United States Court of Appeals

For the First Circuit

No. 12-2293

UNITED STATES,

Appellee,

v.

ROYCE BRETON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Dyk,* and Thompson, Circuit Judges.

Timothy E. Zerillo, with whom Amy T. Robidas and Zerillo Law,

LLC, were on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Thomas E. Delahanty II, United States Attorney, was on brief,

for appellee.

January 6, 2014

*

 Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. On May 10, 2012, a jury in the

District of Maine convicted Royce Breton of producing, possessing,

and distributing child pornography. The district judge

subsequently sentenced Breton to 340 months of imprisonment,

followed by fifteen years of supervised release. Breton now

appeals, challenging the admission of certain evidence, the

sufficiency of the evidence as to all charges, and the calculation

of his sentence. Finding none of his claims persuasive, we affirm

both his conviction and his sentence.

I. Facts and Background

Because Breton contests the sufficiency of the evidence,

we present the facts in the light most favorable to the verdict. 

See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir. 2012).

A. The Investigation

The unusual trail leading up to this case began on August

16, 2010, when Lewiston Police Officer David Brule, State Police

Sergeant Glenn Lang, and State Trooper David Armstrong made an

unannounced visit to Breton's house in Sanford, Maine to

investigate an unrelated computer hacking crime.1 Breton, a

nuclear electronics supervisor at the Portsmouth Naval Shipyard and

part-time pre-medical student at the University of New England,

1

 The district judge excluded further information about the

nature of this alleged crime from trial, so we do not dwell on it

here.

-2-
shared the home with his then-wife, Amanda Paradis, and their young

daughter.

The officers arrived at about 1:00 p.m., while Paradis

was at work and Breton, who worked the evening shift, was home

alone. When Breton answered the door, the officers asked if they

could come in to speak with him about the computer hacking crime. 

Before they entered, Trooper Armstrong saw a sizable dog in the

house and asked Breton to secure it in another room. Breton

complied, but he also took advantage of the opportunity to hide the

Sony laptop computer (the "laptop") that he and Paradis shared in

the basement.2

A few moments later, Breton let the officers in and

responded courteously to their questions. He led them upstairs to

his custom-built desktop computer (the "desktop") and an old, nonfunctioning Gateway laptop computer (the "Gateway"). When asked

whether he had used wiping software on those computers, Breton

replied he had not and permitted the officers to take them for

further inspection.3 Breton made no mention of another computer

squirreled away in the basement.

When Paradis arrived home that evening, Breton told her

about the officers' visit and their computer hacking investigation.

2

 The laptop had been a Christmas gift from Breton to Paradis,

but both Breton and Paradis used it.

3

 Wiping software is used to overwrite data in order to

prevent its recovery.

-3-
He said the police had taken the desktop and the Gateway, but they

had not taken the laptop because he had put it in the basement.

Breton explained to her that "he didn't think [the officers] needed

to have [the laptop]," because "[h]e told them everything that they

needed to know."

As a result of this conversation, Paradis decided to take

the couple's daughter and move in with her parents. She also took

the laptop, telling Breton she was worried the police would come

back to their house and blame her for concealing it. On August 26,

2010, ten days after the officers' visit and unbeknownst to Breton,

Paradis contacted the police and arranged for Officer Brule to

retrieve the laptop at her workplace.

About a week later, Breton asked Paradis about the

laptop. When she said she had given it to the police, Breton

became very distraught, saying she had "screwed everything up" and

"he was going to go to jail and lose his job." Later, in a heated

text message exchange, Breton again expressed anger at Paradis for

turning in the laptop and told her he "should have sh[o]t [her]

instead."4

4

 Text records reveal that Breton said this after Paradis said

Breton was a "wackjob" who had "been talking about killing himself

and shooting cops." Breton replied, "I guess I should have sh[o]t

you instead." The jury did not hear the full conversation, but

both Paradis and Breton testified that Breton said he should have

shot Paradis.

-4-
On September 8, 2010, Breton called Officer Brule to ask

when his computers would be returned. They agreed to meet and

discuss the matter on September 20.

In the meantime, Officer Brule examined the laptop and,

in doing so, uncovered sexually explicit images of children in a

hidden file associated with Yahoo Messenger — a chat program that

allows users connected over the internet to converse and exchange

files, including images or videos — and the username

"Shadowwind345." Officer Brule also discovered that wiping

software had been installed on the laptop on August 16, 2010 at

roughly 2:00 p.m. — i.e., shortly after the officers had left

Breton's house. 

At their September 20 meeting, when Officer Brule asked

Breton why he had not turned over the laptop, Breton answered that

it belonged to his wife and contained intimate images of the couple

that he did not want others to see. He admitted to installing the

wiping software on the laptop but claimed he used it only to remove

the private images of him and his wife. He conceded that this

might make it look like he was destroying evidence, but he insisted

that he knew nothing about the Shadowwind345 account and said he

was "completely flabbergasted" when Officer Brule told him about

the child pornography images found on the computer.

Yahoo later informed Officer Brule that the Shadowwind345

account was created on June 23, 2001 and was registered to an

-5-
obviously-fictional "Mr. Nonesuch-ever-was" in Cleveland, Ohio.

Although Breton never admitted to creating the account, at trial

Breton acknowledged that he often used the combination "345" in his

usernames and passwords. For example, his e-mail address was

Breton345@metrocast.net. He also conceded at trial that his dad

used to have a cat named Shadow. The Shadowwind345 account was

deactivated on September 18, 2010 — two days before Breton's

appointment with Officer Brule — from an IP address registered to

MetroCast (Breton's internet provider) at Breton's home, and

associated with Breton's e-mail address.5 An in-depth

investigation followed.

1. The Laptop 

Officer Brule and Secret Service Special Agent Matt

Fasulo, a computer forensics expert attached to the Maine State

Police Computer Crimes Unit, recovered roughly three hundred images

of child pornography from the laptop in hidden folders related to

the Yahoo Messenger program.6 Two hundred of these images were

identified as portraying known child victims in the National Center

for Missing and Exploited Children database. 

5

 An IP address is a series of numbers that identifies

computer information over a network.

6 At trial, the parties stipulated that these images

"contain[ed] visual depictions of actual minors engaging in

sexually explicit conduct as those terms are used in 18 U.S.C.

§ 2256," and had been transported in interstate or foreign

commerce.

-6-
Of the unidentified images, three were singled out as

photographs of a young female child, dubbed "Minor A." Each

depicts a close-up of Minor A's genitals. In the photographs,

Minor A has a crease in her right thigh, is lying on a patterned

quilt, and is wearing a onesie. In one image, an adult hand

displays Minor A's vagina.

At some point, Sanford Police Detective Barbara Gagne

took over the case from Officer Brule and arranged to meet with

Paradis to discuss some of the images found on the computer. She

showed Paradis the Minor A photographs and Paradis identified Minor

A as her daughter. Paradis said her daughter was "a very chubby

baby" who had a visible crease in her right thigh, just like Minor

A. She recognized the patterned quilt in the photographs as the

quilt her aunt had made for her baby shower. She said the onesie

Minor A wore in the photographs was the onesie her daughter "wore

pretty much every day." Paradis also identified the finger in one

of the photographs as Breton's finger based on its appearance and

its short, always-bitten-to-the-quick fingernail.

Additionally, Special Agent Fasulo ran tests to determine

how the Yahoo Messenger folders containing the child pornographic

images were created and whether the images were exchanged.7 His

7 Special Agent Fasulo performed these tests by installing

Yahoo Messenger on two computers and monitoring their interaction

as files were exchanged. Because someone had uninstalled Yahoo

Messenger and wiped the data from the laptop before Paradis gave it

to the police, Special Agent Fasulo was unable to determine what

-7-
investigation revealed that the Yahoo Messenger program

automatically created a folder whenever a chat took place. Each

folder contained all the files that were sent or received during a

particular chat. Ordinarily, the folder would be deleted when the

user closed the program, but if the program "crashed," or

terminated abnormally, the folder would remain on the computer.

Furthermore, Special Agent Fasulo could ascertain whether a

particular image in a folder had been sent or received based on

whether its file name contained a specific sequence of symbols and

letters.

Special Agent Fasulo's analysis indicated that at least

one of the three Minor A images was sent from the laptop using

Yahoo Messenger on April 27, 2009 at 11:42 a.m.; the other two

images were either sent or received at roughly the same time.8 He

also found that an iPhone registered to Breton was connected and

synchronized with the laptop about forty minutes before these

precise version of Yahoo Messenger was used on the laptop.

Accordingly, he utilized several different versions of Yahoo

Messenger available around the time when the files allegedly were

exchanged in order to obtain his results. 

We note that the operating system on the laptop was Microsoft

Windows Vista Home, while the computers used by Special Agent

Fasulo ran Microsoft Windows Vista Business. Special Agent Fasulo

testified that he thought the difference between these systems for

his purposes was negligible, and so there was no need to procure

Windows Vista Home for the test computers.

8

 Special Agent Fasulo did not find any metadata, or embedded

"data about data," within the Minor A image files to indicate when

or how those images were created. 

-8-
images were exchanged. Other evidence showed that Breton did not

report to work that day until 3:30 p.m.

In addition to the images, Special Agent Fasulo

discovered registry files on the laptop with names he had

encountered in other child pornography investigations, including:

"Pthc," meaning "preteen hardcore;" "Lolita," meaning an underage

female; and "girl-in-tent-11-YO," meaning "11-years-old."9

 But he

located no corresponding image files on the laptop.

Special Agent Fasulo also came across a program called

GigaTribe, which, like Yahoo Messenger, allows users to upload

images or files to share on the internet. In a memory folder

created by the operating system that stores information in the

event of a crash, Special Agent Fasulo found GigaTribe folders

associated with the usernames "Royce-$$-2AOB" and "Shadowwind345B." 

In those folders, he identified files with names like "ptsc,"

meaning "preteen softcore," and "kids-teens-women-porno-lolitaspreteens-real-key-movs-r@y-gold-hussyfans-underage-girls-childrenpedophilia-pthc."10 Again, corresponding image files were not found

on the laptop.

Lastly, Special Agent Fasulo discovered a program called

Internet Relay Chat, which brings users with similar interests

9

 Registry files store information about documents or images

that have been opened on a computer.

10 “R@y-gold” and “hussyfans” are known series of child

pornography.

-9-
together in chat rooms. The program was saved to the C:Royce

directory and associated with the nicknames "Shadow345" and

"Shadowwind345," a username "nonesuch," and an e-mail address

none@nowhere.com. The log files of chat rooms visited included

names like "young-girl-sex," "dad-and-daughter-sex," "little-boysex-chat," "mom-daughter-sex," and "teen-sex-pics." Also spotted

in the C:Royce directory was Breton's application to the University

of New England.

2. The Desktop

No images or files containing child pornography were

recovered from the desktop. However, Special Agent Fasulo's

examination of the desktop's three hard drives revealed

considerable past interactions with two web-sharing forums:

imgsrc.ru ("Image Source Russia"), a website that allows users to

upload images from servers in Russia into albums to share publicly

or with password protection; and XNews, a newsgroup website where

readers can comment on particular topics. There was evidence of

past searches on Image Source Russia for such phrases as "12YO,"

"daughter," "naked," "girl," "sex," "14," and "14 plus girl," as

well as evidence of webpages visited containing albums with titles

and keywords like "love Lolita," "children," "young girls," "14YO

topless," and "young nude preteen girls." And although the files

themselves were missing, there was evidence of downloads from XNews

including, "Pthc 11 YR son eat mom" and "O-R-G-A-S-I-S-M.mpg."

-10-
Special Agent Fasulo subsequently accessed the Image

Source Russia website and found a user page registered to the user

"Shadowwind345" at the e-mail address shadowwind345@yahoo.com. 

There were no images on Shadowwind345's user page. However, there

was evidence of activity by this user. On March 6, 2009,

Shadowwind345 posted a comment on a page by the username "Hershey"

entitled "Young Bride," saying "I'd like to see your daughter pics. 

Email me at Shadowwind345@yahoo.com to trade." On May 24, 2009,

Shadowwind345 commented on an album by the username "Low Jack"

entitled "my dau," saying "Have more? Love to see more,

Shadowwind345@yahoo.com if you want my passes or want to see my

private daughter stuff."

B. Pre-Trial Skirmishes

Based on this investigation, Breton was charged with

three counts involving child pornography: (1) using a minor to

engage in sexually explicit conduct for the purpose of producing a

visual depiction of that conduct, in violation of 18 U.S.C.

§ 2251(a); (2) knowingly possessing child pornography, in violation

of 18 U.S.C. § 2252A(a)(5)(B); and (3) knowingly distributing child

pornography, in violation of 18 U.S.C. § 2252A(a)(2). 

Before trial, the government moved in limine to admit

Paradis's testimony regarding, among other things, Breton's

aforementioned statements and text messages. Breton opposed,

claiming they were covered by the marital communications privilege.

-11-
Breton also counter-moved to exclude evidence of file and chat room

names that were suggestive of child pornography where no images

were recovered, claiming the names were irrelevant, unfairly

prejudicial, and unduly confusing.

After a motions hearing, the district judge granted the

government's request to admit Paradis's testimony, applying an

exception to the marital communications privilege for statements

regarding an offense against a child of either spouse. The judge

also denied Breton's motion to exclude suggestive file and chat

room names.

C. Trial and Sentencing

Breton's three-day jury trial began on May 8, 2012. At

the close of the government's case and again at the end of trial,

Breton moved for judgment of acquittal. Both motions were denied.

On May 10, 2012, the jury convicted Breton on all three counts.

At Breton's sentencing hearing on October 12, 2012, the

district judge sentenced Breton to concurrent imprisonment terms of

340 months for count one (production), 120 months for count two

(possession), and 240 months for count three (distribution), with

an additional fifteen years of supervised release.11 This appeal

followed.

11 We will describe Breton's sentencing hearing at greater

length below with respect to his sentencing challenge.

-12-
II. Analysis

Breton raises four issues on appeal: (1) error in

admitting his former wife's testimony about statements that he says

were protected by the marital communications privilege, (2) error

in admitting file and chat room names that were suggestive of child

pornography where no images were recovered, (3) insufficiency of

the evidence as to all three charges, and (4) error in calculating

his sentence under the United States Sentencing Guidelines (the

"Guidelines"). We address each of Breton's arguments in turn but

find none convincing.

A. Marital Communications Privilege

Breton invokes the marital communications privilege to

challenge the district judge's admission of Paradis's testimony

regarding two groups of statements Breton made to Paradis after he

learned she had conveyed the laptop to the police. First, Breton

told Paradis that she had "screwed everything up" and "he was going

to go to jail and lose his job." Second, Breton text-messaged

Paradis that he "should have sh[o]t her instead." Breton argues

that both sets of statements are privileged because he made them to

Paradis in confidence during their marriage. He says the judge

erred by recognizing an exception to the marital communications

privilege for offenses against a spouse's child and by applying

such an exception to these statements, which he says were not

related to a crime against his and Paradis's child.

-13-
We review the admission of evidence over a claim of

privilege for abuse of discretion. In re Grand Jury Subpoena (Mr.

S.), 662 F.3d 65, 69 (1st Cir. 2011). Where relevant to a

determination of privilege, we review rulings on legal questions de

novo and findings of fact for clear error. Id.

In addressing Breton's first claim of error, we note in

general that the party asserting a privilege "bears the burden of

showing that the privilege applies." See Vicor Corp. v. Vigilant

Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012). If the privilege is

established, the burden shifts to the opposing party to show that

an exception defeats the privilege. See id.

In a federal criminal case such as this, claims of

privilege are governed by the common law as interpreted by the

courts in light of their reason and experience. United States v.

Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (citing Fed. R. Evid. 501). 

The common law recognizes two related but distinct marital

privileges: (1) the spousal testimony privilege, which allows one

spouse to refuse to testify adversely against the other in criminal

or related proceedings; and (2) the marital communications

privilege, which permits a defendant to refuse to testify, and

allows a defendant to bar his spouse or former spouse from

testifying, as to any confidential communications made during their

marriage. See United States v. Yerardi, 192 F.3d 14, 17-18 (1st

Cir. 1999); United States v. Bey, 188 F.3d 1, 4 (1st Cir. 1999);

-14-
Rakes, 136 F.3d at 3. Only the latter claim of privilege is at

issue here.

The marital communications privilege exists to promote

marital harmony and stability by "ensur[ing] that spouses . . .

feel free to communicate their deepest feelings to each other

without fear of eventual exposure in a court of law." United

States v. Brock, 724 F.3d 817, 820-21 (7th Cir. 2013) (citation

omitted) (internal quotation marks omitted); United States v.

Banks, 556 F.3d 967, 974 (9th Cir. 2009). Indeed, the protection

of marital confidences is "regarded as so essential to the

preservation of the marriage relationship as to outweigh the

disadvantages to the administration of justice which the privilege

entails." Wolfle v. United States, 291 U.S. 7, 14 (1934).

However, this privilege, like others, "is not limitless,

and courts must take care to apply it only to the extent necessary

to achieve its underlying goals." See In re Keeper of Records

(Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st

Cir. 2003) (discussing attorney-client privilege). Accordingly,

courts have long recognized an exception to the privilege when one

spouse commits an offense against the other, thereby harming the

marital relationship and thwarting the privilege's purpose. Trammel

v. United States, 445 U.S. 40, 46 n.7 (1980) (saying the exception

applies to spousal testimony privilege and marital communications

privilege); see 1 McCormick On Evid. § 84 (7th ed.) (same); see

-15-
also Wyatt v. United States, 362 U.S. 525, 529 (1960) (applying

exception to spousal testimony privilege).

Two of our sister circuits have expanded this "offense 

against spouse" exception to include an offense against a child of

either spouse. United States v. White, 974 F.2d 1135, 1138 (9th

Cir. 1992) (applying exception to marital communications

privilege); United States v. Allery, 526 F.2d 1362, 1367 (8th Cir.

1975) (applying exception to spousal testimony privilege); see also

United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977)

(acknowledging exception to spousal testimony privilege). Another

has gone further, finding the exception covers offenses against a

child-relative visiting in the home. United States v. Bahe, 128

F.3d 1440, 1446 (10th Cir. 1997).12

In United States v. Allery, 526 F.2d 1362, 1366-67 (8th

Cir. 1975), the Eighth Circuit cogently explained why the "offense

12 The remaining circuit courts, including this one, have not

addressed the issue of exceptions for offenses against a child of

either spouse or a child-relative. See Naomi Harlin Goodno,

Protecting "Any Child": The Use of the Confidential-MaritalCommunications Privilege in Child-Molestation Cases, 59 U. Kan. L.

Rev. 1, 37 n.215 (2010). However, a few federal district courts in

these circuits have recognized an expanded exception. See United

States v. Martinez, 44 F. Supp. 2d 835, 837 (W.D. Tex. 1999)

(holding that the marital communications privilege did not apply

where a mother was accused of abusing her two minor children);

United States v. Mavroules, 813 F. Supp. 115, 119-20 (D. Mass.

1993) (finding that the marital communications privilege did not

apply where a wife alleged that her abusive husband had threatened

to injure her father's reputation in order to extort money from

her).

-16-
against spouse" exception should also cover an offense against a

child of either spouse.13

First, a crime against a spouse's child, like a crime

against a spouse, profanes the deep bond of trust and love between

marital partners and disrupts family harmony. Id. at 1366. Such

an offense is irreconcilable with the primary purposes of the

marital communications privilege: to promote marital unity and

stability. White, 974 F.2d at 1138.

Second, there is frequently greater-than-usual need for

parental testimony in prosecutions for crimes against children.

Allery, 526 F.2d at 1366. Tragically and perversely, child abuse

occurs most often in the home at the hands of a parent or parentsubstitute. Id.; Bahe, 128 F.3d at 1446. Testimony regarding

confidential marital communications may constitute critical

evidence in such cases. See Bahe, 128 F.3d at 1446.

Third, like all privileges, the marital privileges hamper

the truth-seeking process and must be interpreted narrowly. 

Trammel, 445 U.S. at 50 (quoting Elkins v. United States, 364 U.S.

206, 234 (1960) (Frankfurter, J. dissenting)); see Allery, 526 F.2d

at 1366 (quoting Hawkins v. United States, 358 U.S. 74, 81 (1958)

(Stewart, J. concurring)).

13 Though Allery involved the spousal testimony privilege, its

rationale is equally applicable to the marital communications

privilege. White, 974 F.2d at 1138; see also Trammel, 445 U.S. at

46 n.7.

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Finally, there is overwhelming state legislative and

judicial authority for the proposition that a crime against a

spouse's child renders the marital communications privilege

inapplicable. Allery, 526 F.2d at 1366-67; see, e.g., Kan. Stat.

Ann. § 60-428(b)(3); Miss. R. Evid. 504(d); Utah R. Evid.

502(e)(3); Munson v. State, 959 S.W.2d 391, 392 (Ark. 1998); State

v. Michels, 414 N.W.2d 311, 315-16 (Wis. Ct. App. 1987).14 Indeed,

of the five state and territorial jurisdictions comprising the

First Circuit, it appears that none would uphold a claim of the

marital communications privilege in cases involving a crime against

a spouse's child.15

14 Approximately half of the states have adopted a "child of

either spouse" or "child who resides in the home" exception to the

marital communications privilege. Goodno, Protecting "Any Child",

supra, at 17-18, 20. The other half have adopted a broader

exception for crimes against any child. Id. at 19-20.

15 Maine law establishes an exception to the marital

communications privilege where "one spouse is charged with a crime

against the person or property of (1) the other, (2) a child of

either, [or] (3) any person residing in the household of either .

. . ." Me. R. Evid. 504(d). 

Massachusetts law excepts "child abuse proceedings, including

incest," from the marital communications privilege. Mass. Gen.

Laws Ann. ch. 233 § 20. Massachusetts courts have interpreted a

similar exception to the spousal testimony privilege to apply to

"abuse of any child." Villalta v. Commonwealth, 702 N.E.2d 1148,

1152 (Mass. 1998).

New Hampshire courts recognize a public policy exception to

the marital communications privilege for cases involving sexual

abuse of a child of either spouse residing in the home. State v.

Pelletier, 818 A.2d 292, 298 (N.H. 2003) (interpreting N.H. R.

Evid. 504).

Puerto Rico law contains an exception to the marital

communications privilege for "[a] crime against the person or

property of the other spouse or a child of either." P.R. Laws Ann.

-18-
Tackling this issue for the first time, we agree with our

sister circuits and the vast majority of states that the "offense

against spouse" exception to the marital communications privilege

must be read to cover an offense against a child of either spouse

in order to further the privilege's underlying goals of promoting

marital and family harmony.16 Accordingly, we find that the

district judge did not err by recognizing an exception to the

marital communications privilege for offenses against a spouse's

child.

We further hold that the district judge did not abuse his

discretion by applying this exception to the statements at issue

here. Breton sought to exclude Paradis's testimony about what he

said to her after she turned the laptop over to police, including

tit. 32, Ap. IV R. 27(D)(2)(i).

Rhode Island courts interpret state statute as permitting a

witness-spouse to testify voluntarily about confidential marital

communications in a criminal case, regardless of whether she is a

victim and notwithstanding the defendant-spouse's objection. See

State v. Angell, 405 A.2d 10, 15-16 (R.I. 1979) (citing State v.

Kenyon, 26 A. 199 (R.I. 1893), and interpreting R.I. Gen. Laws Ann.

§ 12-17-10).

16 Because this case involves a crime against the natural child

of both spouses, we need not address the scope of this exception as

to other children — a question upon which federal and state courts

have reached no consensus. Compare Bahe, 128 F.3d at 1446

(extending exception to cover offense against an 11-year-old

relative visiting the home), and Banks, 556 F.3d at 975-76 (stating

that the exception should cover a spouse's birth child, step-child,

or "the functional equivalent," but declining to extend exception

to offense against a grandchild who was visiting and had formerly

resided in the home); see generally Goodno, Protecting "Any Child",

supra, at 12-22 (discussing the different versions of exception

adopted by federal and state courts and legislatures).

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that she had "screwed everything up," "he was going to go to jail

and lose his job," and he "should have sh[o]t [her]." Breton says

that even if the district judge appropriately adopted an exception

to the marital communications privilege for crimes committed

against a spouse's child, the judge should not have permitted

Paradis to testify about these statements because they were not

related to a crime against his and Paradis's child.

We disagree. Here, all three crimes charged —

production, possession, and distribution — covered crimes against

Minor A, whom Paradis identified as her daughter. As the district

judge determined, Breton's statements about losing his job, going

to jail, and shooting Paradis are reasonably interpreted as

relating to Breton's worries about the impending discovery of his

crimes against his own child. Whether the jury should have been

instructed to disregard this evidence in connection with the

charged crimes against other children (on the theory that the

marital communications privilege applies in that context) is a

question not before us as no such instruction was requested. See

Fed. R. Evid. 105 (stating that when evidence is admissible only

for a limited purpose, "the court, on timely request, must restrict

the evidence to its proper scope and instruct the jury

accordingly") (emphasis added); 21A Charles Alan Wright & Kenneth

W. Graham, Jr., Federal Practice & Procedure: Evidence § 5065, at

329-30 (2d ed. 2005) ("[W]ithout a request the trial court does not

-20-
err in not giving [a limiting] instruction."). Consequently, we

cannot find that the district judge abused his discretion by

concluding that the exception to the marital communications

privilege for offenses committed against the child of either spouse

applied here. We find that the district judge did not err by

admitting Paradis's testimony about these statements.

B. Suggestive File and Chat Room Names

Breton next challenges the admission of file and chat

room names that allude to child pornography where no actual images

were recovered. He contends that this evidence was not relevant to

the charged crimes and that its admission at trial was unfairly

prejudicial and confusing. 

Breton objected to the admission of this evidence on

these grounds before and during trial, thereby preserving these

issues for appeal. We review his preserved challenges to the

admission of this evidence for abuse of discretion. United States

v. Brown, 669 F.3d 10, 21 (1st Cir. 2012).

1. Relevancy

Breton first argues that file and chat room names

suggestive of child pornography were not relevant to the charged

crimes where no corresponding images were recovered. As we have

said before, "[a] relevancy-based argument is usually a tough

sell." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir.

2010). Evidence Rule 401 defines relevant evidence expansively as

-21-
"'evidence having any tendency to make the existence of any fact

that is of consequence' more or less probable." Id. (quoting Fed.

R. Evid. 401). This is not a high bar, and we give a district

judge "considerable leeway in deciding whether the contested

evidence satisfies this . . . standard." Id.

To prove that a defendant knowingly possessed child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) or knowingly

distributed child pornography in violation of 18 U.S.C.

§ 2252A(a)(2) requires a showing of scienter. Courts, including

this one, consider file, chat room, and website names suggestive of

child pornography relevant to proving a defendant's knowledge of

such materials. See, e.g., United States v. Rogers, 714 F.3d 82,

86-87 (1st Cir. 2013) (finding that web browser history of

"numerous visits to websites related to, or with names indicative

of, child pornography" helped show defendant knowingly possessed

child pornography); United States v. Pires, 642 F.3d 1, 9 (1st Cir.

2011) ("[A] defendant's use of search terms associated with child

pornography can support a finding that he knew that the images

retrieved contained child pornography."); United States v. Fabiano,

169 F.3d 1299, 1306 (10th Cir. 1999) (explaining that defendant's

participation in "preteen" chat room for several months prior to

exchange of images helped show defendant was aware of nature of

images before he received them). Furthermore, evidence that a

person deliberately deleted or attempted to delete files containing

-22-
child pornography tends to show that the person was aware of the

files and their illicit nature. See Rogers, 714 F.3d at 87.

Here, Breton opposes the admission of file and chat room

names suggestive of child pornography where no actual images were

found on the computer. Specifically, he challenges the

introduction of registry file names like "pthc" ("preteen

hardcore") and "girl-in-tent-11-YO," ("11-year-old"), which were

found on the laptop without corresponding image files. He also

protests the admission of GigaTribe file names like "kids-teenswomen-porno-lolitas-preteens-real-key-movs-r@y-gold-hussyfansunderage-girls-children-pedophilia-pthc" (naming known series of

child pornography), which were likewise found on the laptop without

image files. He further objects to the admission of Internet Relay

Chat log evidence of chat room names like "young-girl-sex" and

"dad-and-daughter-sex," which were also found on the laptop and not

associated with image files.

The district judge admitted this evidence over Breton's

objections because he believed the file and chat room names were

relevant to "the [g]overnment's effort to establish the scienter

requirement and to show what [Breton] was doing . . . on his

computers, even though there may not have been images in those

particular files." He found that "the combination of file names

and chat rooms cumulatively [could] be used to argue to the jury

that [Breton] was, in fact, involved in child pornography."

-23-
We agree. The presence of files with names indicative of

child pornography — even absent further proof of what, if anything,

those files contained — tends to make it more probable that Breton

knowingly was involved with child pornography. See, e.g., Rogers,

714 F.3d at 86-87. This is particularly true where actual images

of child pornography were found elsewhere on the same computer. 

Moreover, prosecutors could argue that the fact that the hidden

files remained on the laptop without their visible counterparts

after Breton both concealed the laptop from police and selectively

wiped its hard drive suggests Breton deliberately attempted to

delete the files in toto and was aware of their content. See id.

at 87. This evidence easily satisfies the low bar of relevancy set

out in Rule 401.

2. Unfair Prejudice and Confusion

Breton next argues that evidence of file and chat room

names implying child pornography where no actual images were

recovered should have been excluded as unfairly prejudicial and

confusing. Though possessing Rule 401 relevancy, evidence may

nevertheless be excluded under Evidence Rule 403 "'if its probative

value is substantially outweighed by the danger of unfair prejudice

[or] confusion of the issues.'" United States v. Gentles, 619 F.3d

75, 87 n.4 (1st Cir. 2010) (quoting Fed. R. Evid. 403). However,

this rule protects defendants only against evidence that would

produce unfair prejudice, as "'[b]y design, all evidence is meant

-24-
to be prejudicial.'" United States v. Varoudakis, 233 F.3d 113,

122 (1st Cir. 2000) (quoting United States v. Rodriguez-Estrada,

877 F.2d 153, 156 (1st Cir. 1989)). Evidence produces unfair

prejudice when it "invites the jury to render a verdict on an

improper emotional basis." Id. 

We give great deference to a district judge's balancing

of probative value versus unfair prejudice. Gentles, 619 F.3d at

87. This is true even when a judge does not expressly explain the

Rule 403 balancing process on the record. See, e.g., United States

v. Smith, 292 F.3d 90, 98 (1st Cir. 2002) (determining that absence

of findings on record does not preclude meaningful appellate

review); United States v. Santagata, 924 F.2d 391, 394 (1st Cir.

1991) (quoting United States v. De La Cruz, 902 F.2d 121, 123 (1st

Cir. 1990)) ("'[O]n-the-record findings as to the probative

value/prejudicial effect balance' . . . are not always

necessary."); United States v. Foley, 871 F.2d 235, 238 (1st Cir.

1989) (finding no abuse of discretion in exclusion of evidence

despite absence of express findings). "'[O]nly rarely — and in

extraordinarily compelling circumstances — will we, from the vista

of a cold appellate record, reverse a district [judge's]

on-the-spot judgment concerning the relative weighing of probative

value and unfair effect.'" Gentles, 619 F.3d at 87 (quoting United

States v. Li, 206 F.3d 78, 84-85 (1st Cir. 2000)).

-25-
Here, Breton objects to the admission of the file and

chat room names, even if relevant, on the grounds of unfair

prejudice and confusion. Because the district judge did not refer

directly to Rule 403 balancing on the record for this issue, Breton

posits that the judge either failed to conduct the requisite

analysis or reached an incorrect result. He says the probative

value of the file and chat room names was substantially outweighed

by the danger of unfair prejudice and confusion because "it could

not be determined whether there was actual child pornography in the

files" and "[t]he files could have contained images of anything,"

but the names insinuated that the files held pornographic content.

We disagree. Preliminarily, we note that the absence of

an express Rule 403 finding here on this particular piece of

disputed evidence does not mean the district judge failed to

perform this analysis. See Smith, 292 F.3d at 98. The judge's

handling of other disputed evidence demonstrates that he was aware

of his responsibility to weigh the relevant factors and perform

Rule 403 balancing prior to admitting such evidence. See De La

Cruz, 902 F.2d at 123 n.1. In fact, he performed precisely this

analysis on the record with respect to evidence of the previous

investigation of Breton for an unrelated computer crime and

excluded that evidence as a result. We may therefore assume that

the judge tacitly performed this same balancing with respect to the

evidence of file and chat room names before concluding that its

-26-
probative value won out over its potential for creating unfair

prejudice or confusion.

On this record as a whole, we can meaningfully review the

district judge's ruling, see Smith, 292 F.3d at 98, and we agree

with his determination. File and chat room names incorporating

lewd, obscene, or graphic terms suggestive of child pornography

are, of course, prejudicial to Breton, but not unfairly so. They

are not aimed to solicit an improper emotional response from the

jury. In fact, compared with other evidence offered at Breton's

trial — including actual images of child pornography and Paradis's

testimony identifying Breton and their young daughter in some of

those images — this evidence is rather mild. We trust the jury was

able to distinguish between files with and without corresponding

illicit images and to give each evidentiary submission the weight

it deserved. Also, Breton had ample opportunity to minimize the

risk of any confusion through cross-examination of Special Agent

Fasulo, who testified about the file and chat room names at trial. 

When Breton's counsel asked Special Agent Fasulo whether he knew

what was contained in those files, Special Agent Fasulo admitted

that he did not know and that it was possible those files could

have contained something other than child pornography.

Furthermore, we see no "extraordinarily compelling

circumstances" here — and Breton offers none — that would warrant

reversal of the district judge's firsthand weighing of the 

-27-
relative probative value and potential prejudicial or confusing

effect of this evidence. In consequence, we find the district

judge committed no abuse of discretion by admitting the file and

chat room names into evidence.

C. Sufficiency of the Evidence

Third, Breton challenges the sufficiency of the evidence

as to all three counts of his conviction, claiming the government

did not prove beyond a reasonable doubt that he produced, knowingly

possessed, or knowingly distributed child pornography.

Because Breton moved for judgment of acquittal both at

the close of the government's case and at the end of trial, we

review his preserved sufficiency claims de novo. United States v.

Howard, 687 F.3d 13, 19 (1st Cir. 2012). In doing so, we consider

the evidence, both direct and circumstantial, in the light most

favorable to the verdict. Id. We will reverse only if we find

that "even after 'crediting the government's witnesses and drawing

all reasonable inferences in its favor,' no levelheaded jury could

have found [Breton] guilty." United States v. Guerrier, 669 F.3d

1, 7 (1st Cir. 2011) (quoting United States v. Aranjo, 603 F.3d

112, 116 (1st Cir. 2010)). That Breton might develop "a plausible

theory of innocence" will not help him: "the issue is not whether

a jury rationally could have acquitted but whether it rationally

could have found guilt beyond a reasonable doubt." United States

v. Seng Tan, 674 F.3d 103, 107 (1st Cir. 2012). For these reasons,

-28-
challenging the sufficiency of the evidence is usually a longshot,

id., and Breton's attempts miss the mark.

1. Production

Breton first says the government lacked sufficient

evidence to prove he produced child pornography. 18 U.S.C.

§ 2251(a) criminalizes the use of a minor in any sexually explicit

conduct for the purpose of producing a visual depiction of that

conduct.17 The government's evidence on this charge centered around

three photographs of the genitals of an unidentified female child,

dubbed "Minor A," found in the laptop's hidden Yahoo Messenger

folder. The government averred that Breton had taken these

photographs of his young daughter.

Breton claims the jury did not have sufficient evidence

to conclude beyond a reasonable doubt that he produced these

images. Specifically, he cites a lack of computer forensic

evidence conclusively linking him to the Minor A images and says 

17 18 U.S.C. § 2251(a) reads in relevant part:

Any person who employs, uses, persuades, induces,

entices, or coerces any minor to engage in . . . any

sexually explicit conduct for the purpose of producing

any visual depiction of such conduct . . . shall be

punished as provided . . . if that visual depiction was

produced or transmitted using materials that have been

mailed, shipped, or transported in or affecting

interstate or foreign commerce by any means, including by

computer . . . .

Breton has never disputed that the Minor A images qualify as child

pornography and satisfy the interstate commerce element.

-29-
a "biased" Detective Gagne was "desperate" to connect him to the

photographs even if the evidence did not point in his direction. 

He argues Detective Gagne "used" Paradis to try to establish that

Minor A was their daughter, and says "[t]he issue becomes the

influence a detective can have on the case if [she has] a scared

and emotional mother, trying to protect her child, as the only

witness to identify a child in an image of child pornography in

which the child's face does not appear." His argument essentially

boils down to misidentification due to slanted police work: Breton

says he did not take the photographs and Minor A was not his

daughter, but Detective Gagne was fixated on demonstrating the

opposite.

However, viewing the evidence, as we must, in the light

most favorable to the verdict, we cannot help but conclude that a

sound-minded jury could find Breton produced the images in

question. The government's evidence linking Breton and his

daughter to the Minor A photographs was manifold. It included,

among other things: Paradis's identification of Minor A as her and

Breton's daughter based on Minor A's distinctive thigh indentation,

much-worn onesie, and unique, homemade blanket; Paradis's

identification of the adult finger in one photograph as Breton's

based on its appearance and its short fingernail; computer forensic

evidence showing that the Minor A images were distributed from the

laptop shortly after an iPhone registered to Breton was connected

-30-
to the laptop, at a time of day when Breton was not at work; and

messages posted on a Russian image-sharing website by a user named

Shadowwind345 (which matched the Yahoo Messenger username that the

government argued belonged to Breton) asking other users to trade

"daughter pics" and offering to share "my private daughter stuff."

Based on this evidence, a rational jury could conclude

that Breton produced sexually explicit photographs of his daughter

and offered to trade and did trade them with others. It was up to

the jury to weigh this evidence against Breton's claims of

inconclusive computer forensics and biased police work. Viewing

the evidence in the light most favorable to the verdict, we cannot

say a levelheaded jury could not have found Breton guilty as

charged. 

2. Possession

Breton next says the government failed to put forth

sufficient evidence to prove that he knowingly possessed child

pornography. 18 U.S.C. § 2252A(a)(5)(B) prohibits knowing

possession of any material that contains an image of child

pornography.18 Breton's challenge focuses on the element of 

18 18 U.S.C. § 2252A(a)(5)(B) reads in relevant part:

[Any person who] knowingly possesses, or knowingly

accesses with intent to view, any . . . material that

contains an image of child pornography that has been

mailed, or shipped or transported using any means or

facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce by any means,

including by computer, or that was produced using

-31-
knowing possession. In particular, he claims he could not have

knowingly possessed the images of child pornography found in the

laptop's hidden Yahoo Messenger folder because he was not aware the

folder existed.

To satisfy the knowing possession requirement, the

government must demonstrate that Breton possessed, and knew he

possessed, child pornography. Rogers, 714 F.3d at 86. Such

knowledge often is shown through circumstantial evidence. Pires,

642 F.3d at 8-9. For example, a defendant's history of visits to

websites with a child pornography connection or use of search terms

associated with child pornography can support a finding that the

defendant knew the images he retrieved contained child pornography. 

See Rogers, 714 F.3d at 86; Pires, 642 F.3d at 9. Storage of child

pornography images in a computer directory affiliated with

internet-sharing can indicate those images were downloaded from or

transmitted to those websites. Rogers, 714 F.3d at 86. And a

defendant's intentional attempt to delete child pornography files,

such as by placing them in a computer's recycle bin, can suggest he

was aware of the files and their contents. Id. at 87.

materials that have been mailed, or shipped or

transported in or affecting interstate or foreign

commerce by any means, including by computer [shall be

punished as provided].

Again, Breton has never disputed that the images found qualify as

child pornography and satisfy the interstate commerce element.

-32-
 Breton's argument that he could not have knowingly

possessed the images of child pornography found in the laptop's

hidden Yahoo Messenger folder therefore misses the point. Though

the government concedes Breton may not have known that Yahoo

Messenger had saved these particular image files in this particular

location, the government introduced considerable other evidence

that Breton knew the laptop contained images of child pornography. 

This evidence included a history of visits to websites and chat

rooms connected with child pornography (such as Image Source Russia

and Internet Relay Chat rooms named "young-girl-sex" and "dad-anddaughter-sex"); web searches for terms associated with child

pornography (e.g., "12YO," "daughter," "naked," "girl," and "sex");

and the discovery of child pornography images in the hidden Yahoo

Messenger file affiliated with internet-sharing. It also included

evidence that Breton concealed the laptop and selectively wiped its

data before Paradis handed it over to police, which could suggest

Breton knew the laptop held child pornography and wanted to get rid

of it before the police found it. From this and other evidence

presented at trial, a jury reasonably could infer that Breton

knowingly possessed child pornography beyond a reasonable doubt. 

We will not disturb its finding.

-33-
3. Distribution

Last, Breton says the government did not provide

sufficient evidence to prove he distributed child pornography. 18

U.S.C. § 2252A(a)(2) proscribes the knowing distribution of child

pornography.19 To demonstrate that Breton distributed child

pornography, the government relied primarily on Special Agent

Fasulo's forensic analysis of the laptop and the Yahoo Messenger

program. Special Agent Fasulo ran tests to determine how the Yahoo

Messenger program works. He testified that he could ascertain

whether a particular file created by Yahoo Messenger had been sent

or received based on whether its name contained a certain sequence

of symbols and letters. Based on this information, he opined that

certain files containing images of child pornography on the laptop

had been sent or received. 

Breton argues that Special Agent Fasulo's testing was

incomplete, inaccurate, and incapable of supporting a finding that

he had distributed child pornography beyond a reasonable doubt. To

19 18 U.S.C. § 2252A(a)(2) reads in relevant part:

[Any person who] (2) knowingly receives or distributes--

(A) any child pornography that has been mailed, or using

any means or facility of interstate or foreign commerce

shipped or transported in or affecting interstate or

foreign commerce by any means, including by computer; or

(B) any material that contains child pornography that has

been mailed, or using any means or facility of interstate

or foreign commerce shipped or transported in or

affecting interstate or foreign commerce by any means,

including by computer [shall be punished as provided].

-34-
support his claim, Breton says Special Agent Fasulo's methods were

flawed because he did not use the precise versions of Microsoft

Windows and Yahoo Messenger that were installed on the laptop when

he simulated sending and receiving files. While the laptop ran

Windows Vista Home, Special Agent Fasulo's test computers ran

Windows Vista Business. Furthermore, because someone had

uninstalled Yahoo Messenger and used wiping software on the laptop

before the police retrieved it from Paradis, Special Agent Fasulo

could only guess at which version of Yahoo Messenger had run on the

laptop previously. In the end, Breton says, Special Agent Fasulo

could not say with certainty whether the versions of those programs

that were installed on the laptop would have behaved or interacted

identically to the versions of those programs that Special Agent

Fasulo actually tested.

However, this argument is unavailing. Breton's counsel

rigorously cross-examined Special Agent Fasulo on this point and

others relating to the testing process at trial. Breton's counsel

asked specific questions about variations among different versions

of Yahoo Messenger, including how they exchanged files and their

interactions with Windows Vista. This questioning challenged the

reliability of Special Agent Fasulo's testing process and

methodology. It was for the jury to decide whether to trust

Special Agent Fasulo's testimony and analysis over Breton's

criticisms of his procedures. Crediting this evidence and drawing

-35-
all reasonable inferences in the verdict's favor, we find that a

jury could (and did) rationally find Breton guilty of distribution. 

Accordingly, the last of Breton's sufficiency challenges fails, and

we find sufficient evidence supports the jury's conviction on all

three counts.

D. Sentencing

Finally, Breton challenges his sentence. Breton claims

the district judge erred by computing a Guidelines sentence of 720

months because none of the counts of his conviction permits the

imposition of a life sentence and, according to Breton, the United

States Sentencing Commission (the "Commission") "caps a life

sentence at 470 months." We will add more detail to Breton's

argument in a moment. At this point, though, we note that Breton

in fact received a sentence of 340 months of imprisonment, plus

fifteen years of supervised release.

We review a district judge's sentence for reasonableness,

which is a two-part inquiry. Gentles, 619 F.3d at 88 (quoting

United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). We

begin by determining whether the district judge committed any

procedural errors, such as, among other things, "'failing to

calculate (or improperly calculating) the Guidelines range.'" Id.

(quoting Politano, 522 F.3d at 72). Where the district judge has

made no such error, we then consider "the substantive

-36-
reasonableness of the sentence actually imposed and review [it] for

abuse of discretion." Politano, 522 F.3d at 72.

Within this rubric, we afford the district judge wide

discretion, as "after the [judge] has calculated the [Guidelines

range], 'sentencing becomes a judgment call.'" Id. at 73 (quoting

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). That

we, "'sitting as a court of first instance, would have sentenced

the defendant differently,'" is not a basis for reversal. United

States v. Stone, 575 F.3d 83, 94 (1st Cir. 2009) (quoting Martin,

520 F.3d at 92). Rather, we defer to the sentence as reasonable so

long as it is supported by "'a plausible sentencing rationale'" and

reaches "'a defensible result.'" See Gentles, 619 F.3d at 89

(quoting Martin, 520 F.3d at 96).

1. Breton's Sentencing Hearing

Breton's sentencing hearing took place on October 12,

2012. The district judge began by recounting the materials he had

received and reviewed since the pre-sentence conference, including

the parties' sentencing memoranda with accompanying exhibits and

the revised pre-sentence report with Breton's objections. After

hearing from the victims20 and Breton, the district judge found the

facts as set out in the revised pre-sentence report.

20 In addition to Paradis, who spoke on behalf of herself and

the couple's daughter, the judge received victim impact statements

from several of the victims appearing in photographs found on the

laptop who were identified through the National Center for Missing

and Exploited Children database.

-37-
Next, the district judge calculated Breton's Guidelines

sentence range. Pursuant to the Guidelines' rules of grouping, he

grouped counts one (production) and three (distribution). See

U.S.S.G. § 3D1.2. He then set the base offense level for count two

(possession) at eighteen. See U.S.S.G. § 2G2.2. Adopting the presentence report's recommended adjustments, he calculated the total

offense level for count two to be thirty-four.21 For counts one and

three combined, he set the base offense level at thirty-two. See

U.S.S.G. § 2G2.1. Again applying the pre-sentence report's

recommended adjustments, he determined that a total offense level

of forty-three governed.22 Based on Breton's lack of past criminal

history, he placed Breton in criminal history category I. Breton

does not challenge any of these classifications or calculations.

21 The district judge made the following adjustments: He added

two levels because the materials included images of prepubescent

minors; two levels because Breton distributed the materials; four

levels because some of the images portrayed sadistic or masochistic

conduct or other depictions of violence; two levels because the

images were found on a computer; four levels based on the quantity

of images found; and two levels for obstruction of justice because

Breton's wiping of the laptop was designed to impede the

investigation of his conduct.

22 The district judge made the following adjustments: He added

four levels because the victim was less than twelve years old; two

levels for the sexual contact; two levels because Breton

distributed at least one image of the victim; two levels because he

was the parent of the minor victim; and two levels for the

obstruction of justice. He declined to include a reduction for

acceptance of responsibility, but he reduced the total offense

level from forty-four to forty-three because forty-four is higher

than any level in the Guidelines table.

-38-
At total offense level forty-three and criminal history

category I, the Guidelines sentence was life in prison. See

U.S.S.G. § 5A (Sentencing Table). However, as the district judge

noted, a maximum term of life was not available under any of the

charged statutes: the production count carried a minimum of fifteen

years and a maximum of thirty years, see 18 U.S.C. §§ 2251(a),

2251(e); the possession count set a maximum of ten years, see 18

U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2);23 and the distribution count

provided for a minimum of five years and a maximum of twenty years,

see 18 U.S.C. §§ 2252A(2), 2252A(b)(1). Under the Guidelines,

"[w]here the statutorily authorized maximum sentence is less than

the minimum of the applicable guideline range, the statutorily

authorized maximum sentence [is] the guideline sentence." U.S.S.G.

§ 5G1.1(a). Accordingly, the district judge added the maximum

statutorily authorized penalties for each count of Breton's

conviction — thirty years for count one, ten years for count two,

plus twenty years for count three — to set Breton's total

Guidelines sentence at sixty years, or 720 months.

23 18 U.S.C. § 2252A(b)(2) sets a maximum term of ten years

generally, but it raises the maximum to twenty years for a

violation of 18 U.S.C. § 2252A(a)(5)(B) "if any image of child

pornography involved in the offense involved a prepubescent minor

or a minor who had not attained 12 years of age." Accordingly, it

would seem based on the facts of this case that the appropriate

maximum on the possession count would in fact be twenty years,

rather than ten years. However, the district judge did not use the

twenty-year maximum to calculate Breton's Guidelines sentence and

neither party has challenged this aspect of his calculation, so we

need not address this distinction here.

-39-
Breton objected to setting the Guidelines range at 720

months. Relying on an appendix to the Commission's 2011 Sourcebook

of Federal Sentencing Statistics (the "Sourcebook"), Breton argued

that the Commission had capped a life sentence at 470 months,

meaning that a 720-month sentence would far exceed what was

considered a life sentence. Because the charged statutes did not

authorize imposition of a life sentence, he argued the statutory

maximum (and, consequently, the Guidelines sentence) that applied

to him must be below 470 months. Returning to the Guidelines,

Breton argued he should be subject to the next-highest Guidelines

sentence offered below life imprisonment: 360 months. See U.S.S.G.

§ 5A (Sentencing Table).

The section of the Sourcebook to which Breton referred

sets forth a description of the variables used to generate

statistics about federal sentencing. The relevant language reads

as follows:

Length of Imprisonment

Using sentencing information obtained from the

Judgment and Commitment Order, Length of

Imprisonment is reported as the mean and

median terms of imprisonment . . . ordered for

cases committed to the Bureau of Prisons

. . . . In most cases for which the exact

term is unknown, the Judgment and Commitment

Order merely specifies a sentence of time

served. Prior to fiscal year 1993, the

Commission defined life sentences as 360

months. However, to reflect life expectancy

of federal criminal defendants more precisely

and to provide more accurate length of

imprisonment information, life sentences and

-40-
all sentences above 470 months are now capped

at 470 months.

Sourcebook, Appendix A, at 3 (emphasis added). Similar language

describes variables used to tabulate sentence length. Id. 

The district judge disagreed with Breton's interpretation

of this text. Rather than "capping" life sentences as effectuated

at 470 months, this was "an explanation of how the Commission staff

compiled their statistics and data." He went on:

This . . . comes from a source book of

sentencing statistics where the Commission

tries to put together facts and figures to

show what is going on and where there is no

identified length of sentence, the

statistician has to insert something so that

they can add things in meaningful numbers and

I understand that's where the 470 months comes

from, an attempt to reflect the life

expectancy of people who are committed for

life.

In other words, the Sourcebook's explanation had nothing to do with

calculating the Guidelines sentence range.

Consequently, the district judge maintained that Breton's

Guidelines sentence range was up to 720 months. He considered

whether downward departures were warranted but applied none because

the Guidelines generally forbid such departures in child

pornography cases. See U.S.S.G. § 5K2.0. He then weighed the

statutory factors to be considered in imposing a sentence under 18

U.S.C. § 3553(a). On the one hand, the abhorrent nature of the

offense (particularly against Breton's own child) and the need for

adequate deterrence called for harsh punishment. See 18 U.S.C.

-41-
§ 3553(a). On the other, Breton's history and characteristics were

"generally good:" this was his first offense, and by all accounts

he appeared to be "intelligent, hardworking, [and] respected by his

employer, his employees, [and his] family." See id. According to

the district judge, a strong sentence and a term of supervised

release would protect the public. See id. The judge also

expressly considered the interests of proportionality, promoting

respect for the law, imposing just punishment, and avoiding

unwanted sentence disparities among defendants with similar records

who have been found guilty of similar conduct. See id.

Finally, the district judge observed that his overall

duty was to impose a procedurally and substantively reasonable

sentence. In his view, a 720-month sentence was plainly not

reasonable. The government had argued that a twenty-five to

thirty-year sentence would be appropriate; Breton argued that a

fifteen-year sentence (the statutory minimum for count one) would

be more reasonable. Considering the factors outlined above, the

judge agreed with the government. He settled on a sentence of 340

months (twenty-eight years and four months) for count one, to run

concurrently with 120 months for count two and 240 months for count

three, followed by a fifteen-year term of supervised release.

-42-
2. Procedural and Substantive Reasonableness

On appeal, Breton alleges a single procedural error: the

improper calculation of his Guidelines sentence based on what he

claims is an incorrect understanding of what constitutes a life

sentence. Relying on the Sourcebook, he reprises his trial

argument that any sentence above 470 months is tantamount to a life

sentence, so the district judge was required to set his Guidelines

sentence below that amount in order to avoid procedural error.

Like the district judge, we reject Breton's argument.

Though 470 months may be an accurate statistical representation of

the actual length of many life sentences — and may indeed be

equivalent to a life sentence for many individuals — there is no

"cap" within the Guidelines that limits life sentences to 470

months, and we have no reason to believe the Commission intended to

set such a limit by publishing its statistical analysis. 

Accordingly, the district judge followed appropriate procedure

when, upon finding that the recommended Guidelines range of a life

sentence was unavailable for the crimes charged, he combined the

respective statutory maximum penalties to set Breton's Guidelines

sentence at 720 months. See U.S.S.G. § 5G1.1(a). There was no

procedural error here.

Furthermore, we cannot say the district judge abused his

discretion by imposing a sentence of 340 months. This term is less

than half the length of the Guidelines sentence that Breton opposed

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so vigorously, and it is twenty months below the maximum sentence

for count one of Breton's conviction. See 18 U.S.C. §§ 2251(a),

2251(e). It represents the district judge's comprehensive

understanding of the facts and careful weighing of the § 3553(a)

factors at play in this case. Moreover, Breton himself offers no

argument against the substantive reasonableness of the sentence

actually imposed at this stage of the case.

We have previously expressed our view that the Guidelines

sentence ranges that operate in child pornography cases are harsher

than necessary. See Stone, 575 F.3d at 97. However, under the

applicable Guidelines, the sentence imposed here was both

procedurally and substantively reasonable. Accordingly, Breton's 

challenge fails.

III. Conclusion

For the reasons stated, we affirm Breton's convictions

and his sentence.

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