           United States Court of Appeals
                      For the First Circuit

No. 15-2088

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                      NELSON SANTIAGO-COLON,

                       Defendant, Appellant.


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

         [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                              Before

                       Lynch, Circuit Judge,
                    Souter,* Associate Justice,
                    and Kayatta, Circuit Judge.


     Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Liza L. Rosado-
Rodriguez, Research and Writing Specialist, on brief for
appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.

                          March 19, 2019



     *    Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            LYNCH,   Circuit    Judge.        After    a    jury    trial,   Nelson

Santiago-Colon,      a    pastor,   was    convicted       of    three   counts   of

transporting a minor with intent to engage in criminal sexual

activity.    18 U.S.C. § 2423(a).             On appeal, he challenges his

within-guidelines        sentence   of    forty   years'        imprisonment.     He

argues that his sentence is procedurally unreasonable because it

allegedly was based on unreliable information in his presentence

report (PSR) and because the district court did not adequately

consider his argument that the relevant sex offense guidelines are

not supported by empirical evidence.              See U.S.S.G. § 2G1.3.           He

also argues that his sentence is substantively unreasonable, as it

is greater than necessary to achieve deterrence, and does not take

into account his ability to rehabilitate.              We affirm.

                                         I.

            We recount only those facts necessary to understand the

issues on appeal.        Santiago-Colon was the pastor of a Pentecostal

church in Puerto Rico.          Between 2004 and 2011, Santiago-Colon

sexually abused at least five young boys between the ages of twelve

and sixteen, including over twenty incidents with one victim.

            The instances of abuse followed a pattern.                   Santiago-

Colon met the victims and their families through the church.                      He

would obtain the parents' permission to drive the victims to his

house and have them spend the night, under the guise of innocent

activities such as his mentoring of them or their washing of the


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church van.      The visits usually started with the victims eating

meals   with    Santiago-Colon's    family,      watching    television,   and

sometimes    playing   with   Santiago-Colon's      young    son.    Usually,

Santiago-Colon then took the victims to his bedroom, where they

would sit on his bed (the only seating option) to watch television.

Afterward, Santiago-Colon would send his then-wife and child out

of the room if they were present (he and his then-wife had separate

bedrooms).     He would then sexually abuse the victims, whether they

were asleep or awake.

             The victims were forced to spend the night with Santiago-

Colon, usually sleeping in the same bed as Santiago-Colon, before

he drove the victims home the next day.             Santiago-Colon also at

times sexually abused the victims in other locations, including in

his private car.

             Santiago-Colon   was   able    to    continue    his   predations

because he instructed the victims not to tell anyone about the

sexual abuse.     The victims did not tell their families about the

abuse until years later; several of them explained that they were

afraid of Santiago-Colon, or thought no one would believe that

Santiago-Colon had abused them because he was a pastor.             Santiago-

Colon's former wife, who divorced him in June 2013, testified at

trial that when she asked him why young boys were sleeping in his

bedroom, he would respond that he was giving them "words of

advice."       Santiago-Colon's former wife said she believed him


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because he was a pastor.         Four of the victims, including one who

was not listed in the indictment, testified at trial.

              We bypass a description of the overwhelming evidence of

guilt at trial to get to the sentencing issues. The PSR calculated

a base offense level of twenty-eight for each of the three counts

of conviction under 18 U.S.C. § 2423(a).            See U.S.S.G. § 2G1.3(a).

It applied three two-level enhancements: one because each minor

was in the custody, care, or supervisory control of the defendant,

id. § 2G1.3(b)(1)(B); one because the defendant unduly influenced

a     minor    to   engage     in   prohibited       sexual    conduct,   id.

§ 2G1.3(b)(2)(B);      and    one   because   the    offense   involved   the

commission of a sex act or sexual contact, id. § 2G1.3(b)(4)(A).

              The PSR calculated that each count had an adjusted total

offense level of thirty-four, and added three additional levels

because there were multiple counts, for a combined adjusted offense

level of thirty-seven. The PSR also added a five-level enhancement

because the defendant engaged in a pattern of activity involving

prohibited sexual conduct, for a total offense level of forty-two.

Id.    § 4B1.5(b)(1).        Santiago-Colon's criminal history category

was I.   The PSR determined Santiago-Colon's guideline imprisonment

range to be 360 months to life.

              At the sentencing hearing, Santiago-Colon requested that

the court impose the statutory minimum sentence of ten years'

imprisonment. The government did not provide a specific sentencing


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recommendation, but argued that nothing less than ten years per

victim would be appropriate.

            The     district      court     agreed      with     the     guidelines

calculations in the PSR.          The court also considered the specific

characteristics of the defendant, including his use of his position

of trust and influence in the community.                 The court noted that

four victims testified at trial, and that one other victim, John

Doe 4, refused to testify because he "didn't want to go through

the same agony to testify here."                (The count in the indictment

relating to John Doe 4 had been dismissed prior to trial because

he did not want to testify).

            The court overruled Santiago-Colon's objection to the

information   in    the    PSR    about    John   Doe   4,     stating    that    the

information in the PSR "does not . . . mean that the defendant was

convicted on such count," but that "the information is still

relevant conduct as to which sufficient information was gathered,

the witness was interviewed, the information was made available in

discovery."    The court also rejected Santiago-Colon's generalized

objection    that    the   sentence       was   excessive      and   greater     than

necessary,    stating      that    Santiago-Colon        had     not     shown    any

guidelines calculation error and the sentence was appropriate.

            The court sentenced Santiago-Colon, then age fifty, to

a term of forty years' imprisonment on each count, to be served

concurrently.      The court had discretion to order that the terms of


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imprisonment run consecutively, but chose not to do so.             See 18

U.S.C. § 3584.       Santiago-Colon timely appealed his sentence.

                                      II.

            "Preserved claims of sentencing error are typically

reviewed for reasonableness, under an abuse of discretion rubric."

United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).

"The review process is bifurcated: we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether   it    is   substantively    reasonable."    United     States   v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).

A.   Procedural Reasonableness

            Santiago-Colon first argues that information in the PSR

about John Doe 4, related to the count that was dismissed before

trial,    was     unreliable,    because     there   was   "no    official

documentation in the record" about John Doe 4, who did not testify

at trial and for whom there was no written declaration or police

report.

            There are two responses, each of which disposes of the

argument.      First, the court could easily have concluded that the

information was not unreliable and was relevant conduct.                  In

drafting the PSR's statements concerning John Doe 4, the probation

officer relied on the official reports of the government's case




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agent who interviewed John Doe 4 during the criminal investigation

of Santiago-Colon.

          Second, "[t]he defendant may object to facts in the PSR,

but 'if [his] objections to the PSR are merely rhetorical and

unsupported    by   countervailing   proof,   the   district   court   is

entitled to rely on the facts in the PSR.'"           United States v.

Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (second alteration in

original) (quoting United States v. Cyr, 337 F.3d 96, 100 (1st

Cir. 2003)).    Santiago-Colon did not provide any countervailing

evidence about the challenged information.      Santiago-Colon argues

that the government only provided John Doe 4's initials, and would

not give defense counsel John Doe 4's full name.         But Santiago-

Colon never asked the district court to order the government to

release John Doe 4's name, and only argued that the information in

the PSR about John Doe 4 was unreliable.      Santiago-Colon takes the

same all-or-nothing approach on appeal.1

          Next, Santiago-Colon argues that the district court

committed a Kimbrough error when it did not "adequately consider"


     1    Santiago-Colon's reliance on United States v. Hinkley,
803 F.3d 85 (1st Cir. 2015), is misplaced.       In that case, the
district court applied a five-level enhancement for a pattern of
activity involving prohibited sexual contact between the defendant
and a minor, based on police reports and the testimony of the agent
that investigated the minor's complaint. See id. at 92. Hinkley
affirmed that "[t]he sentencing court has broad discretion to
accept relevant information without regard to its admissibility
under the rules of evidence applicable at trial, as long as it
concludes that the information has sufficient indicia of


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his policy argument about the alleged lack of empirical basis for

these particular guidelines.     See Kimbrough v. United States, 552

U.S. 85, 109 (2007).   Not so.   The district court expressly stated

that it had reviewed Santiago-Colon's memorandum about "the lack

of empirical data for the guidelines as drafted."                 The court

rejected the argument, which was within the court's discretion.

United States v. Stone, 575 F.3d 83, 90 (1st Cir. 2009) ("[T]he

district court's broad discretion obviously includes the power to

agree with the guidelines.").

          Further,   "[e]ven   though    a     guideline   is   affected    by

congressional adjustment, a sentencing court may rely on it."              Id.

at 93.   As we said in Stone, "[w]e see no reason why it would be

somehow invalid for a district court, in its broad sentencing

discretion, to conclude that its reason for rejecting a Kimbrough

variance is that it values congressional input."2           Id.

B.   Substantive Reasonableness

          Santiago-Colon   argues       that     his   sentence    was     "in

practical terms, a life sentence," and was excessive because it


reliability." Id. "Even conduct that did not lead to a conviction
may be considered." Id. at 92-93 (citing U.S.S.G. § 4B1.5 cmt.
4(B)(ii)).
     2    Santiago-Colon argues in passing that the district court
relied on Santiago-Colon's former wife's testimony that "other
boys stayed at his house, insinuating that they also were victims."
He argues that "[t]he record did not support the ominous meaning
given to that statement."     The district court stated that the
victims who testified at trial were "among the individuals or
youngsters that use[d] to stay at the house," and that Santiago-


                                 - 8 -
did not give him an opportunity to prove to the court that he is

capable of rehabilitating himself.

            The district court considered the factors outlined in 18

U.S.C. § 3553(a), including Santiago-Colon's abuse of his position

of trust and power in the community, the duration of the sexual

abuse, the long-term harm to the victims and their families, the

risk Santiago-Colon posed to society in general, the need to

promote   respect    for   the    law,      and   the    need    to   provide   just

punishment.       Moreover, despite the evidence of guilt, Santiago-

Colon throughout maintained he was innocent of the charges --

hardly an indication of intent to rehabilitate.

            "To    undermine     the       substantive    reasonableness        of   a

within-the-range      sentence,        a    defendant     must    'adduce   fairly

powerful mitigating reasons and persuade us that the district judge

was unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be "reasonable."'"                  United

States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011) (quoting

United States v. Navedo–Concepción, 450 F.3d 54, 59 (1st Cir.

2006).    Santiago-Colon has not done so here.

            Affirmed.


Colon's former wife stated that, "even as to these same
individuals," the defendant followed the pattern of "taking the
juveniles to his bedroom and at some point in time when the lights
were to be turned out she was dispatched to her bedroom along with
his son and no one else knew what happened." These statements are
supported by the record.


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