United States v. Platero

• Decision Date: 06 May 2021
• Docket Number: No. 19-2193,19-2193
• Citation: 996 F.3d 1060
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Paddy PLATERO, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

996 F.3d 1060

UNITED STATES of America, Plaintiff - Appellee,

v.Paddy PLATERO, Defendant - Appellant.

No. 19-2193

United States Court of Appeals, Tenth Circuit.

FILED May 6, 2021

Mallory Gagan, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Appellant.

Nicholas J. Marshall, Assistant United States Attorney (C. Paige Messec, Assistant United States Attorney, John C. Anderson, United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Appellee.

Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Paddy Platero pleaded guilty to a charge of "[a]busive sexual contact" with a child under 12 in Indian country. 18 U.S.C. § 2244 ; see id. § 1153 (offenses in Indian country); id. § 2246(3) (definition of sexual contact ). In computing Defendant's guideline sentencing range, the United States District Court for the District of New Mexico increased his base offense level on the ground that "the offense involved conduct described in 18 U.S.C. § 2241(a) or (b)." USSG § 2A3.4(a)(1).¹ Defendant reads the guideline as requiring a violation of § 2241(a) or (b). Section 2241, however, defines the offense of aggravated sexual abuse, not the lesser offense of abusive sexual contact of which Defendant was convicted. Defendant therefore appeals his sentence, contending that his base offense level should not have been increased.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We reject Defendant's reading of § 2A3.4(a)(1). In context, the only reasonable interpretation of the guideline is that the reference to "conduct described in 18 U.S.C. § 2241(a) or (b)" is a reference to the conduct described in § 2241 that distinguishes aggravated sexual abuse, which is governed by that section, from sexual abuse in general, which is governed by § 2242. (We will refer to the conduct that distinguishes one form of sexual abuse from another as the "means" by which the sexual abuse is committed.) Defendant's interpretation of USSG § 2A3.4(a)(1) must be avoided because it would eliminate any possible application of the provision, rendering it useless; and our interpretation finds support in both the history of § 2A3.4(a)(1) and the statutory scheme, which sets penalties for the various types of abusive sexual contact set forth in § 2244 by reference to the conduct that distinguishes from one another the various types of sexual abuse prohibited by §§ 2241, 2242, and 2243 —that is, by reference to the various means employed to commit sexual abuse.

I. BACKGROUND

On December 22, 2014, Defendant was helping to watch two step-granddaughters—Jane Doe (age 11) and L.D. (13)—at his wife's home in New Mexico. While Jane Doe was sitting in a chair in the living room, Defendant grabbed her feet and used them to rub his erect penis through his clothes. Jane Doe videoed this event on her phone, during which she can be heard to say "stop, stop, stop." R., Vol. 3 at 202.

Jane Doe and L.D. described the incident to their mother, who reported it to police. Defendant was indicted on one count of knowingly engaging in and causing sexual contact with a child under 12. He pleaded guilty to the charge.

The presentence investigation report (PSR) prepared by the probation office calculated Defendant's guideline sentencing range using USSG § 2A3.4. It set the base offense level at 20 under § 2A3.4(a)(1) because "force was involved in the offense." R., Vol. 3 at 197. The PSR explained, "The offense involved the defendant grabbing Jane Doe's legs and then feet and forcibly rubbing her feet against his penis," and "The video shows him pulling and manipulating her legs and feet." Id. After applying various adjustments to the base offense level, the PSR assigned Defendant a total offense level of 28. Based on this offense level and Defendant's criminal history, the guideline imprisonment range was 78 to 97 months.

At the sentencing hearing the district court accepted the PSR's factual findings and its calculation of the guideline range. Defendant did not object. The court imposed a sentence of 97 months in prison.

II. DISCUSSION

Defendant argues that the district court committed reversible error by misapplying USSG § 2A3.4(a)(1) at sentencing. "Because [Defendant] did not object in the district court, we review his argument under the plain-error standard." United States v. Ramon , 958 F.3d 919, 920 (10th Cir. 2020). We can reverse under that standard only if we determine that there is "(1) an error, (2) that is plain, which means clear or obvious under current law, ... (3) that affects substantial rights," and (4) that "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 921 (internal quotation marks omitted). As we proceed to explain, we disagree with Defendant that the district court erred, and we therefore affirm his sentence without reaching the other three elements of the plain-error test.

We begin by describing the statutory scheme under which this prosecution arose. Chapter 109A of the federal criminal code is entitled "Sexual Abuse." Three sections— 18 U.S.C. §§ 2241, 2242, and 2243 —set forth sexual-abuse offenses. Each requires engaging in a "sexual act"² or attempting or intending to do so. Id. They differ in other elements—namely, the means employed to accomplish the sexual act. For example, the first section of the chapter states:

§ 2241. Aggravated sexual abuse

(a) BY FORCE OR THREAT .—Whoever ... knowingly causes another person to engage in a sexual act—

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

(b) BY OTHER MEANS .—Whoever ... knowingly—

(1) renders another person unconscious and thereby engages in a sexual act with that other person; or

(2) administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby––

(A) substantially impairs the ability of that other person to appraise or control conduct; and

(B) engages in a sexual act with that other person;

or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

18 U.S.C. § 2241 (italics added). Section 2241(c) prohibits engaging in a sexual act with a child under the age of 12 or (if the offense would otherwise have violated § 2241(a) or (b) ) with a child between the ages of 12 and 16. Similarly, the lesser offense of sexual abuse is committed by causing another person to engage in a sexual act through a less serious threat or by engaging in a sexual act with an already impaired person. See id. § 2242.³ And sexual abuse of a minor or a ward includes engaging in a sexual act with a child between the ages of 12 and 16, see id. § 2243(a), and engaging in a sexual act with someone in custody, see id. § 2243(b).⁴

Defendant's crime was a violation of § 2244, entitled "Abusive sexual contact," which is committed by engaging in or causing nonconsensual "sexual contact"⁵ with or by another person. The severity of the penalty depends on what the offense would have been "had the sexual contact been a sexual act." Id. § 2244. For example, if the offense would have violated § 2241(a) or (b) "had the sexual contact been a sexual act," the offender could be sentenced to up to 10 years in prison, id. § 2244(a)(1); if the offense would have violated § 2242, the maximum sentence is three years’ imprisonment, see id. § 2244(a)(2); and if the offense would have violated § 2243(a) or (b), the maximum sentence is two years’ imprisonment, see id. § 2244(a)(3)–(4). Defendant was convicted of a violation of § 2244(a)(5), which sets a maximum sentence of life if the offense would have violated § 2241(c) (engaging in a sexual act with a child under the age of 12).

The applicable guideline for convictions under §§ 2241 and 2242 is USSG § 2A3.1 ; the applicable guidelines for § 2243(a) and (b) are §§ 2A3.2 and 2A3.3 respectively; and the applicable guideline for Defendant's conviction under § 2244 is § 2A3.4, entitled, "Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact." See USSG App. A at 569. Guideline § 2A3.4, which sets the offense levels for abusive sexual contact, mimics 18 U.S.C. § 2244, which sets the maximum penalties for abusive sexual contact, by cross-referencing the sexual-abuse statutes in the Criminal Code. The relevant part of the guideline states:

(a) Base Offense Level:

(1) 20 , if the offense involved conduct described in 18 U.S.C. § 2241(a) or (b) ;

(2) 16 , if the offense involved conduct described in 18 U.S.C. § 2242 ; or

(3) 12 , otherwise.

(b) Specific Offense Characteristics

(1) If the victim had not attained the age of twelve years, increase by 4 levels; but if the resulting offense level is less than 22 , increase to level 22 .

(2) If the base offense level is determined under subsection (a)(1) or (2), and the victim had attained the age of twelve years but had not attained the age of sixteen years, increase by levels.

...

(c) Cross References

(1) If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242 ), apply [USSG] § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

§ 2A3.4 (emphasis added). Application Note 2 to the guideline explains that the meaning of the phrase conduct described in 18 U.S.C. § 2241(a) or (b) in § 2A3.4(a)(1) is simply the means required for sexual abuse to be punishable by § 2241(a) or (b). The note, tracking the language of § 2241(a) and (b), states:

For purposes of subsection (a)(1), "conduct described in 18 U.S.C. § 2241(a) or (b) " is engaging in, or causing sexual contact with, or by

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