United States Court of Appeals 

For the First Circuit 

No. 15-2088 

 UNITED STATES OF AMERICA, 

Appellee, 

v. 

NELSON SANTIAGO-COLON, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

 Before 

Lynch, Circuit Judge, 

Souter,* Associate Justice, 

and Kayatta, Circuit Judge. 

Eric Alexander Vos, Federal Public Defender, Vivianne M. 

Marrero, Assistant Federal Public Defender, and Liza L. RosadoRodriguez, Research and Writing Specialist, on brief for 

appellant. 

 Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana 

E. Bauzá-Almonte, Assistant United States Attorney, and Julia M. 

Meconiates, Assistant United States Attorney, on brief for 

appellee. 

March 19, 2019 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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LYNCH, Circuit Judge. After a jury trial, Nelson 

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

transporting a minor with intent to engage in criminal sexual 

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

within-guidelines sentence of forty years' imprisonment. He 

argues that his sentence is procedurally unreasonable because it 

allegedly was based on unreliable information in his presentence 

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

consider his argument that the relevant sex offense guidelines are 

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

also argues that his sentence is substantively unreasonable, as it 

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

into account his ability to rehabilitate. We affirm. 

I. 

We recount only those facts necessary to understand the 

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

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

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

and sixteen, including over twenty incidents with one victim. 

The instances of abuse followed a pattern. SantiagoColon met the victims and their families through the church. He 

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

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

activities such as his mentoring of them or their washing of the 
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church van. The visits usually started with the victims eating 

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

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

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

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

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

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

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

were asleep or awake. 

The victims were forced to spend the night with SantiagoColon, usually sleeping in the same bed as Santiago-Colon, before 

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

times sexually abused the victims in other locations, including in 

his private car.

Santiago-Colon was able to continue his predations 

because he instructed the victims not to tell anyone about the 

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

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

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

Santiago-Colon had abused them because he was a pastor. SantiagoColon's former wife, who divorced him in June 2013, testified at 

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

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

advice." Santiago-Colon's former wife said she believed him 
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because he was a pastor. Four of the victims, including one who 

was not listed in the indictment, testified at trial. 

We bypass a description of the overwhelming evidence of 

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

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

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

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

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

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

a minor to engage in prohibited sexual conduct, id. 

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

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

The PSR calculated that each count had an adjusted total 

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

because there were multiple counts, for a combined adjusted offense 

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

because the defendant engaged in a pattern of activity involving 

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

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

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

range to be 360 months to life. 

At the sentencing hearing, Santiago-Colon requested that 

the court impose the statutory minimum sentence of ten years' 

imprisonment. The government did not provide a specific sentencing 
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recommendation, but argued that nothing less than ten years per 

victim would be appropriate.

The district court agreed with the guidelines 

calculations in the PSR. The court also considered the specific 

characteristics of the defendant, including his use of his position 

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

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

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

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

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

he did not want to testify). 

The court overruled Santiago-Colon's objection to the 

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

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

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

relevant conduct as to which sufficient information was gathered, 

the witness was interviewed, the information was made available in 

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

objection that the sentence was excessive and greater than 

necessary, stating that Santiago-Colon had not shown any 

guidelines calculation error and the sentence was appropriate. 

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

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

concurrently. The court had discretion to order that the terms of 
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imprisonment run consecutively, but chose not to do so. See 18 

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

II. 

"Preserved claims of sentencing error are typically 

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

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

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

sentence imposed is procedurally reasonable and then determine 

whether it is substantively reasonable." United States v. 

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

A. Procedural Reasonableness 

Santiago-Colon first argues that information in the PSR 

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

trial, was unreliable, because there was "no official 

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

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

report. 

There are two responses, each of which disposes of the 

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

information was not unreliable and was relevant conduct. In 

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

officer relied on the official reports of the government's case 
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agent who interviewed John Doe 4 during the criminal investigation 

of Santiago-Colon. 

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

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

unsupported by countervailing proof, the district court is 

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

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

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

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

evidence about the challenged information. Santiago-Colon argues 

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

not give defense counsel John Doe 4's full name. But SantiagoColon never asked the district court to order the government to 

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

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

same all-or-nothing approach on appeal.1

Next, Santiago-Colon argues that the district court 

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

 1 Santiago-Colon's reliance on United States v. Hinkley, 

803 F.3d 85 (1st Cir. 2015), is misplaced. In that case, the 

district court applied a five-level enhancement for a pattern of 

activity involving prohibited sexual contact between the defendant 

and a minor, based on police reports and the testimony of the agent 

that investigated the minor's complaint. See id. at 92. Hinkley 

affirmed that "[t]he sentencing court has broad discretion to 

accept relevant information without regard to its admissibility 

under the rules of evidence applicable at trial, as long as it 

concludes that the information has sufficient indicia of 
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his policy argument about the alleged lack of empirical basis for 

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

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

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

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

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

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

district court's broad discretion obviously includes the power to 

agree with the guidelines."). 

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

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

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

somehow invalid for a district court, in its broad sentencing 

discretion, to conclude that its reason for rejecting a Kimbrough 

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

B. Substantive Reasonableness 

Santiago-Colon argues that his sentence was "in 

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

 

reliability." Id. "Even conduct that did not lead to a conviction 

may be considered." Id. at 92-93 (citing U.S.S.G. § 4B1.5 cmt. 

4(B)(ii)). 

2 Santiago-Colon argues in passing that the district court 

relied on Santiago-Colon's former wife's testimony that "other 

boys stayed at his house, insinuating that they also were victims." 

He argues that "[t]he record did not support the ominous meaning 

given to that statement." The district court stated that the 

victims who testified at trial were "among the individuals or 

youngsters that use[d] to stay at the house," and that Santiago-
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did not give him an opportunity to prove to the court that he is 

capable of rehabilitating himself. 

The district court considered the factors outlined in 18 

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

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

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

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

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

punishment. Moreover, despite the evidence of guilt, SantiagoColon throughout maintained he was innocent of the charges -- 

hardly an indication of intent to rehabilitate. 

"To undermine the substantive reasonableness of a 

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

powerful mitigating reasons and persuade us that the district judge 

was unreasonable in balancing pros and cons despite the latitude 

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

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

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

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

Affirmed. 

 

Colon's former wife stated that, "even as to these same 

individuals," the defendant followed the pattern of "taking the 

juveniles to his bedroom and at some point in time when the lights 

were to be turned out she was dispatched to her bedroom along with 

his son and no one else knew what happened." These statements are 

supported by the record.