          United States Court of Appeals
                     For the First Circuit


No. 18-1901

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    JOSE ELI MONTALVO-FEBUS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Lynch and Thompson, Circuit Judges.


     Rafael F. Castro Lang on brief for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney,   Chief,   Appellate    Division,   and   Rosa   Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.



                          July 12, 2019
             LYNCH, Circuit Judge. This is a sentencing appeal. Jose

Eli Montalvo-Febus pleaded guilty to attempted possession of child

pornography, 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), admitting he

attempted to take illicit photographs of a naked fourteen-year-

old female victim. In exchange for the guilty plea, the government

agreed to dismiss two charges of transportation of this minor with

the intent to engage in criminal sexual activity, which carried

mandatory minimum sentences of ten years' imprisonment.         Id.

§ 2423(a).    Montalvo was sentenced to an upwardly variant sentence

of eighty-four months of imprisonment, followed by ten years of

supervised release.

             For the first time on appeal, Montalvo argues that his

sentence is procedurally and substantively unreasonable.    Finding

no error, we affirm his sentence.

                                  I.

             Since Montalvo pleaded guilty, we draw the facts from

the plea agreement, the presentence investigation report (PSR),

and the sentencing hearing transcript.        See United States v.

Colón-Rosario, 921 F.3d 306, 309 (1st Cir. 2019).    Montalvo first

met the victim in Salinas, Puerto Rico, around August 2011, and

began sending her messages.    The victim told Montalvo that she was

thirteen years old, and he told her that "in love there was no

age," that he loved her, and that she should not tell her mother




                                 - 2 -
that they were talking to each other. Montalvo also began visiting

the victim at her school.

             In 2012, Montalvo twice picked the victim up from a

friend's house and drove her to a secluded and poorly lit area to

engage in sexual activity.       On approximately eight other occasions

that year, Montalvo picked the victim up from a chapel near her

home and drove her to a motel to engage in sexual activity, before

driving her home.       Montalvo also requested and attempted to take

naked photographs of the victim, but she did not permit him to do

so.

             On October 26, 2012, the victim's family obtained a

protective order against Montalvo, which, after an extension was

granted, lasted until November 30, 2015.               The family had sought

the protective order after Montalvo called the victim and sent her

text messages asking when she would be "dropping the charges."

             On June 16, 2015, Montalvo was indicted in federal

district court.       On May 10, 2018, a federal indictment was filed

in    a   separate    case   charging   Montalvo       with     two    counts   of

transportation of a minor with the intent to engage in any criminal

sexual activity, in violation of 18 U.S.C. § 2423(a), which covered

the same conduct in the 2015 indictment, but with corrected dates

for the offenses.       On May 15, 2018, the government also filed an

information    charging      Montalvo   with     one    count     of    attempted

possession    of     child   pornography    in   violation       of    18   U.S.C.


                                    - 3 -
§§ 2252A(a)(5)(B)       and    (b)(2),      in   connection        with    Montalvo's

attempt to take photographs of the naked victim.

              Montalvo pleaded guilty to the attempted possession of

child pornography charge.              In the plea agreement, the parties

agreed that Montalvo's base offense level was eighteen.                      The plea

agreement     stipulated      to   a    two-level    enhancement          because    the

offense involved the use of a computer or interactive computer

service     and     a   three-level         reduction     for       acceptance        of

responsibility, for a total offense level of seventeen.                              The

parties did not stipulate to a criminal history category.                            The

parties stipulated that Montalvo "may argue for a non-guideline

sentence of 60 months, while the Government reserves the right to

argue   for    a   non-guideline       sentence     of   up   to    108     months    of

imprisonment,       regardless         of   [Montalvo's]      criminal        history

category."

              The PSR calculated a total offense level of seventeen.

The PSR stated that Montalvo had three 2010 Puerto Rico state

convictions for: possession of a controlled substance (cocaine),

carrying and use of firearms without a license, and manufacture,

distribution, possession, and use of ammunition.                   For these three

convictions, Montalvo was sentenced to a total of forty-four

consecutive years of probation.              Montalvo committed the instant

offense while on probation for these prior convictions.                       The PSR

stated that Montalvo had a criminal history category of III, so


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the applicable guideline range was thirty to thirty-seven months'

imprisonment.       The maximum term of imprisonment for the offense is

ten years.    18 U.S.C. §§ 2252A(a)(5)(B), (b)(2).

             The victim stated, as recounted in the PSR, that her

"school grades were affected," she "would constantly cry," she

thought of "taking [her] life," and she suffered from "[a]nger,

fear, anxiety, sadness, guilt, indifference, insomnia, changes,

insecurity,       uncontrollable   crying,    concentration   difficulties,

repetitive memories of crime[,] and depression."              She also said

that her family "did not expect what happened, as [she] was the

girl with the good grades that never went out," that her mother

"had to relocate to the United States because she feared for her

life," and that the victim also moved to the continental United

States when she turned eighteen.

             In    its    description    of   the   offense   conduct,   the

government's sentencing memorandum stated that "the minor female

involved in this case was 14 years old and considered herself a

naive girl, who barely left her house and was the star of her

family   with      good   grades   and   sports,"    and   that   Montalvo's

interactions with the minor were "filled with false promises and

'love' illusions."        It also stated that during trial preparations,

when asked about "love machine" furniture in certain motel room

pictures, the victim stated that Montalvo told her "it was for

sexual positions and that they would not use it on that occasion


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because she was . . . 'hurt,' referring to the fact that she was

bleeding after losing her virginity to the 27-year-old defendant."

            At the sentencing hearing, defense counsel requested a

sixty-month sentence and the government requested a 108-month

sentence.    The victim read a prepared victim impact statement.

The victim stated that because of Montalvo, her "world fell apart,"

and that at the time, she "didn't understand what [she] had done."

She also stated that Montalvo "disgraced [her] before many, many

people" and made it seem like she "was the easy girl that would

sleep around with anyone."           She stated that she "had to take

insult[s] from [her] school peers," and "when [she] saw how they

were speaking bad about [her] in school, that's when [she] tried

to take [her] life the most."

            Defense counsel argued that "within [the victim's] own

expressions what made her feel the worst were insults from her

peers," but did not challenge any of the victim's testimony or the

government's sentencing memorandum.          Defense counsel conceded that

the interactions between Montalvo and the victim were "filled with

false promises and love illusions."

            The   district   court    agreed   with   the   PSR's   guideline

calculations.     As to the 18 U.S.C. § 3553(a) factors, the district

court stated that Montalvo was thirty-three years old, was a

resident of Salinas, had five dependents, had completed the twelfth

grade, was employed as a diesel mechanic, was in good physical and


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mental health, and had a history of substance abuse.                  The district

court also stated that Montalvo had three convictions, that the

"instant   offense      occurred   while     he   was    on    state     probation

supervision," and that Montalvo "violated the law with a 14-year-

old adolescent female."       The district court stated that "[w]ith

this background, the Court deems that a non-guideline sentence, as

stipulated in the plea agreement, is a sentence that is just and

not   greater    than    necessary    to     promote     the        objectives   of

sentencing."     The district court sentenced Montalvo to a term of

imprisonment    of   eighty-four      months,     which       the     court   found

"reasonably necessary to fulfill all of the sentencing objectives,

including just punishment, deterrence, rehabilitation and positive

reintegration to the community."             The district court ordered a

term of ten years of supervised release to follow imprisonment.

The defendant did not object to the procedural or substantive

reasonableness of his sentence.              The government then moved to

dismiss the other charged counts, and the court granted the motion.

Montalvo timely appealed.

                                      II.

           "In sentencing appeals, appellate review is bifurcated."

United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

"[W]e first determine whether the sentence imposed is procedurally

reasonable     and   then   determine       whether     it    is     substantively

reasonable."     Id. (quoting United States v. Clogston, 662 F.3d


                                     - 7 -
588, 590 (1st Cir. 2011)).

A.   Procedural Reasonableness

           The     government       correctly     concedes        that      the

waiver-of-appeal provision in the plea agreement does not apply in

this case.1

           We      review     unpreserved       claims     of     procedural

unreasonableness     for    plain   error.   United      States   v.   Arroyo-

Maldonado, 791 F.3d 193, 197 (1st Cir. 2015).

           Montalvo argues for the first time on appeal that the

district   court   committed    procedural   error    by   relying     on   the

government's sentencing memorandum, which he claims "made highly

prejudicial, unreliable, false factual representations to the

Court claiming that [the victim] was a 'naive' young girl whom

[Montalvo] had 'hurt['] by 'making her bleed when he deprived her

of her virginity.'"    Montalvo claims that the court was influenced

by the government's so-called misrepresentations because the court




     1    Montalvo's appellate brief states that he does not bring
an independent claim of prosecutorial misconduct. Moreover, his
argument that the prosecutor engaged in misconduct by attempting
to "amend" the plea agreement's waiver-of-appeal provision is
belied by the sentencing hearing transcript. At the hearing, both
parties sought to "clarify" the scope of the appellate waiver.
The government stated that the parties' intent was that if Montalvo
"was sentenced within the recommendation, he would be waiving,"
but defense counsel responded, "we always understood that if he
was sentenced to more than 60 months, then he could still appeal."
The district court stated, "[t]o the extent [Montalvo] believes
he's free to . . . appeal, he should feel free to do so." There
is no evidence of misconduct.

                                    - 8 -
stated   at    the    sentencing    hearing,       "I   have   the   Government's

Sentencing Memorandum in front of me," and the government referred

to its sentencing memorandum several times during the sentencing

hearing.

              There was no error here, plain or otherwise.                     The

government's         sentencing         memorandum      did    not     make    any

misrepresentations.       It simply described the victim's version of

the facts.     It stated that the victim "considered herself a naive

girl," not that she was in fact naive, and that she had reported

that Montalvo hurt her by taking her virginity.                (Emphasis added.)

This is consistent with the victim's statements at the sentencing

hearing and in the PSR, described earlier.

              Montalvo argues that the government's statements are

contradicted by interviews with the victim's junior high school

boyfriend, the victim's sister, and a Puerto Rico Police Department

officer, which Montalvo says show that the victim was "anything

but   'naive.'"         Nothing     in     those     reports   contradicts     the

government's representations that the victim considered herself

naive and that she stated she had been "hurt" when Montalvo took

her virginity.        There was no misrepresentation.                Further, the

defendant chose not to challenge the version of events in the

government's sentencing memorandum.                "For sentencing purposes, a

prosecutor's     statement,       not    adequately     challenged    by   defense

counsel who has a full opportunity to respond, may constitute


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reliable information" for the district court to consider.             United

States v. Díaz-Arroyo, 797 F.3d 125, 130 n.3 (1st Cir. 2015).

            Montalvo also argues that the district court committed

procedural error because the victim's "chief complaint" was in

fact the "bad reputation she had at school," and that this was not

Montalvo's fault, but rather, the result of the victim's "behavior

with her boyfriend at the school and comments she had made to her

friends."      This challenge also fails.         To the extent the district

court did credit the victim's statements, it was acting well within

its discretion to do so.        See United States v. Cintrón-Echautegui,

604 F.3d 1, 6 (1st Cir. 2010) ("[A] sentencing court has wide

discretion to decide whether particular evidence is sufficiently

reliable to be used at sentencing.").

B.     Substantive Reasonableness

            Montalvo's     only       argument        as   to     substantive

unreasonableness is that his sentence was "marred" by procedural

error, a premise we have rejected.         Beyond that, the facts of this

case   fully    justify   the    sentence,    which    "resides   within   the

expansive universe of reasonable sentences."               United States v.

Pedroza-Orengo, 817 F.3d 829, 837 (1st Cir. 2016) (quoting United

States v. King, 741 F.3d 305, 308 (1st Cir. 2014)).

                                 *     *      *

            Affirmed.




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