          United States Court of Appeals
                      For the First Circuit


No. 16-2144

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                    LUIS D. RIVERA-HERNÁNDEZ,

                      Defendant, Appellant.


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

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                              Before

                  Thompson, Boudin, and Kayatta,
                          Circuit Judges.


     German A. Rieckehoff on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Thomas
F. Klumper, Assistant United States Attorney, Acting Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.


                           June 8, 2018
            BOUDIN, Circuit Judge. Luis Rivera-Hernández ("Rivera")

was   charged    with   transporting    child      pornography,   18   U.S.C.

§ 2252A(a)(1),    and   possession     of   such   pornography,   18   U.S.C.

§ 2252A(a)(5)(B).       Based on a Rule 11(c) agreement with the

prosecutor, Fed. R. Crim. P. 11(c)(1)(A)-(B), Rivera pled guilty

to the first count while the prosecutor abandoned the second.            The

agreement contained a total offense level of 27, but did not

contain a stipulation as to Rivera's criminal history category

("CHC").    Accordingly, the agreement contained three contemplated

sentencing ranges: 70-87 months (CHC I), 78-97 months (CHC II), or

87-108 months (CHC III).       The government agreed to recommend a

sentence at the lower end of the applicable range at sentencing,

which it did when it asked the district court to impose a 70-month

sentence.

            After the Probation Office's pre-sentence report ("PSR")

urged adjustments not contained in the agreement, the district

judge, in no way bound by the parties' agreement, United States v.

Reyes-Santiago, 804 F.3d 453, 466 (1st Cir. 2015); United States

v. Eirby, 262 F.3d 31, 38 n.3 (1st Cir. 2001), calculated the

guideline sentence to incorporate the adjustments which are not

contested here; the new guideline range was 121-151 months.              The

district court then sentenced Rivera to 121 months in prison, the

bottom of the range but higher than any sentence supported by both

parties.


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          Rivera      now   deploys    a     wide-ranging   attack   on   his

sentence, including a procedural challenge asserting that the

district court did not consider certain arguments he presented in

his sentencing memorandum, and a direct assault on the guideline

invoked by the district court, U.S.S.G. § 2G2.2, which provides

the base offense level and various sentencing enhancements in child

pornography cases.     We reject Rivera's procedural argument because

even if the district court did not explicate on the record its

consideration of all the arguments pressed in his sentencing

memorandum,   these    arguments      were   unmistakably   considered    and

rejected elsewhere in the court's reasoning.          See United States v.

Fisher, 494 F.3d 5, 12 (1st Cir. 2007).

          As for Rivera's attack on the guideline itself, Rivera's

brief argues that both he and the prosecutor to the end urged a

70-month sentence, that U.S.S.G. § 2G2.2 was developed by the

Sentencing Commission in response to congressional directives,

that most district judges regard the sentences under this guideline

as far too harsh, and that several of our sister circuits including

the Second, United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010),

and the Third, United States v. Grober, 624 F.3d 592 (3d Cir.

2010), have comprehensively critiqued this guideline.                 Rivera

further asserts that his total offense level of 32, recommended in

the PSR and ultimately adopted by the district court, is comparable




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to the base offense level for second degree murder and voluntary

manslaughter.   See U.S.S.G. §§ 2A1.2(a), 2A1.3(a).

           The government has chosen not to reply to all of these

pointed attacks, presumably believing that it does not have to do

so.   The district court did not choose to vary or depart from the

guideline range it adopted, so its authority to do so is not in

issue here.    Nor, given precedent shortly to be cited, is a naked

attack on Congress' guideline within the purview of this panel, as

it might be were an en banc court considering the matter.        And, if

the government had to defend the very severe sentences Congress

envisioned, it could attempt to paint a somewhat darker picture--

focusing on the coercion of children that lies behind some child

pornography.

           Settled   circuit   precedent    exists   and   controls   the

actions of this panel, which is not an en banc court: the First

Circuit has cited this particular guideline and, while questioning

its harshness in the ordinary case, has upheld a district court's

discretion to follow it (or not).        E.g., United States v. Stone,

575 F.3d 83, 96 (1st Cir. 2009); see also United States v. Cameron,

835 F.3d 46, 50 (1st Cir. 2016).

           The district court judgment is affirmed.




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