involvement in youth organizations, sex offender treatment,

restricted from possession of sexual materials, Adam Walsh Act,

search conditions, sex offender registration and financial

disclosure requirement, all as noted in Part G of the

presentence report.

Surrendering to

Case 1:15-cr-20938-KMM Document 63 Entered on FLSD Docket 08/01/2016 Page 22 of 24

Sentencing

It's further ordered the defendant shall pay

immediately to the United States a special assessment in the

amount of $100.

And as I noted earlier, the sentence is imposed both

pursuant to the Sentencing Guidelines as a sentence within the

guideline range, and alternatively as a reasonable sentence

independently of the guidelines post Booker after consideration

of Title 18, United States Code, Section 3553 factors.

Forfeiture of the defendant's right, title and interest

in certain property is hereby ordered consistent with the Notice

of Forfeiture.

Forfeiture within three days the proceedings.

United States shall submit a proposed Order of

Now that sentence has been imposed, does the defendant

or his counsel object to the Court's finding of fact or to the

manner in which sentence was pronounced?

MR. SWARTZ:

the sentencing, Your Honor.

THE COURT:

Only the objections that I raised during

Okay.

Mr. Monroy, do you understand you

have a right to appeal the sentence that I've imposed?

THE DEFENDANT:

Yes, Your Honor.

THE COURT:

Anything further?

MR. SWARTZ:

I would ask, Your Honor, I don't know if

it could be possible with the Bureau of Prisons, but if you

could recommend that the place of designation be as close to

Miami as possible.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.