United States Court of Appeals

For the First Circuit

No. 11-2414

UNITED STATES OF AMERICA,

Appellee,

v.

MANI M. BATCHU,

a/k/a "MARK TAYLOR,"

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Kayatta, Circuit Judges.

Claudia Leis Bolgen, with whom Bolgen & Bolgen was on brief,

for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Carmen M. Ortiz, United States Attorney, was on brief, for the

appellee.

July 18, 2013
KAYATTA, Circuit Judge. Mani Batchu was a 29-year-old

doctor and specialist in adolescent psychiatry when he pursued a

sexual relationship with a 15-year-old girl. Two states charged

him with statutory rape and two courts ordered him to cease contact

with the girl. Batchu continued to pursue the relationship until

federal authorities took him into custody.

Batchu pled guilty to five federal charges and was

sentenced to 365 months' imprisonment followed by 360 months'

supervised release. He now appeals that sentence. For the reasons

set out below, we reject Batchu's arguments and affirm the district

court's lengthy sentence as defensible in this case involving a

skilled and apparently undeterrable predator who caused great harm

to the victim and her family.

I. Background

Because Batchu pled guilty to the charges against him and

now challenges only his sentence, "we glean the relevant facts from

the change-of-plea colloquy, the unchallenged portions of the

presentence investigation report (PSI Report), and the record of

the disposition hearing." United States v. Vargas, 560 F.3d 45, 47

(1st Cir. 2009).

At the time of the criminal conduct at issue, Batchu was

a 29-year-old osteopathic physician and a resident in psychiatry at

the University of Illinois in Chicago. [SA 6, 9.] His special

interest was adolescent psychiatry. [A 285.]

-2-
In August 2008, Batchu met "Minor A," a 15-year-old girl

from Massachusetts, on an internet dating website. [A 282.] 

Batchu used a fake name and a fake photograph of himself to

interact with the girl, claiming first to be 17 years old and later

to be 21 years old. [SA 10.] Minor A initially said that she was

18 years old, but later admitted to Batchu that she was only 15. 

[SA 10.]

Over the next several months, Batchu and Minor A began a

long-distance relationship, communicating via instant messages,

phone calls, text messages, and emails. [SA 10.] Batchu also

mailed gifts and cards to Minor A at her home. [SA 10.] By

January 2009, the two were routinely speaking on the telephone for

several hours each day. [SA 10.] Batchu told Minor A that he was

in love with her and that he wanted to marry her. [SA 10.] He

said that he did not care that she was only 15. [SA 10.]

On May 1, 2009, Batchu flew from Chicago to Connecticut,

rented a car, and drove to Minor A's house in Massachusetts. [SA

11.] He then brought her back to his hotel in Connecticut, where

the two had sex. [SA 11.] Batchu was fully aware at this time

that Minor A was only 15 years old. [SA 11.] Five days later,

Minor A's parents discovered what had happened and reported it to

the local police department. [SA 11.] When Minor A let Batchu

know that her parents had told the police about him, he declared

that he did not care and that nothing would come between them. [SA

-3-
11.] The two remained in contact over the internet and telephone. 

[SA 11.]

On May 23, Batchu drove from Chicago to Minor A's home

town in Massachusetts. [SA 12.] He met her at a conservation area

and there they engaged in intimate sexual contact short of

intercourse. [SA 12.] A short while later, they were interrupted

by Minor A's older brother. Batchu fled in his car. [SA 12.] 

Within 24 hours, the Eastern Hampshire County District

Court in Massachusetts issued a temporary restraining order

demanding that Batchu cut off contact with Minor A. [SA 12.] The

order was served on Batchu that same day and made permanent two

days later. [SA 12.] On June 8, the Eastern Hampshire County

District Court issued an arrest warrant for Batchu based on a

complaint alleging that he had statutorily raped Minor A on May 23. 

[SA 12-13.] He was arrested in Chicago the next day and confessed

to police that he had a sexual relationship with Minor A. [SA 13.] 

Batchu's computer was seized and a subsequent search of

the hard drive turned up: videos of Minor A that Batchu recorded

while webchatting with her in which she displays her genitals and

masturbates; videos of two other unidentified females ("Victim B"

and "Victim C") that Batchu recorded while webchatting with them;

hundreds of videos depicting young females engaged in sexually

explicit conduct; and web searches with search terms indicative of

-4-
child pornography (e.g., "preteen," "lolita," "kiddy," and

"pthc"1

). [SA 15-16.]

On June 24, Batchu appeared in Eastern Hampshire District

Court in Massachusetts on the statutory rape charges. [SA 13-14.] 

He was released on bail on the condition that he cease contact with

Minor A. [SA 14.] The following day, Batchu appeared in

Connecticut Superior Court and was charged with three counts of

sexual assault in the second degree in connection with his

statutory rape of Minor A on May 1. [SA 14.] He was again

released on bail, this time on the condition that he have no

contact with any child under the age of 18. [SA 14.]

Batchu was undeterred. He remained in contact with

Minor A, communicating with her daily over the phone and internet

for hours on end. [SA 17.] On July 22, Minor A's family went to

Florida on vacation. [SA 17.] Tipped off to the family trip by

Minor A, Batchu flew to Florida, rented a car and a hotel room, and

surreptitiously met with Minor A several times over the next few

days, repeatedly engaging in sexual intercourse with her. [SA 17-

18.] Before he returned to Chicago, Batchu told Minor A that she

could refuse to testify against him and that if anyone asked she

should deny ever having had sex with him. [SA 18, A 293.] 

1

 Batchu's PSI Report explains that "pthc" ("preteen

hardcore") is an abbreviation used by pedophiles to denote child

pornography. [SA 15.]

-5-
The two continued to communicate remotely until August 3,

when Batchu flew to Connecticut for an appearance in Superior Court

on his sexual assault charges for the May 1 encounter. [SA 18-19.] 

Instead of remaining in Connecticut, Batchu rented a car and drove

to meet Minor A in a shopping mall in Massachusetts, where the two

engaged in sexual intercourse inside a fitting room at a department

store. [SA 19.] They were walking together through the mall when

they encountered members of Minor A's family, who had called the

police. [SA 19.] Batchu was arrested for violating the

restraining order barring him from contact with Minor A. A search

of his car recovered a computer and a flash memory drive, which

contained additional sexually explicit video files of Minor A that

Batchu had surreptitiously recorded while webchatting with her,

photographs of Batchu and Minor A kissing in Florida, and hundreds

of images of child pornography. [SA 19-21.]

Batchu was subsequently indicted on eight federal counts

related to his sexual conduct with Minor A. [A 24-32.] On May 7,

2011, he pled guilty to five of them: one count of transporting a

minor in interstate commerce with the intent that she engage in

criminal sexual activity, 18 U.S.C. § 2423(a), three counts of

traveling in interstate commerce for the purpose of engaging in

illicit sexual conduct, 18 U.S.C. § 2423(b), and one count of using

a facility of interstate commerce to entice a minor to engage in

criminal sexual activity, 18 U.S.C. § 2422(b). The plea agreement

-6-
stipulated that Batchu's offense level would be increased by two

because he had willfully obstructed the administration of justice. 

[A 241.] See U.S.S.G. § 3C1.1. Batchu reserved the right to

contest any increase of his offense level based on the videos of

Victims B and C found on his computer solely on the ground that

neither Victim B nor Victim C was a minor. [A 241-42.] See

U.S.S.G. §§ 2G2.1(d)(1), 3D1.2. Batchu also agreed not to appeal

or challenge any sentence of imprisonment of 293 months or less. 

[A 246.]

At Batchu's sentencing hearing, the district court used

the United States Sentencing Guidelines to calculate a recommended

sentence. The base offense level for Batchu's crimes was 32. See

U.S.S.G. § 2G2.1(a). Six levels of enhancement were uncontested: 

two for the fact that Minor A was between the ages of 12 and 16,

see id. § 2G2.1(b)(1)(B), two because the offense involved the

commission of a sexual act, see id. § 2G2.1(b)(2)(A), and two

because Batchu used the internet to communicate with Minor A and

entice her into a sexual relationship, see id. § 2G2.1(b)(6). [A

241-42.] As stipulated in the plea agreement, the government also

sought two levels of enhancement because Batchu obstructed justice,

see id. § 3C1.1. [SA 241.] Batchu objected to the obstruction of

justice enhancement--despite the fact that he had stipulated to its

application in his plea agreement--and his objection was denied. 

[A 360-73.] Finally, and also as stipulated in the plea agreement,

-7-
the government relied on the videos of Victim B and Victim C to

seek additional enhancement for "relevant conduct" "committed . . .

during the commission of the offense of conviction." Id.

§§ 1B1.3(a)(1), 3D1.2(d). Batchu objected to this enhancement on

the grounds he reserved in the plea agreement, claiming that

neither female shown in the videos was under age 18. [A 348-350.] 

The district court found that Victim C was under 18 and enhanced

his sentence accordingly. [A 354-359.] These enhancements yielded

an adjusted offense level of 42. [SA 25-26.]

Finally, because Batchu had accepted responsibility for

his crime, the district court deducted two points from his offense

level, see id. § 3E1.1, resulting in a combined total offense level

of 40. Together with Batchu's criminal history category of I, this

figure yielded a recommended Guidelines sentence of 292 to 365

months. [A 377.]

The court then heard arguments from the parties about an

appropriate sentence for Batchu. The government attorney and

Minor A's parents spoke first. They emphasized Batchu's deliberate

and criminal exploitation of Minor A, as well as his persistent

disregard for the law despite repeated attempts by her family

members and by multiple law enforcement agencies to deter him from

pursuing the relationship. [A 377-389.] They also recounted the

trauma that Batchu had inflicted on Minor A and her entire family. 

[A 380-407.] Minor A missed a year of school. [A 390.] Her

-8-
prolonged and continuing depression still precluded her from

functioning normally over two years after her encounter with Batchu

commenced. [A 390-391.] The entire incident was seen by the

family as an important contributing factor in the suicide of

Minor A's older brother, her unsuccessful protector. [A 391.] 

Batchu spoke next. He apologized to Minor A and to her

family for his actions, and he reflected on how he had betrayed the

values instilled in him by his own parents. [A 410-416.] He

closed by comparing himself to the jailed Indian leader Mahatma

Gandhi. [A 422-23.]2 After considering the sentencing factors

enumerated in 18 U.S.C. § 3553(a), the district court imposed a

top-of-the-guidelines sentence of 365 months on each count, to run

concurrently, followed by 360 months' supervised release. [A 429.] 

This appeal followed.3

II. Analysis

A. The Two-Level Enhancement for Batchu's Conduct with Victim C.

Batchu challenges the two-level enhancement of his

offense level based on the video of Victim C. He offers three

different arguments to that end. First, he claims (as he did

before the district court) that Victim C was not under the age of

2 Batchu was born in India but moved to the United States as

a child and became a naturalized American citizen. [SA 6, 31.]

3

 Because Batchu received a sentence longer than 293 months,

the appellate waiver in his plea agreement does not apply. [A

246.] See United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007).

-9-
18. Second, he argues (for the first time) that the video of

Victim C was not sexually explicit. Finally, he asserts (also for

the first time) that his actions with respect to Victim C were not

"relevant conduct" to his crimes of conviction within the meaning

of Guideline § 1B1.3, and so the district court should not have

considered them as part of his sentence calculation. The

government had the burden of proving each of these facts by a

preponderance of the evidence. See United States v. Hoey, 508 F.3d

687, 690 (1st Cir. 2007).

At Batchu's sentencing hearing, the district court heard

argument from both sides on whether Victims B and C were under the

age of 18. If either girl was under 18, then Batchu's actions with

respect to her would be counted toward his total offense level as

though it was contained in a separate count of conviction. See

U.S.S.G. §§ 2G1.3(d)(1), 2G2.1(d)(1), 3D1.4. The underlying

calculations were quite complex, but in short, Batchu's total

offense level would have been raised by three if the court had

found that both girls were under 18, by two if just one of them was

under 18, and not at all if neither girl was under 18. [SA 26-27,

A 358-59.] Having viewed the videos in question, the district

court was unable to determine with certainty the age of Victim B,

but found that it could conclude with confidence that Victim C was

under 18. [A 354-359.] Batchu objected to that factual finding,

but raised no other objections to the court's use of the video of

-10-
Victim C. The court relied on the video of Victim C to raise

Batchu's offense level by two points. [A 358.] 

When a defendant has preserved an objection to a district

court's calculation of a recommended Guidelines sentence, we review

de novo the court's interpretation and application of the

Sentencing Guidelines and review for clear error the court's

factual findings. See United States v. Tavares, 705 F.3d 4, 24

(1st Cir. 2013). Here, the parties agree that Batchu preserved his

challenge to the court's finding that Victim C was under 18, and so

we will review that factual finding for clear error. The parties

also agree that Batchu has raised his second two objections for the

first time on appeal. While there is a question whether these

objections have been waived by the plea agreement, see United

States v. Turbides-Leonardo, 468 F.3d 34, 37-38 (1st Cir. 2006);

United States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993), the

government agrees with Batchu that we should review the objections

under the plain error test. See Turbides-Leonardo, 468 F.3d at 37-

38; Morillo, 8 F.3d at 872; Fed. R. Crim. P. 52(b).4

 Without

deciding the issue, we accept the government's agreement to

defendant's benefit.

4

 Under the plain error standard of review, the defendant must

show: "(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001) (citing United States v. Olano, 507

U.S. 725, 732 (1993)).

-11-
1. The age of Victim C.

Batchu's first argument is that the district court

clearly erred in its finding that Victim C was less than 18 years

old. The district court explained its reasoning as follows:

She's very young, very young. She could

easily be 14. She could possibly have been

16. She is definitely not 18, and I can say

that with confidence. I don't think that any

fair-minded person looking at the video that

involves victim C could conclude that that

young lady is 18 years or older . . . . There

might be a debate as to whether she's under

16, but there's no question that she's under

18. I'm also assisted, if that's the word, in

making this evaluation by the fact that . . .

there are four videos that we have of Mr.

Batchu interacting with victim C, and so I

have a much better opportunity to gauge her

level of physical maturity and her level of

frankly childish conduct during the course of

the video. She's a very young girl both

physically and in terms of how she is behaving

on the video.

[A 355-56.] As we mentioned earlier, the district court's finding

that Victim C was under 18 resulted in a two-level increase of

Batchu's offense level under Guideline § 3D1.4(a).

In seeking reversal of this factual determination by the

sentencing judge, Batchu argues that the judge could not make a

finding that Victim C, a post-pubescent female, was less than

18 years old without the assistance of expert testimony. We view

this argument as a challenge to the sufficiency of the evidence. 

Batchu relies on United States v. Katz, 178 F.3d 368 (5th Cir.

1999) (per curiam), but Katz merely held that the potential need

-12-
for expert testimony "must be determined on a case by case basis"

and that, in the circumstances of that case, expert testimony "may

well be necessary." Id. at 373; see also United States v.

Riccardi, 405 F.3d 852, 870 (10th Cir. 2005) (allowing jury to

determine without expert opinion that two males photographed while

engaged in oral sex were under the age of 18). For six reasons, we

conclude that, even though the individual shown in the videos is

post-pubescent, this is not a case that requires expert testimony.

First, the district court was not confronted with the

task of discerning age on the basis of a single or even several

static images. Rather, the court viewed videos in which Victim C

moved about a room and spoke back and forth with Batchu. Her

attire, gait, demeanor, bearing, expressions, and voice were all

subject to assessment, as too was the substance of her

conversations with Batchu. An assessment of age based on such a

multiplicity of indicators is one often made by ordinary people in

their day-to-day experience.

Second, we have reviewed the four videos ourselves. 

Although Victim C appears to be post-pubescent, based on her

physical appearance alone one would be surprised but not

incredulous to discover that she was as old as 18. More

importantly, her bearing, demeanor, behavior, speech, and

mannerisms are consistently quite immature in a way that does not

seem feigned. Nor is there any evidence at all suggesting that she

-13-
is an adult model or actress posing as a ninth grader. "No more

than 16, and very possibly 14," would be a common and fair estimate

of her age. 

Third, Batchu points to no expert testimony or study

gauging the accuracy of such assessments of age by ordinary people

based on the type of information available in this case. Rather,

and ironically, Batchu asks us to rely on our own experience,

unaided by expert advice, as justification for a new rule that such

assessments regularly made in everyday life and in courtroom

testimony have suddenly become so unreliable as to be deemed rank

speculation. Neither our own experience nor our regard for the

experience and judgment of others allows us to craft from whole

cloth such a rule.

Fourth, even in assessing the more technical subject of

whether a sexually explicit image depicts a real or computergenerated child, we have not required expert evidence on the

ultimate question. See United States v. Rodriguez-Pacheco, 475

F.3d 434, 441-44 (1st Cir. 2007). The fact that we do not require

experts for that fairly technical determination suggests that we

should similarly not require the government to provide an expert

witness for an assessment frequently and routinely made in day-today experience. See United States v. Cameron, 762 F. Supp. 2d 152,

163-64 (D. Me. 2011), aff'd in part, rev'd in part on other

grounds, 699 F.3d 621 (1st Cir. 2012).

-14-
Fifth, because the factual determination of age at issue

in this case arose at sentencing, the district court need have

found that Victim C was a minor only by a preponderance of the

evidence. See Hoey, 508 F.3d at 690. We are not confronted with

the question of whether expert testimony is required (or able) to

prove beyond a reasonable doubt the minority of an unknown, postpubescent individual appearing in a video.

Sixth, the district court took into consideration the

imprecise nature of its determination and did not seek to make

close calls. In a proceeding where the government bore the burden

of establishing that Victim C was "more likely than not" a minor,

the district court found that Victim C was definitely under 18, and

likely 16 or younger. At the same time, the district court

declined to conclude that Victim B was under 18. In short, the

district court did not attempt to draw fine distinctions that might

be deemed facially implausible or inconsistent with common

experience.

As is the case with many judgments of fact, we deal in

estimates and likelihoods, not certainty. On clear error review,

we simply uphold the district court's conclusion that Victim C,

more likely than not, was under 18 years of age. See Jackson v.

United States, 156 F.3d 230, 233 (1st Cir. 1998).

-15-
2. Sexually explicit conduct.

The plea agreement did not reserve for appeal the

argument that the video of Victim C did not include "sexually

explicit conduct." See U.S.S.G. § 2G2.1. Nor did Batchu argue to

the district court that it must determine the existence of

"sexually explicit conduct" using the factors articulated in United

States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub

nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987),

an argument he now makes on appeal. Again, we bypass any issue of

waiver and apply plain error review.

The statute defines "sexually explicit conduct" as, inter

alia, the "lascivious exhibition of the genitals or pubic area." 

18 U.S.C. § 2256(2)(A)(v). We have considered claims of error in

the application of this definition in United States v. Amirault,

173 F.3d 28 (1st Cir. 1999), and United States v. Frabizio, 459

F.3d 80 (1st Cir. 2006). Under these cases, there was no error

here, let alone plain error.

First, it is defendant who is in error in relying on the

Dost factors as dispositive. We have been clear that the Dost

factors are problematic. In Frabizio, we emphasized that the

factors are not "the equivalent of," nor do they "establish[] the

limits of[,] the statutory term 'lascivious.'" 459 F.3d at 87. We

noted that Dost has "fostered myriad disputes that have led courts

far afield from the statutory language," id. at 88, including

-16-
disputes about what specific factors mean and how many factors must

apply to qualify an image as "lascivious." Id. at 88-89. We made

a similar point in Amirault, stating that the factors "are neither

comprehensive nor necessarily applicable in every situation" and

that "[t]he inquiry [into the 'lascivious exhibition' question]

will always be case-specific." 173 F.3d at 32. Since defendant's

argument is framed almost exclusively in terms of the Dost factors,

it necessarily fails the plain error test. 

Further, the evidence supports a finding that the Victim

C videos contain sexually explicit conduct, or at least such a

conclusion cannot be said to be plainly erroneous. In the videos

reviewed by the district court, Victim C removes her shirt and

shorts and appears only in her bra and bikini-type underpants. On

one occasion, in response to Batchu's repeated requests, she bends

over a chair and presents her buttocks and thighs to the screen,

allowing the camera to focus briefly on her barely-clothed crotch

from behind. At another point, Victim C stands in front of the

camera while Batchu coaxes her to pull aside her bra so that her

breasts are visible. Batchu's tone vacillates between what might

fairly be described as feigned objectivity and lechery. 

Any error the district court made on this point would not

have been "obvious and clear" as required for Batchu to prevail

under the plain error standard of review. See United States v.

Marino, 277 F.3d 11, 32 (1st Cir. 2002) ("If there was error, it

-17-
was not plain, given the unsettled state of the law."); see also

United States v. Phaneuf, 91 F.3d 255, 263-64 (1st Cir. 1996);

United States v. Olano, 507 U.S. 725, 734 (1993). 

3. Relevant conduct.

On plain error review, we also reject Batchu's claim that

the video of Victim C should not have been considered "relevant

conduct" to his crime of conviction. 

When the district court calculated Batchu's recommended

sentence under the Guidelines, it was permitted to consider any act

or omission he committed "during the commission of the offense of

conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense." 

U.S.S.G. §§ 1B1.3(a)(1), 3D1.2(d). There was no allegation that

Batchu made the video of Victim C in order to prepare for his

liaisons with Minor A or to evade responsibility for those crimes. 

Accordingly, for the district court to enhance Batchu's sentence

based on the video of Victim C, the video must have been made

"during" his relationship with Minor A. 

At the sentencing hearing, the issue of the video's date

of production never came up because Batchu's plea agreement

stipulated that his sentence would be enhanced based on the video,

subject only to his contention that he would contest that Victim C

was under 18. [A 242.] Neither side offered evidence as to the

video's date of production. The forensic examination method used

-18-
to extract the file from Batchu's computer did not indicate its

date of creation. We can infer that the video was made before

Chicago police discovered it on Batchu's laptop on June 9, about

six weeks before he traveled to Florida to meet with Minor A, but

no other information is available to us. We therefore have a

record that is silent on a variable central to determining whether

conduct is relevant conduct properly considered in sentencing. 

We confronted a similar situation in United States v.

Turbides-Leonardo, 468 F.3d 34. In that case, the defendant's base

offense level was enhanced because he had been previously convicted

of a drug trafficking offense for which the sentence imposed

exceeded 13 months. See id. at 36-37; see also U.S.S.G. § 2L1.2. 

The defendant did not object to this finding at his sentencing

hearing, but on appeal he claimed that it was made in error because

there was no information in the record to suggest that the conduct

underlying his prior conviction--a controlled substance violation--

constituted drug trafficking. See Turbides-Leonardo, 468 F.3d at

37. We determined that the defendant waived any objection and, in

any event, that any challenge failed on plain error review because

the defendant had failed to demonstrate that "the probability of a

different result [was] sufficient to undermine confidence in the

outcome of the proceeding." Id. at 39-40 (quoting United States v.

Antonakopoulos, 399 F.3d 68, 78 (1st Cir. 2005)) (internal

quotation mark omitted). We explained:

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His argument, taken in its most attractive light,

presents us with an unknown variable: the contents of the

record of the prior conviction. He does not claim that

this record, if obtained, would show that his prior

offense was other than a drug trafficking offense; he

does not claim that the record would be either ambiguous

or inscrutable as to this point; and, finally, he nowhere

asserts that, factually, his prior offense conduct would

fall outside the . . . definition of a drug trafficking

offense. Rather, he claims only that . . . his prior

offense--about which we know next to nothing--would not

necessarily encompass all the elements needed to

constitute a drug trafficking offense . . . .

Id. at 40. Because Turbides-Leonardo failed to indicate what the

record of conviction might contain, we concluded that he could not

show a reasonable probability that the district court's error had

affected his substantial rights. Id.; see also United States v.

Davis, 676 F.3d 3, 9-10 (1st Cir. 2012).

Batchu's argument shares the same flaw. Batchu

stipulated to the enhancement of his sentence based on the Victim C

video, aside from contesting the girl's age. On appeal, he now

claims that the record did not establish that he recorded the video

during the commission his offense of conviction, but he has given

us no reason to believe that there would be any probability of a

different result if we reversed and remanded for further factfinding. Like Turbides-Leonardo, Batchu presents us with an

"unknown variable"--in this case, the date he created the Victim C

video. Turbides-Leonardo, 468 F.3d at 40. And, like TurbidesLeonardo, Batchu does not point to any evidence suggesting that

-20-
further fact-finding would show that he produced the video outside

the relevant time frame. See id.

Unlike Turbides-Leonardo, however, Batchu does argue that

the record will inevitably be "ambiguous or inscrutable" on this

point. Id. He emphasizes that the forensic examination of his

computer did not establish when he produced the Victim C video, and

he claims that no amount of further investigation could have

determined that either.

We disagree. If Batchu had raised this issue before the

district court, then the government might have been able to

identify the video's production date through methods other than

forensic analysis; for instance, by carefully following leads

suggested by the content of the video itself or by determining when

he first purchased a computer with webchatting capabilities. 

Moreover, there is nothing in the record to substantiate Batchu's

claim that it would have been impossible for further forensic

investigation to identify the date he created the video. The

record was not inevitably silent on this point--it is only silent

because Batchu failed to raise the issue to the district court.

Therefore, Batchu has placed us in precisely the same

position as we were in with regard to Turbides-Leonardo. We are

"left to guess" whether a further investigation prompted by a

timely objection would have found that he made the video before he

began his relationship with Minor A. Id. at 40. In these

-21-
circumstances, even if Batchu has not waived any argument on this

issue, he cannot meet his burden under plain error review to

establish prejudice as a result of any error committed by the

district court. "With no articulation, let alone substantiation,"

of what a further investigation into the production of the video

might reveal, "there is no way for the appellant to show a

reasonable probability that he would be better off from a

sentencing standpoint had the district court not committed the

claimed . . . error. It follows inexorably that the appellant has

not satisfied the third prong of the plain error test." Id. at 40

(citing Jones v. United States, 527 U.S. 373, 394-95 (1999)).5

B. The Two-Level Enhancement for Obstruction of Justice.

The government cited three possible grounds for a twolevel obstruction of justice enhancement at sentencing: Batchu's

continued pursuit of Minor A in defiance of court orders; his

filing of false affidavits in connection with his motion to

5 This is not to say that a record silent on a point for which

the prosecution bears the burden of proof can never result in a

finding of plain error. For example, in United States v.

Torres-Rosario, 658 F. 3d 110 (1st Cir. 2011), we found plain error

due to the fact that the record was silent on whether a prior

assault and battery for which the appellant was convicted was a

crime of violence, id. at 116-17, a finding that was necessary in

order for the conviction to stand as a necessary predicate for a

substantially enhanced sentence under the Armed Career Criminal

Act, id. at 115. In that case, unlike here, the restricted types

of evidence that the government could have offered to carry its

burden were such that the passage of time due to the defendant's

failure to object in the district court posed no potential for

prejudice to the government.

-22-
suppress; and his instruction to Minor A that she should "lie if

there was an inquiry from law enforcement that the two of them had

had sexual relations." [A 360-362.]

The third stated ground for a two-level enhancement

(counseling Minor A to cover for him) is clearly adequate by itself

to require application of the enhancement. See U.S.S.G. § 3C1.1,

comment n.4(B); United States v. Tracy, 989 F.2d 1279, 1288 (1st

Cir. 1993) (citing United States v. Dunnigan, 507 U.S. 87, 97-98

(1993)). Nor does Batchu argue otherwise. It is also clear that

the record amply supports a finding that Batchu did indeed seek to

obstruct justice by trying to get Minor A to lie for him. Batchu's

own lawyer noted that the basis for the obstruction allegation

included the statement of Minor A herself that "when it came down

to it for me to talk to the police, [Batchu] got me to lie for

[him]." [A 363.] Batchu is therefore reduced to arguing that the

district court did not adopt this ground as one of the

justifications for the two-level enhancement. The transcript,

though, is clear to the contrary. The district court expressly

stated that the enhancement should apply "for all the reasons that

[the government attorney] just stated." [A 373.] Further observed

the district court, "even if he did not explicitly say it . . .

there was a concession that [Batchu] said something that [Minor A]

didn't have to testify against him. Well, I think the message is

obvious." [A 373.]

-23-
In view of the foregoing, we need not address Batchu's

challenges to the other grounds supporting the two-level

enhancement. Even if the district court erred in relying on both

of those ground (and we do not suggest that it did), the presence

of an adequate and fully sufficient ground for the enhancement

renders any such possible error harmless. United States v.

Rodriguez, 525 F.3d 85, 108-09 (1st Cir. 2008).

C. The Reasonableness of the 365-Month Sentence.

Batchu also contends that his sentence was both

procedurally and substantively unreasonable. First, he claims that

the district court committed procedural error by failing to

evaluate and explain its chosen sentence in light of the 18 U.S.C.

§ 3553(a) sentencing factors and Batchu's arguments for a downward

departure from the recommended Guidelines sentence. Second, he

argues that his 365-month sentence is substantively unreasonable

given the nature of the crime and his personal circumstances.

We begin with Batchu's procedural objection. Were this

objection preserved, we would review for abuse of discretion. 

Because Batchu failed to object on this ground at sentencing, we

instead review only for plain error. See United States v. MedinaVillegas, 700 F.3d 580, 583 (1st Cir. 2012). 

Batchu argues that the district court failed to consider

the § 3553(a) factors and that it failed to adequately explain his

sentence in light of those factors. Neither contention has merit. 

-24-
"A sentencing court is not obliged . . . to specifically address

all of the section 3553(a) factors in its explanation, nor to give

each of the factors 'equal prominence' in its determination." 

United States v. Zapata, 589 F.3d 475, 487 (1st Cir. 2009) (quoting

United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006)). 

Because "the relative weight of each factor will vary with the

idiosyncratic circumstances of each case," we permit sentencing

courts "to adapt the calculus accordingly." Dixon, 449 F.3d at

205. All we require is that they "specifically identify some

discrete aspect of the defendant's behavior and link that aspect to

the goals of sentencing." United States v. Vazquez-Molina, 389

F.3d 54, 58 (1st Cir. 2004), vacated on other grounds, 544 U.S. 946

(2005).

In this case, the district court ably performed its

procedural duty. The court emphasized that it had "not seen a more

determined course of criminal conduct in 28 years on the bench" and

that Batchu's conduct toward Minor A "was pure exploitation of the 

ugliest sort." [A 431-32.] It rejected any "cultur[al] or other

excuse," adding that Batchu had "a long way to go to get on the

moral path that [he] claim[ed] to be on. A long way to go to self

knowledge . . . ." [A 431.] The court found the apology "phony

and narcissistic and self-justifying." [Id.] The court concluded

that a top-of-the-guidelines sentence was "fully justified by the

extreme version of this offense." [A 433.] The court also

-25-
specifically noted that it had considered the § 3553(a) factors,

and its decision to focus on certain factors over others "'entailed

a choice of emphasis, not a sin of omission' and 'is not a basis

for a founded claim of sentencing error.'" United States v.

Rodriguez, 525 F.3d 85, 110 (1st Cir. 2008) (quoting United States

v. Deppe, 509 F.3d 54, 62 (1st Cir. 2007)). As a whole, the

court's explanation adequately took into account the relevant §

3553(a) factors, and demonstrated that a lengthy sentence was

necessary for the proper reasons. The court committed no error on

this front.6

Alternatively, Batchu claims that the district court

unreasonably failed to consider his arguments for a downward

departure from the recommended Guidelines sentence, including his

record of community service, his stressful family circumstances at

the time of the crimes, the cultural pressures on him to find a

marriage partner, and the fact that he had fallen in love with

Minor A. In reality, as we describe above, the district court

considered and rejected all these arguments as either not credible

or insufficient.

6

 Batchu claims that the court should have "specifically

explained and addressed the § 3553(a)(1) factor of the 'history and

characteristics of the defendant' and § 3553(a)(2) factor of why

such a long sentence was 'just punishment.'" [Pl. Br. 35.] But as

we have just recounted, the court's explanation of its sentence did

specifically address both of these concerns.

-26-
Moving on to the substantive reasonableness of his 365-

month sentence, Batchu argues that this prison term is far in

excess of what would be necessary to punish him for his crimes. 

Batchu argues that he was guilty of only what he calls extremely

poor judgment in pursuing a relationship with Minor A, that he has

no criminal history, and that a 120-month sentence would have been

sufficient to achieve the goals of punishment set out in § 3553(a).

When assessing a challenge to the substantive

reasonableness of a sentence, "[w]e generally respect the district

court's sentence so long as the court has provided a plausible

explanation, and the overall result is defensible." United States

v. Prosperi, 686 F.3d 32, 43 (1st Cir. 2012) (alteration in

original) (quoting United States v. Innarelli, 524 F.3d 286, 292

(1st Cir. 2008)) (internal quotation marks omitted). We remember

that "[t]here is no single reasonable sentence in any particular

case but, rather, a universe of reasonable outcomes." United

States v. Walker, 665 F.3d 212, 234 (1st Cir. 2011). When the

challenged sentence falls within the recommended Guidelines range,

the defendant "must 'adduce fairly powerful mitigating reasons and

persuade us that the district judge was unreasonable in balancing

pros and cons.'" 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)).

-27-
The record here paints Batchu as a relentless and highly

dangerous child molester. He used his training in adolescent

psychology to groom Minor A for sexual exploitation. Batchu

deliberately turned Minor A against her own family, inflicting a

degree of harm that is palpable on the record of the sentencing

hearing. He went to great lengths to repeatedly sexually abuse

Minor A despite two state prosecutions and multiple court orders

demanding that he terminate his relationship with the child. The

quantity of child pornography and Batchu's video performance with

Victim C found on his computer belie any notion that his pursuit of

Minor A was an isolated instance of "poor judgment." 

Importantly, Batchu's destructive and relentless pursuit

of a minor was not deterred by repeated warnings, court orders, and

the virtual certainty of capture and imprisonment. On such a

record, the district court did not err in determining that the long

stay behind prison bars it ordered is required.

D. The 360-Month Statutory Maximum on Counts Two, Three, and

Four.

Finally, Batchu notes that he was sentenced to concurrent

terms of 365 months' imprisonment on each of the five counts of

conviction [A 20-21], and argues that this sentence exceeds the

statutory maximum on three of those counts. Batchu did not raise

this objection in the district court and so we review only for

plain error. See United States v. Hilario-Hilario, 529 F.3d 65, 76

(1st Cir. 2008).

-28-
Batchu is correct that three of the counts on which he

was convicted have a maximum punishment of only 360 months in

prison, five fewer than his sentence. See 18 U.S.C. § 2423(b). 

However, the 365-month sentence he received was within the

statutory limits on counts one and five, see 18 U.S.C. §§ 2422(b),

2423(a) (providing for a maximum punishment of life imprisonment),

and so Batchu would spend no less time in prison even if we

remanded for resentencing on counts two, three, and four. The

district court's error on this point was therefore harmless and

does not require reversal under plain error review. See United

States v. Matos, 611 F.3d 31, 36-37 (1st Cir. 2010); United States

v. Ziskind, 471 F.3d 266, 271 (1st Cir. 2006). Batchu's strained

attempts to distinguish these cases require no express rejoinder. 

III. Conclusion

For the reasons stated, we affirm Batchu's sentence.

So ordered.

- Concurring Opinion Follows -

-29-
TORRUELLA, J. (Concurring). Although I agree with the

outcome in this case, and most of its holdings, I would conclude

otherwise on the need for expert testimony regarding the age of

sexually abused victims where that finding cannot be documented by

official records or by the testimony of the victim. I concur here,

however, because the issue is before us at the sentencing stage,

where the burden of proof is only by preponderance of the evidence,

rather than beyond a reasonable doubt.

-30-