          United States Court of Appeals
                      For the First Circuit

No. 11-1092

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         RONALD GOERGEN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

   [Hon. Joseph A. DiClerico, Jr. Senior U.S. District Judge]


                               Before
                      Boudin, Circuit Judge,
                    Souter,* Associate Justice,
                   and Thompson, Circuit Judge.


     Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.



                           June 1, 2012




     *
      The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            BOUDIN, Circuit Judge. In September 2010, Ronald Goergen

pled guilty to four counts of sexual exploitation of children, 18

U.S.C. § 2251(a).    The charges were that over a period of several

years, Goergen arranged for and took still pictures and videos of

three minor girls engaged in explicit sexual activities or poses

and then distributed the material.     Georgen received a sentence of

60 years in prison, and he now appeals to challenge only his

sentence.    The relevant background follows.

            The government charged Goergen in an information with

four counts, three covering two videos and one image, each one

depicting a different one of the three minors in a sexually

explicit pose or activity; the fourth count was based on a still

image that, in the same manner, depicted two of the minor victims

together.    At the plea hearing, the government stated that images

of the girls have featured in over a thousand investigations of

child pornography worldwide.     In September 2010, Goergen waived

indictment and pled guilty to all counts without a plea agreement.

            The pre-sentence report, prepared in November 2010,

described yet another video depicting one of the children engaged

in oral sex with the defendant at his behest.        The report also

described numerous other images and a handful of videos depicting

Goergen's extensive, continued sexual abuse of the three minor

victims.     The report, using the 2008 edition of the federal

sentencing guidelines (see note 1, below) computed the total


                                 -2-
offense level, after applying required adjustments, as 51.            At

level 43 or above, the recommended guideline sentence is life in

prison regardless of criminal history.         U.S.S.G. ch. 5, pt. A,

sentencing table (2008).

           Goergen's very high offense level reflected the facts

that multiple children were abused over a significant period; that

two of the victims were under twelve years old; that one video

involved   sadistic    or   masochistic   conduct;   and   that   Goergen

distributed the images. The recommended guideline sentence of life

imprisonment exceeded the statutory maximum of 90 years, 18 U.S.C.

2251(e), making 90 years Goergen's maximum possible sentence,

U.S.S.G. § 5G1.1(a).

           At the sentencing hearing on January 13, 2011, Goergen's

counsel urged a sentence of 15 years; the government, 60 years.

The district court, explaining its reasons in detail, sentenced

Goergen to 60 years.    As Goergen was then age 47, he is likely to

spend the rest of his life in prison.      He now appeals, urging two

points: a claim under the Ex Post Facto Clause, U.S. Const., art.

I, § 9, cl. 3, that an earlier, more lenient guideline edition

should have been used, and a set of claims that the sentence is

unreasonable in premises and result.

           The Ex Post Facto issue presents an issue of law reviewed

de novo.   United States v. Neto, 659 F.3d 194, 200 (1st Cir. 2011),

cert. denied, 132 S.Ct. 1611 (2012).       Goergen's predicate is that


                                   -3-
the offense levels for Counts 2, 3 and 4, which contributed to the

final offense level, were computed under the 2008 guidelines which

were in turn made more severe by the Protect Act of 2003 ("the

Act"), Pub. L. No. 108-21 § 401, 117 Stat. 650, 667-76.              The

related guideline changes became effective on November 1, 2004.

U.S.S.G. app. C, amend. 664 (2006).

           Goergen then argues that his conduct under those three

counts occurred prior to the Act's effective date of April 30,

2003; that the post-Act changes raised the base offense level for

his crimes from 27 to 32; U.S.S.G. app. C, amend. 664, at 39

(2006); and that they added new enhancements, including a four-

level enhancement applied to Count 2 (for material portraying

sadistic or masochistic conduct).       Id.   If the pre-Act guidelines

were employed, he says his adjusted offense level would have been

only 45.

           Under   the   instructions    provided   in   the   guidelines

themselves, the court must ordinarily use the guideline manual in

effect at the time of sentencing, U.S.S.G. § 1B1.11(a), unless this

would violate the Ex Post Facto Clause, in which event the manual

in force "on the date that the offense was committed" is ordinarily

used, U.S.S.G. § 1B1.11(b); only one edition of the manual is to be

used for all of the crimes, id. § 1B1.11(b)(2) (the "one book"

rule); and where the defendant is convicted of multiple offenses,




                                  -4-
some before but one or more after a guidelines revision, the latter

manual governs all of the offenses. Id. § 1B1.11(b)(3).

          Here, Goergen concedes that his Count 1 offense took

place in 2004 after the post-Act guidelines change.     If the one

book rule and multiple offense instructions prevail, the use of the

post-Act guidelines was permissible for all counts.   Why the court

used the 2008 guidelines rather than some other post-Act edition is

unclear but Goergen makes no issue as to that; possibly the 2008

edition was the one closest to sentencing that raised no Ex Post

Facto issue.1

          In all events, Goergen's brief--although opaque on this

issue--may be arguing that the guidelines instructions themselves

(particularly the one book and multiple offense rules) violate the

Ex Post Facto Clause insofar as they authorized use of level 51.

But even assuming such an argument for using level 45 could be

considered by the panel in the teeth of contrary circuit precedent,

e.g., United States v. Silva, 554 F.3d 13, 22 (1st Cir. 2009), any

such mistake would be harmless error.   United States v. Gerhard,

615 F.3d 7, 34 (1st Cir. 2010).




     1
      Possibly the 2008 edition was used instead of the 2010
edition because two new statutes--the Effective Child Pornography
Prosecution Act of 2007, Pub. L. No. 110-358, 122 Stat. 4001; and
the PROTECT Our Children Act of 2008, Pub. L. No. 110-401, 122
Stat. 4229--prompted further changes to the guidelines in 2009.
See U.S.S.G. app. C, amends. 733, 736-37 (2011).

                                  -5-
             As Goergen concedes, the difference between a total

offense level of 45 and 51 is immaterial to the recommendation made

by the guidelines: it is a life sentence in either instance.       In

fact, because the guidelines sentencing table only goes up to

offense level 43, the application notes go on to say (emphasis

supplied):

             In rare cases, a total offense level of . . .
             more than 43 may result from application of
             the guidelines. . . .    An offense level of
             more than 43 is to be treated as an offense
             level of 43.

U.S.S.G. ch. 5, pt. A, cmt. n.2 (2002).       The government-endorsed

offense level of 51 and Goergen's preferred offense level of 45 are

both treated as an offense level of 43.

             A colloquy between the judge and the probation officer at

sentencing confirms that the judge focused on the life sentence

recommendation and not the raw guideline number underpinning it.

The probation officer noted that

             when you have a Level 51, the highest level
             you can have in the book is a 43, so that's
             what we use. It directs you to use that. But
             it is a Total Offense Level of 51.

The court then responded (emphasis supplied)

             All right.     51.   43.    Criminal History
             Category is I . . . [s]o the guideline
             provisions yield a sentence of life.      The
             statutory maximum for these offenses would be
             90 years.

             This is not a case of a computational error leading to an

incorrect sentencing range, see United States v. Rodriguez, 630

                                  -6-
F.3d 39, 43 (1st Cir. 2010), nor is there any hint that the judge

was influenced by the proposed level of 51 rather than 45.                    Most

important,       the   district     judge's        own    detailed     substantive

explanation for choosing 60 years as the sentence (discussed below)

relies on factors independent of the offense level.

             Goergen next contends that his sentence was unreasonable

because    the    district    court    improperly        assessed    his   risk   of

recidivism.      Among the reasons given by the district court when it

imposed the 60-year sentence was the finding that

             the defendant is very much at risk for
             recidivism, and the likely potential victims
             of such recidivism would be underage females.

Goergen claims that this finding was improper because the only

record    evidence     on   this   issue    was    an    expert's    psycho-sexual

evaluation concluding that he fell in a "moderate risk category to

reoffend."

             Ordinarily,      review       of     factual    determinations       at

sentencing is for clear error.          United States v. Rivera Calderón,

578 F.3d 78, 99-100 (1st Cir. 2009), cert. denied, 130 S.Ct. 1107

(2010).      Where, as here, the defendant did not preserve any

objection to the determination, our review is for plain error,

United States v. González-Castillo, 562 F.3d 80, 82 (1st Cir.

2009), a more demanding standard. However, our conclusion would be

the same in this case under the clear error test.




                                       -7-
             The expert evaluation identified factors suggesting a low

risk of reoffense and other factors suggesting a high risk of

reoffense.      While   the   expert's   conclusion   was   that   Goergen

presented a "moderate" risk, the district judge was entitled to

make his judgment based on the report and the evidence before him

as to Goergen's conduct.      The report itself pointed to factors at

both ends of the spectrum.     The judge had authority to make his own

evaluation that we may overturn only if persuaded that he was

clearly wrong.

             The risk of recidivism was just one of many reasons given

by the district court for imposing the 60-year sentence.           It is

highly unlikely that eliminating the "very much" from "very much at

risk for recidivism"--essentially, what Goergen asks us to do--

would have changed the sentence imposed. However, given the length

of the sentence, we do not rely on lack of prejudice but rather on

the lack of any clear error in the district judge's evaluation of

the risk.

             Finally, Goergen contends that the district court did not

properly assess "the totality of the circumstances" relating to his

crimes when imposing the 60-year sentence, and that the sentence is

substantively unreasonable.       Our review here is for an abuse of

discretion, taking into account the district court's explanation of

the sentence, the parties' arguments, and the contents of the pre-




                                   -8-
sentence investigation report.       United States v. Leahy, 668 F.3d

18, 24 (1st Cir. 2012).

             Goergen points to factors that he argues should have

resulted in a lesser sentence, including his military service;

psychological evaluation; life history (including abuse); mental

and physical disabilities; remorse; and statements of the victims.

The district court acknowledged all of these mitigating factors at

sentencing, so it cannot be claimed the district court failed to

consider them.     See United States v. Beatty, 538 F.3d 8, 17 (1st

Cir. 2008), cert. denied, 129 S.Ct. 1364 (2009).

             For example, the district court acknowledged Goergen's

"difficult     upbringing   which    included     abuse,   neglect,   and

isolation"; that "[h]e has been a career United States Navy

enlisted man"; that he has been "deemed . . . to be both physically

and mentally disabled"; that he "has expressed his remorse for

these actions"; and the court also noted its consideration of "the

input which it received from the victims and others."

             Against these mitigating factors, the district court had

to weigh aggravating factors, many of which have been identified

above and of which more extensive description in this decision

would serve no one's interest.            The district court provided a

detailed, thoughtful explanation of its sentence and chose to weigh

the aggravating factors heavily.      No one who reads the explanation

would call it hasty, unbalanced or lacking in force.


                                    -9-
          Goergen also argues that other courts have been more

lenient in child abuse cases.    To the extent that it is relevant,

we have identified a number of other cases in which similarly

severe sentences were imposed:

          - United States v. Sarras, 575 F.3d 1191,
          1219-21 (11th Cir. 2009) (upholding 100-year
          sentence for sexual abuse of one victim);

          - United States v. Betcher, 534 F.3d 820, 826-
          27 (8th Cir. 2008), cert. denied, 555 U.S.
          1123 (2009) (upholding 750-year sentence for
          sexual abuse of five victims);

          - United States v. Wilcox, 666 F.3d 1154,
          1156-58 (8th Cir. 2012) (upholding 40-year
          sentence for sexual abuse of one victim)

          In the end, the 60-year sentence is under the statutory

maximum and--fairly viewed as effectively a life sentence--is what

the guidelines recommended.   This is a very grave sentence but, so

too were the crimes and their consequences for the victims. Absent

a mistaken legal or factual premise, a faulty analysis or an

unreasonable result, the district judge's judgment must prevail.

          Affirmed.




                                 -10-
