Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 11-1542

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                     GREGORIO ROMAN-PORTALATIN,
                        Defendant, Appellant.


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

         [Hon. Daniel R. Dominguez,         U.S. District Judge]


                                  Before

                        Lynch, Chief Judge,
                    Souter, Associate Justice,*
                     and Lipez, Circuit Judge.


     Chauncey B. Wood, with whom Wood & Nathanson, LLP, was on
brief, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emila Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, were on brief, for appellee.


                             April 25, 2012




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           SOUTER, Associate Justice.          The defendant, Gregorio

Roman-Portalatin, pleaded guilty to charges of persuading a minor

to engage in unlawful sexual conduct, 18 U.S.C. § 2422(b), and

possessing child pornography, 18 U.S.C. § 2252(a)(4)(B).            Although

the plea agreement recommending a sentence of 135 months in prison

was based on the assumption of an advisory guidelines sentencing

range of 135-168 months, the probation officer’s presentence report

calculated the range at 168-210 months owing to what the Government

here agrees was the erroneous assumption that the sentencing range

was   subject   to   enhancement   by    application   of   United    States

Sentencing Guideline § 2G2.1(b)(6)(B)(ii), referring to use of a

computer   to   “solicit   participation    with   a   minor   in   sexually

explicit conduct for the purpose of producing sexually explicit

material or for the purpose of transmitting such material live.”

The Government accepts the defendant’s position that this provision

applies only to communications with third parties, not with a

victim, see United States v. Jass, 

, 66-68 (2d Cir.

2009), a position that we have no occasion to pass upon.             Defense

counsel did not, however, file any objection to the report on this

point, and at the sentencing hearing the District Court accepted

the range as calculated by the probation officer.           The judge went

on to explain that he was varying downward from that range, by

imposing a 145 month sentence for the sexual conduct, based on the

sentencing considerations listed in 18 U.S.C. § 3553(a), along with


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a concurrent 120 months on the possession charge.                     When defense

counsel       then     sought    reconsideration          and     questioned       the

applicability of the Guidelines subsection (ii) for computer use,

the judge responded that he had not applied that provision when he

imposed the sentence below the 168-210 month range.

              Despite the judge’s variance from the higher Guidelines

range, in this appeal from the sentence Roman-Portalatin argues

that the erroneous range enhancement calculation affected him

prejudicially on one or the other of two theories: either that the

judge decided on a figure to subtract from the low end of the

Guidelines range, leaving a higher result after doing the math; or

that the judge engaged in a soft-edged numerical comparison, with

the agreed upon 135 months looking just too low as measured against

a range starting at 168.

              The     Government     responds      that    this      reasoning      is

irrelevant, given the announced reliance on § 3553(a), not the

Guidelines.         In the alternative it points out that the defendant

could not have been prejudiced by the error, on the assumption

there   was    one.      Section     2G2.1(b)(6)(B)(i)          provides   the    same

sentence enhancement for using a computer to induce the victim to

engage in sexually explicit conduct with intent to produce related

material      or     transmit   it   live,    as    (ii)    provides       when   the

communication is with a third party, and the plea agreement makes

it clear that Roman-Portalatin employed his computer to induce the


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victim to submit to what is conventionally called statutory rape

“and to send images of herself naked and touching herself via the

web cam.”

            We need not go into the former response, for the latter

is dispositive under each of the defendant’s alternative analyses

of what happened: that his counsel preserved the objection to

applying § 2G2.1(b)(6)(B)(ii), that counsel failed to preserve it

but plain error affected the sentence, or that counsel’s deficiency

at preserving the error amounted to constitutionally ineffective

assistance entitling him to resentencing.            Prejudice is ordinarily

a necessary condition for any order for resentencing, no matter how

we view the record, and the defendant loses no matter which

standard of error correction we might apply.

            If we assume that the claim was preserved, the sentence

still    stands    if   the   Government    can   show   that   the   error   was

harmless.    See, e.g., United States v. McGhee, 

, 158

(1st Cir. 2011) (“[O]nce the court of appeals has decided that the

district court misapplied the Guidelines, a remand is appropriate

unless the reviewing court concludes, on the record as a whole,

that the error was harmless, i.e., that the error did not affect

the     district    court’s     selection    of    the   sentence     imposed.”

(alteration in original) (quoting Williams v. United States, 

, 203 (1992))).




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          Here, the Government’s burden is clearly satisfied: the

defendant signed the “Government’s Version of the Facts” in the

plea agreement, stating that he “did use . . . a computer . . . to

knowingly . . . induce . . . a fifteen year-old female to engage in

sexual activity with him and to send via the web cam images of

herself in sexually explicit poses.” The consideration of computer

use to set the higher sentencing range as calculated in the

presentence report was therefore undoubtedly correct, and the

mistaken subsection citation does not rise above the level of

typographical mistake.

          If, instead, we assume the claim was not preserved by

adequate objection at the hearing, the defendant’s burden to obtain

relief under the plain error standard includes a showing that the

error affected his substantial rights, that is, that there is a

reasonable probability that the judge would have imposed the

sentence agreed upon (or at least one less than 145 months), absent

the error, see United States v. González-Castillo, 

, 83

(1st Cir. 2009). For the reason just explained, he cannot do that,

no matter what significance (if any) the consideration of computer

use might have played in the sentencing judge’s mental process.

          And, quite obviously, the same reason dooms the claim of

constitutionally ineffective assistance of counsel, which requires

a defendant to show “a reasonable probability that, but for

counsel’s ... errors, the result of the proceeding would have been


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different.”   Strickland v. Washington, 

, 694 (1984).

The most that counsel might have done here would have resulted in

substituting “(i)” for “(ii)” in a corrected presentence report.

          Affirmed.




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