          United States Court of Appeals
                     For the First Circuit


No. 17-1178

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    NOEL AQUINO-FLORENCIANI,

                      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

                 Torruella, Selya, and Kayatta,
                         Circuit Judges.


     Jane Elizabeth Lee on brief for appellant.
     James I. Pearce, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, Kenneth A. Blanco,
Assistant Attorney General, Criminal Division, United States
Department of Justice, John P. Cronan, Acting Assistant Attorney
General, Criminal Division, United States Department of Justice,
Rosa E. Rodríguez-Vélez, United States Attorney, Thomas F.
Klumper, Assistant United States Attorney, Acting Chief, Appellate
Division, and Elba I. Gorbea-Padró, Assistant United States
Attorney, on brief for appellee.

                          June 25, 2018
             KAYATTA,    Circuit   Judge.      Defendant     Noel    Aquino-

Florenciani pleaded guilty to both producing and possessing child

pornography and was sentenced to 264 months' imprisonment to be

followed by ten years of supervised release.           On appeal, Aquino-

Florenciani seeks resentencing, raising three claims of error.            We

affirm.

                                      I.

             In October 2015, federal agents detected that a computer

associated    with   a   particular    IP   address   had   shared   a   file

containing child pornography.         After the agents identified the

location of the computer, they obtained a warrant to search the

premises and seize electronic equipment.          When they executed the

search, the agents interviewed the internet account owner, who

revealed that he shared his access with a family member and next-

door neighbor, Noel Aquino-Florenciani.          The agents then went to

Aquino-Florenciani's apartment, where they searched (with his

consent) various electronic devices. As the search ensued, Aquino-

Florenciani told the agents that he used a peer-to-peer file-

sharing service to download child pornography, had done so for

approximately one year, and had over fifty pornographic videos of

children on his computer.          He also stated that he had never

sexually touched or photographed a minor.

             Agents eventually found on Aquino-Florenciani's cellular

phone a video of Aquino-Florenciani performing sexual acts on a


                                   - 2 -
prepubescent minor male.          In a subsequent interview with law

enforcement, Aquino-Florenciani admitted that he made the video.

Aquino-Florenciani was charged with one count of producing child

pornography in violation of 18 U.S.C. § 2251(a) and (e) and one

count of possessing child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B) and (b)(2).        In April 2016, he pleaded guilty to

both    counts.     The   Presentence         Investigation   Report   ("PSR")

calculated a total offense level of thirty-eight, which, coupled

with Aquino-Florenciani's Criminal History Category of I, yielded

an advisory guidelines range of 235 to 293 months' imprisonment.

              Aquino-Florenciani made no objection to the accuracy of

the guidelines calculation.          Rather, he argued that because the

child   pornography    guidelines     are      not   empirically    based,    the

district court should not rely on them.              The district court found

that    the     guidelines   range       as     calculated    in    this     case

"satisfactorily     reflect[ed]    the    components     of   the   offense   by

considering its nature and circumstances."                The district court

then imposed a custodial sentence of 264 months' imprisonment, to

be followed by ten years of supervised release. As part of Aquino-

Florenciani's supervised release conditions, the district court

directed that Aquino-Florenciani "shall not possess or use . . .

any . . . device with internet accessing capability at any time or

place without prior approval from the probation officer."                     The

district court further directed that Aquino-Florenciani "shall


                                     - 3 -
permit routine inspections of his computer system or any other

computer system maintained in his possession," and that he shall

"consent to the installation of systems that will enable the

probation officer or designee to monitor [Aquino-Florenciani's

electronic devices]."   Aquino-Florenciani did not object to these

conditions.

                                II.

          Aquino-Florenciani now appeals his sentence, contending

that the supervised release condition restricting his possession

and use of internet-capable electronics was not compliant with the

mandates of 18 U.S.C. § 3583(d) and that the district court's use

of the child pornography guidelines was an abuse of discretion.

He also raises one additional issue in a sealed brief.

                                A.

          We address first Aquino-Florenciani's argument that the

supervised release condition prohibiting him from possessing or

using computers, cell phones, or other internet-capable devices

without prior approval from his probation officer amounts to an

excessive "total ban" on his internet use.    In his view, such a

ban contradicts the requirements of 18 U.S.C. § 3583(d) that

special conditions of supervised release be "reasonably related

to" the factors set forth in 18 U.S.C. § 3553(a), "involve[] no

greater deprivation of liberty than is reasonably necessary" to

comport with the purposes described in section 3553(a), and be


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"consistent with any pertinent policy statements issued by the

Sentencing Commission."          United States v. Hinkel, 837 F.3d 111,

125   (1st    Cir.   2016)    (citing       these    requirements).         Aquino-

Florenciani concedes that he did not object to the imposition of

the condition about which he now complains and that plain error

review thus applies.        See United States v. Mejía-Encarnación, 887

F.3d 41, 45 (1st Cir. 2018).          Under this standard, we reverse only

where a defendant shows that:               (1) an error occurred, (2) this

error was clear or obvious, (3) the error affected the defendant's

substantial    rights,     and   (4) the     error    impaired   the   fairness,

integrity, or public reputation of judicial proceedings.                   Id.

             We reject, first, Aquino-Florenciani's characterization

of the condition at issue as a "total ban" on his use of the

internet.      He    is   permitted    to    use    the   internet   and    possess

internet-capable electronic devices, subject to approval from his

probation officer and electronic monitoring.               Should his probation

officer behave unreasonably or the condition prove too onerous in

2035 -- the year in which he is currently scheduled for release

-- he may request modification of the condition pursuant to 18

U.S.C. § 3583(e)(2).

             Having properly characterized the condition, we also

reject Aquino-Florenciani's challenge to its substance.                    "We have

upheld broad restrictions on internet access as a condition of

supervised release 'where (1) the defendant used the internet in


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the   underlying    offense;   (2) the    defendant   had   a   history   of

improperly using the internet to engage in illegal conduct; or

(3) particular and identifiable characteristics of the defendant

suggested that such a restriction was warranted.'"              Hinkel, 837

F.3d at 126 (quoting United States v. Perazza-Mercado, 553 F.3d

65, 70 (1st Cir. 2009)).        The first two of these factors are

plainly present here; the underlying offense involved extensive

downloading of child pornography and this behavior lasted for at

least a year.   And we need not even decide whether the third factor

is met because the use of the disjunctive "or" indicates that

meeting a single factor justifies the imposition of restrictions

on internet access.    Cf. Clark Sch. for Creative Learning, Inc. v.

Phila. Indem. Ins. Co., 734 F.3d 51, 56–57 (1st Cir. 2013) (noting

that the disjunctive "or" implies that terms are to be read

separately).       The bottom line is that the nature of Aquino-

Florenciani's crimes is such that we cannot say that the imposition

of restrictions on his possession and use of internet-connected

devices as a condition of supervised release was clearly or

obviously error, so Aquino-Florenciani's claim fails plain error

review.

                                   B.

           Aquino-Florenciani also claims that his sentence was

substantively unreasonable because the district court did not

categorically reject any reliance on the sentencing guidelines for


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child pornography.      He argues that such a rejection is called for

because these particular guidelines do not rest on the type of

empirical analysis that drives most other guidelines; rather, they

emanate from a congressional fiat that, he says, invariably leads

to substantively unreasonable sentences.              See United States v.

Dorvee, 616 F.3d 174, 184–88 (2d Cir. 2010) (discussing the history

of the child pornography guidelines and their practical effects on

sentencing).    Aquino-Florenciani also contends that because the

child pornography guidelines lead to the result that all or almost

all defendants in child pornography cases qualify for guideline

ranges near or exceeding the statutory maximum, it constitutes a

per se abuse of discretion for a district court not to reject these

guidelines.    While we generally review preserved arguments as to

the    substantive   reasonableness       of   a   sentence     for    abuse   of

discretion, see United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st    Cir.   2015),     Aquino-Florenciani's         preserved        argument

advocating for a per se rule is actually a claim of legal error,

which triggers de novo review, see United States v. Andújar-Arias,

507 F.3d 734, 738 (1st Cir. 2007), abrogated on other grounds by

United States v. Rodríguez, 527 F.3d 221, 229 (1st Cir. 2008).

            Following   Kimbrough    v.     United    States,    552    U.S.   85

(2007),   we   acknowledged   that    district       courts   may,     in   their

discretion, depart or vary downward from a guidelines sentence on

the basis of a policy disagreement with the relevant guideline.


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See United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009).     We

likewise noted that this is true even if the guideline -- as here

-- is the "direct reflection of a congressional directive."     Id.

We also held that it is procedural error for a district court to

impose a sentence where it "fails to recognize its discretion to

vary from the guideline range based on a categorical policy

disagreement." Id. And we acknowledged that the child pornography

guidelines, which may indeed place all offenders near, at, or even

above the statutory maximum for the offense, may suggest sentences

in individual cases that strike us as "harsher than necessary."

Id. at 97.

             Nonetheless, our court has also rejected the argument

that a district court abuses its discretion per se when it does

not reject the child pornography guidelines.    See United States v.

Rivera-Hernández, No. 16-2144, 2018 WL 2752578, at *1–2 (1st Cir.

June 8, 2018), and we do so again today.       As we said in Stone,

"the district court's broad discretion obviously includes the

power to agree with the guidelines."    575 F.3d at 90.   Given the

breadth of the factors set forth in section 3553(a), there is no

reason to presume that a congressional directive cannot provide a

useful starting point in considering "the nature and circumstances

of the offense" and "the need for the sentence imposed . . . to

reflect the seriousness of the offense."   18 U.S.C. § 3553(a)(1),

(2)(A).      We also note that no other circuit has adopted the


                                - 8 -
approach   Aquino-Florenciani         urges,       and    indeed,    several      have

rejected it. See, e.g., United States v. Fry, 851 F.3d 1329, 1333–

34 (D.C. Cir. 2017); United States v. Henderson, 649 F.3d 955, 964

(9th Cir. 2011).        While district courts may certainly conclude

that the guidelines sentencing range in child pornography cases is

harsher than necessary in many cases, there is no requirement that

a district court must categorically reject the child pornography

guidelines     based    on    their    provenance.          And     while      certain

applications    of     the   guidelines      can   point    toward    punishing      a

possessor of child pornography more harshly than one who actually

engages in sexual abuse of children, see Dorvee, 616 F.3d at 184,

that oddity is not present here, for in addition to possessing

child pornography, Aquino-Florenciani produced it by videotaping

himself sexually abusing a minor.

                                        C.

             Finally, we dispose of the contention made in Aquino-

Florenciani's sealed brief.           Because this issue was presented to

the court in briefing sealed at Aquino-Florenciani's request, we

omit any discussion of the facts prompting his request to seal.

We have nonetheless considered the matter and find it without

merit.

             Aquino-Florenciani        acknowledges         that     the       argument

contained in the sealed portion of his brief is not one he raised

below.     Because     the   argument     relies     on    disputing       a   factual


                                      - 9 -
conclusion reached in the PSR, and because Aquino-Florenciani

acquiesced to this conclusion by failing to object, he arguably

waived the issue, in which case we could forgo review entirely.

See United States v. Rondón-García, 886 F.3d 14, 25 (1st Cir.

2018); see also United States v. Turbines-Leonardo, 468 F.3d 34,

37–38 (1st Cir. 2006) (finding waiver where a defendant "eschew[ed]

a warrantable objection to a conclusion reached in a presentence

report"); but see United States v. Nieves-Borrero, 856 F.3d 5, 7–

8 (1st Cir. 2017) (noting a dispute as to whether waiver or

forfeiture applied and declining to apply waiver because the claim

failed plain error review).

          But we need not hold the argument waived to decide this

issue in favor of the government.        Even assuming -- as both the

government and Aquino-Florenciani propose -- that plain error

review applies, Aquino-Florenciani's argument falters at the first

two steps of plain error review because he cannot show clear or

obvious error.   Mejía-Encarnación, 887 F.3d at 45.    To begin with,

his argument on appeal relies on materials not in the record, which

we generally do not consider.    See United States v. Chandler, 534

F.3d 45, 51 (1st Cir. 2008).     Moreover, even if we were to look

past this deficiency and accept the materials (which we do not

discuss because again, at Aquino-Florenciani's request, they are

filed under seal), they would not be especially useful to Aquino-

Florenciani, as it is not clear that they obviate the conclusions


                                - 10 -
of the district court to which he only now objects.    For these

reasons, we cannot say that error occurred at all, let alone that

such error was clear or obvious.      Consequently, even if his

objection had not been waived, Aquino-Florenciani could not meet

the plain error standard.

                              III.

          The judgment of the district court is affirmed.




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