United States v. Castellon
| Decision Date | 18 May 2017 |
| Docket Number | No. CR 15-0066 JB,CR 15-0066 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VICTOR CASTELLON, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Defendant's Objections to the Amended Presentence Report, filed August 11, 2015 (Doc. 29)("Objections"). The Court held a hearing on August 12, 2015. The primary issue is whether a 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A) applies, because, when Defendant Victor Castellon exchanged text messages with a law enforcement officer whom he believed to be a twelve-year-old female, Castellon misrepresented his age by saying that he was forty-five years old when he was, in fact, fifty-one years old. The Court concludes that, in this circumstance, the 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A) does not apply. The Court, therefore, will sustain Castellon's objection to the 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A).
The Court draws its presentation of the facts from the Defendants' Plea Agreement, filed May 4, 2015 (Doc. 23)("Plea Agreement"). In the Plea Agreement, Castellon declared to the following facts to be true:
On or about September 17, 2014, the Defendant responded to a Craigslist notice that appeared to be posted by a minor female child. Unbeknownst to the Defendant, the posting was made by an undercover law enforcement agent posing as a child. The initial communication from the Defendant travelled through the internet to the Craigslist servers, which are located outside the state of New Mexico. From on or about September 17, 2014, to on or about September 18, 2014, the Defendant engaged in text message conservations with the "minor," utilizing a cellular telephone that was manufactured in China. During these conversations, the Defendant learned that the "minor" was twelve years old. Eventually the Defendant initiated conversation regarding the possibility of having a sexual relationship with the "minor," and on September 18, 2014, the Defendant suggested an in-person meeting, in Bernalillo County New Mexico, where he was taken into custody. After his arrest, the Defendant waived his Miranda Rights1 and made a statement to law enforcement admitting that he believed he was meeting a minor child for the purpose of engaging in sexual activity.
After a federal Grand Jury indicted Castellon on one count of attempted coercion and enticement, he pled guilty. The United States Probation Office ("USPO") disclosed a PSR, which applied a 2-level enhancement pursuant to U.S.S.G. § 2G1.3(b)(2)(A). Castellon objected to that enhancement, and the USPO responded.
On January 5, 2015, a federal Grand Jury indicted Castellon on one count of attempted coercion and enticement "[i]n violation of 18 U.S.C. § 2422(b) and N.M. Stat. Ann. § 30-9-11 (1978)." Indictment at 1, filed January 8, 2015 (Doc. 2). On May 4, 2015, Castellon pled guilty to that charge. See Plea Agreement ¶ 3, at 2. Castellon represents that his plea "is freely and voluntarily made." Plea Agreement ¶ 24, at 9.
The United States Probation Office ("USPO") disclosed Presentence Investigation Reportat 1, on July 8, 2015 ("PSR"). Under U.S.S.G. § 2G1.3, the PSR calculates the base offense level for a violation of 18 U.S.C. § 2422(b) to be 28. PSR ¶ 20, at 5. The PSR then applies a 2-level enhancement for specific offense characteristics, because "[t]he defendant exchanged text messages with a presumed 12 year old female and persuaded her to engage in sexual acts including oral and vaginal sex." PSR ¶ 21, at 6. The PSR next applies an enhancement under U.S.S.G. § 4B1.5, stating that "the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction." PSR ¶ 26, at 6. "Therefore," the PSR calculates, "the offense level is 37." PSR ¶ 26, at 6. The PSR then applied a 2-level downward adjustment under U.S.S.G. § 3E1.1(a) and a 1-level downward adjustment under U.S.S.G. § 3E1.1(b), because Castellon accepted responsibility and timely notified his intention to enter a plea of guilty. See PSR ¶¶ 27-28, at 6. Consequently, the PSR calculated the total offense level to be 34. See PSR ¶ 29, at 6.
The PSR details Castellon's criminal history, which includes a conviction for "Transportation of Minors; Engaging in Illicit Sexual Conduct in Foreign Places," PSR ¶ 32, at 6-7, and calculates a criminal history category of V, see PSR ¶ 35, at 8 (citing U.S.S.G. § 4B1.5). The PSR states that, "[b]ased on a total offense level of 34 and a criminal history category of 5, the guideline imprisonment range is 235 months to 293 months." PSR ¶ 71, at 14. The PSR also advises that the minimum term of imprisonment is 10 years. PSR ¶ 70, at 14 (citing 18 U.S.C. § 2422(b)).
On August 10, 2015, the USPO disclosed an amendment to PSR ¶ 21, at 6. See Memorandum re: Victor Castellon, Case No. 1:15CR00066-001JB, Changes to Presentence Report, disclosed August 10, 2015 ("PSR Amendment"). As amended, PSR ¶ 21, at 6, provides:
PSR Amendment at 1. The PSR Amendment also states that "the total offense level is not affected by this change and remains the same." PSR Amendment at 1.
Objections at 1. See id. ¶ 6, at 3 ( ). Nevertheless, Castellon presents an argument for this objection to the U.S.S.G. § 2G1.3(b)(2)(A) 2-level enhancement. See Objections ¶¶ 1-5, at 1-2.
Castellon argues that, when promulgating U.S.S.G. § 2G1.3(b)(2)(A), the Sentencing Commission was concerned with "material misrepresentations that would induce the minor to act, when they would not if the truth was known." Objections ¶ 4, at 2. Castellon provides the examples of an adult pretending to be: (i) a fellow teenager; or (ii) a little league baseball coach. See Objections ¶ 4, at 2. Castellon then argues that "[l]ying about where you fall within the spectrum of middle age is not a misrepresentation that can support enhancement under §2G1.3(b)(2)," because "there is nothing about the misrepresentation that would gain theadditional trust of the child . . . ." Objections ¶ 4, at 2. Castellon further contends that Castellon's false statement that he was forty-five, instead of fifty-one, had no effect upon the hypothetical minor. See Objections ¶ 5, at 2. Castellon also notes that "[p]ersonal vanity does not support the enhancement." Objections ¶ 5, at 2. Castellon then requests that the Court adopt the plea agreement and impose a sentence of 10 years -- "the low end of the range of the plea agreement." Objections ¶ 7, at 3.
The USPO responds to the Objections in the USPO's Addendum to the Presentence Report at 1-2, disclosed August 11, 2015 ("Addendum"). The USPO states that Castellon "misrepresented his identity, specifically his age by telling the alleged 12 year old that he was 45 years old." Addendum at 1. The USPO argues that the enhancement under U.S.S.G. § 2G1.3(b)(2)(A) applies if the misrepresentation includes "a participant's name, age, occupation, gender, or status," so long as misrepresentation was made to persuade or facilitate the travel of a minor to engage in unlawful sexual conduct. Addendum at 1 (emphasis in original). The USPO argues that the specific offense characteristic provided by U.S.S.G. § 2G1.3(b)(2)(A) applies, because, "[i]n the text message exchange, after the defendant claims he is 45 years old, he proceeds to persuade . . . the alleged 12 year old to engage in prohibited sexual conduct." Addendum at 2.
In Apprendi v. New Jersey, 530 U.S. 466, (2000)("Apprendi"), the Supreme Court of the United States reaffirmed the principle that it is permissible for sentencing judges "to exercise discretion -- taking into consideration various factors relating both to offense and offender -- in imposing judgment within the range prescribed by statute." 530 U.S. at 481. The SupremeCourt of the United States cautioned, however, that the Constitution of the United States of America limits this discretion and that the Sixth Amendment to the Constitution requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court elaborated on its holding in Apprendi, stating that the "statutory maximum for Apprendi...
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