United States v. Lucero , 747 F.3d 1242 ( 2014 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 2, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-2084
LAWRENCE L. LUCERO,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:12-CR-01662-WJ-1)
Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public
Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for
Appellant.
Dean Tuckman, Assistant United States Attorney (Steven C. Yarbrough, Acting United
States Attorney, and James R.W. Braun, Assistant United States Attorney, on the brief),
Office of the United States Attorney for the District of New Mexico, Albuquerque, New
Mexico, appearing for Appellee.
Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
Lawrence Lucero pled guilty to three counts of receipt of child pornography in
violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256, and two counts of possession
of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256.
At sentencing, the district court increased Mr. Lucero’s offense level by five based
on § 2G2.2(b)(5) of the United States Sentencing Guidelines (the “Guidelines”) for
having engaged in a pattern of activity involving the sexual abuse or exploitation of a
minor. Mr. Lucero triggered this increase by admitting to sexually touching two young
nieces in the 1960s and 1970s. He was sentenced to 78 months in prison—the lower
limit of his Guidelines range—followed by 15 years supervised release.
Mr. Lucero now appeals his sentence as both procedurally and substantively
unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
In March 2012, Mr. Lucero worked as a social worker at the Community Based
Outpatient Clinic, which provides social services to military veterans for the Veterans
Administration (the “VA”). Mr. Lucero had offices in both Espanola and Las Vegas,
New Mexico.
On March 28, 2012, the VA’s Office of the Inspector General (the “OIG”)
conducted a random search of the VA’s computer network to verify that employees were
adhering to the VA’s computer policies. The search revealed that one of Mr. Lucero’s
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computers had accessed numerous questionable websites that appeared to contain child
pornography.
On April 4, 2012, the OIG searched the computers in both of Mr. Lucero’s offices.
The OIG uncovered 91 sexually explicit images of pre-pubescent females, as well as
several stories (written by unknown persons) describing incestuous acts with children.
On May 2, 2012, an OIG agent interrogated Mr. Lucero regarding these
discoveries, and Mr. Lucero submitted to a polygraph examination. Mr. Lucero admitted
he used his work computer to view and save child pornography from various websites,
and he collected the stories about incest because he found them “stimulating.” He also
admitted to viewing child pornography for 20 years. Finally, Mr. Lucero told the OIG
agent he had sexually molested two of his nieces in the late 1960s and early 1970s while
in his twenties—between 35 and 40 years before the VA uncovered child pornography on
his office computers.
According to Mr. Lucero, he “had no further incidents of sexual impropriety with
minors following the incidents during the 1970’s [sic].” Aplt. Br. at 5. Mr. Lucero
received counseling in the 1980s when his family found out he abused his nieces. After
this treatment, he “pursued a long career in social work.” Id.B. Procedural Background
1. Guilty Plea and Presentence Report
On July 10, 2012, a federal grand jury in the District of New Mexico indicted Mr.
Lucero on three counts of receipt of visual depictions of minors engaged in sexually
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explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256, and two
counts of possession of matter containing visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256.
On December 4, 2012, Mr. Lucero pled guilty to the indictment without a plea
agreement.
On February 14, 2013, a probation officer issued a presentence report (“PSR”)
calculating Mr. Lucero’s Guidelines sentencing range at 78 to 97 months in prison. The
PSR set Mr. Lucero’s base level at 22 pursuant to U.S.S.G. § 2G2.2, which states the
base level for child pornography offenses, including Mr. Lucero’s. From there, the PSR
calculated Mr. Lucero’s total offense level based on the following:
 A two-level decrease because his offense was limited to receipt and not
distribution of child pornography, § 2G2.2(b)(1);
 A two-level increase because the material uncovered on his computers
depicted pre-pubescent minors, § 2G2.2(b)(2);
 A five-level increase because he engaged in a “pattern of activity”
involving the sexual abuse of minors, including molesting his nieces,
§ 2G2.2(b)(5);
 A two-level increase because his offense involved the use of a
computer, § 2G2.2(b)(6);
 A two-level increase based on the number of images involved in the
offense, § 2G2.2(b)(7)(A); and
 A three-level decrease for acceptance of responsibility, § 3E1.1.
Mr. Lucero’s total offense level was 28, which, when paired with his criminal history
category of I (based on no prior criminal offenses), yielded a Guidelines range of 78 to 92
months in prison.
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On March 22, 2013, Mr. Lucero filed a sentencing memorandum objecting to the
PSR’s application of § 2G2.2(b)(5), which calls for a five-level increase “[i]f the
defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a
minor.”1 The guideline defines “pattern of activity” as “any combination of two or more
separate instances of the sexual abuse or sexual exploitation of a minor by the
defendant . . . .” U.S.S.G. § 2G2.2(b)(5), cmt. n.1. The PSR applied this enhancement
based on the two separate occasions on which Mr. Lucero admitted to having sexually
touched his minor nieces.
In his memorandum, Mr. Lucero contended this enhancement was based on
conduct that had “nothing to do with the present charges,” and that any pattern of activity
in Mr. Lucero’s conduct “was broken when Mr. Lucero was confronted by his family and
got treatment for his issues [in the 1980s].” Suppl. ROA at 5. As an alternative to
recalculating the Guidelines range, Mr. Lucero requested a variance from the advisory
range to a sentence of 60 months. See 18 U.S.C. § 3553(a).
The U.S. Probation Office prepared an addendum to the PSR addressing Mr.
Lucero’s objections. It noted Mr. Lucero had admitted to sexually touching two different
nieces on two separate occasions, and that there is no time limit for the conduct to
support a “pattern of activity” enhancement under § 2G2.2(b)(5).
1
Mr. Lucero also objected to the two-level increase for use of a computer pursuant
to § 2G2.2(b)(6). The district court overruled that objection, and Mr. Lucero does not
raise it again on appeal.
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2. Sentencing Hearing
On April 4, 2013, the district court held a sentencing hearing at which Mr. Lucero
repeated his objection to the § 2G2.2(b)(5) enhancement.
The district court overruled the objection, concluding the PSR properly applied the
five-level enhancement based on Mr. Lucero’s prior conduct as well as his other relevant
history and characteristics:
Paragraph 42, that’s where the five-level enhancement was applied, and I
spent a significant amount of time during the break really focusing in on
this section and reviewing the arguments [in Mr. Lucero’s sentencing
memorandum]. It involved . . . a five-level enhancement applied on . . .
what the Probation office considered a . . . pattern, and part of the objection
was that it happened, you know, more than 40 years ago. But it also
involved two children, and I gave this a lot of thought . . . in taking into
account the history and characteristics of the defendant [who had an
education and career in social work] . . . .
So anyone with a Master’s degree in social work . . . certainly would
understand, you know, how this type of conduct, you know, victimizes
children. . . .
[T]aking into account your history and characteristics and really looking at
this closely, I find that the probation officer in Paragraph 42 correctly
applied a five-level enhancement.
ROA, Vol. III at 33-34.
After considering the sentencing factors listed in 18 U.S.C. § 3553(a), the district
court also denied Mr. Lucero’s request for a variance, concluding that a Guidelines-range
sentence was appropriate based on Mr. Lucero’s educational and professional
background; the severity of his offenses and the impact on the victims of child
pornography; the need to avoid unwarranted sentencing disparities; and policy
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considerations. Id. at 35-37. The district court judge concluded, “taking into account the
nature and circumstances of the offenses and the history and characteristics of the
defendant, I will find that a sentence that is sufficient but not greater than necessary to
satisfy the goals of sentencing is a sentence on the low end of the guidelines of 78
months . . . .” Id. at 36-37.
In accordance with Mr. Lucero’s calculated Guidelines range, the district court
imposed a sentence of 78 months in prison followed by 15 years supervised release.
II. DISCUSSION
Mr. Lucero argues his sentence is both procedurally and substantively
unreasonable. Specifically, he contends (1) the district court erred procedurally by
applying the five-level enhancement under U.S.S.G. § 2G2.2(b)(5) based on conduct that
occurred more than 35 years ago. He also argues (2) the district court should have
granted him a downward variance based on the age of his pattern-of-activity conduct as
well as his personal characteristics.
When a defendant has properly preserved his or her objection to a sentence, we
review it “under an abuse of discretion standard for procedural and substantive
reasonableness.” United States v. Gordon, 710 F.3d 1124, 1160 (10th Cir. 2013)
(quotations omitted); see also Gall v. United States, 552 U.S. 38, 51 (2007). We “must
first ensure that the district court committed no significant procedural error . . . .” Gall,
552 U.S. at 51. If the district court’s decision is “procedurally sound,” we “then consider
the substantive reasonableness of the sentence imposed.” Id.-7-
A. Procedural Unreasonableness
Mr. Lucero contends his sentence is procedurally unreasonable because the district
court should not have applied the pattern-of-activity enhancement under U.S.S.G.
§ 2G2.2(b)(5) based on remote-in-time conduct.
1. Legal Framework
“In general, a procedural challenge relates to the method by which the sentence is
calculated.” United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011) (quotations
omitted). The Supreme Court has identified specific procedural errors a sentencing court
can commit, including incorrectly calculating or failing to calculate a Guidelines
sentence; treating the Guidelines as mandatory rather than discretionary; failing to
consider the statutory sentencing factors from 18 U.S.C. § 3553(a); relying on clearly
erroneous facts; or failing to adequately explain the sentence. Gall, 552 U.S. at 51; see
also United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).
In this instance, Mr. Lucero contends the district court improperly applied the five-
level pattern of activity enhancement from § 2G2.2(b)(5). His challenge therefore
requires us to decide “whether the district court incorrectly calculated . . . the Guidelines
sentence . . . .” Huckins, 529 F.3d at 1317.
2. Standard of Review
We ordinarily review procedural aspects of a district court’s sentencing decision
for abuse of discretion. See United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
Under this standard, “we review de novo the district court’s legal conclusions regarding
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the guidelines and its factual findings for clear error.” Id.“If, however, [Mr. Lucero] did not preserve the procedural challenge below, we
review only for plain error.” Id. Under this standard, we “will only vacate the sentence
if: (1) there is error; (2) that is plain; (3) that affects substantial rights, or in other words,
affects the outcome of the proceeding; and (4) substantially affects the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Chavez, 723 F.3d 1226,
1232 (10th Cir. 2013).
The parties in this case have disputed the applicable standard of review for Mr.
Lucero’s procedural unreasonableness claim. At the district court, Mr. Lucero objected
to the PSR’s application of the five-level “pattern of activity” enhancement because
“[t]he 45 year old allegations of actual contact have nothing to do with the present
charges,” and “[i]f there was a pattern, it was 45 years ago.” Suppl. ROA at 5. The
Government argues this objection did not suffice to raise a procedural unreasonableness
claim for appeal because Mr. Lucero
did not make the argument he now makes on appeal, that this Court should
read into the guidelines a time limit and a requirement that the prior
conduct be related to the charged conduct. Rather, he appeared to be asking
the court not to apply the enhancement out of a sense of fairness or as an
exercise of discretion in applying the factors contained in 18 U.S.C.
§ 3553(a).
Aplee. Br. at 10 n.9. In addition, the Government points out, Mr. Lucero did not object
orally at the sentencing hearing “to the manner in which the district court addressed his
objection.” Id. at 10-11 n.9. Because the nature of Mr. Lucero’s objection to the
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§ 2G2.2(b)(5) enhancement has changed, the Government contends, his objection was not
properly preserved and can be reviewed only for plain error. See Chavez, 723 F.3d at
1232.
At oral argument, Mr. Lucero appears to have conceded that his procedural
unreasonableness claim is limited to plain error review. See Oral Arg. Recording (3:03-
3:35). We need not decide this issue, however, because Mr. Lucero’s claim fails even
under an abuse-of-discretion standard, as we now explain.
3. Analysis
Mr. Lucero argues his sentence is procedurally unreasonable because the district
court erred in applying the § 2G2.2(b)(5) pattern-of-activity enhancement. He contends
“that a reasonable time threshold should govern the applicability of the ‘pattern’
enhancement, and that the enhancement should also depend on some contextual
relationship with the offense of conviction.” Aplt. Br. at 10. Whether § 2G2.2(b)(5)
contains a temporal or contextual limitation is a matter of first impression in this circuit.
Based on the plain text of the Guideline and the teaching of other circuits, we conclude
§ 2G2.2(b)(5) may apply regardless of when the underlying pattern of activity occurred.
The district court therefore did not abuse its discretion by applying the enhancement in
Mr. Lucero’s case.
a. Plain text of U.S.S.G. § 2G2.2(b)(5)
“We interpret the Sentencing Guidelines as if they were a statute or court rule.”
United States v. Plotts, 347 F.3d 873, 876 (10th Cir. 2003) (quotations omitted).
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Accordingly, “[a]s with all statutory interpretation, we begin our analysis with the
language of [the Guideline], giving the words their ordinary meaning.” Id. (quotations
omitted). We also look to “the interpretative and explanatory commentary to the
guideline provided by the Sentencing Commission,” which is “authoritative unless it
violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.” United States v. Cornelio-Pena, 435 F.3d 1279, 1283 (10th
Cir. 2006) (quotations omitted). When the language of the guideline “is clear and
unambiguous, it must be followed except in the most extraordinary situation where the
language leads to an absurd result contrary to clear legislative intent.” Plotts, 347 F.3d at
876.
U.S.S.G. § 2G2.2(b)(5) provides for a five-level increase in the base offense level
for child pornography offenses “[i]f the defendant engaged in a pattern of activity
involving the sexual abuse of exploitation of a minor . . . .” Id.
As the guideline’s commentary explains,
“[p]attern of activity involving the sexual abuse or exploitation of a minor”
means any combination of two or more separate instances of the sexual
abuse or sexual exploitation of a minor by the defendant, whether or not the
abuse or exploitation (A) occurred during the course of the offense; (B)
involved the same minor; or (C) resulted in a conviction for such conduct.
U.S.S.G. § 2G2.2(b)(5), cmt. n.1 (emphasis added).
“Sexual abuse or exploitation of a minor” includes molestation and other physical
abuse but “does not include possession, accessing with intent to view, receipt, or
trafficking in material relating to the sexual abuse or exploitation of a minor.” Id. An
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additional upward departure “may be warranted if the defendant received an
enhancement under subsection (b)(5) but that enhancement does not adequately reflect
the seriousness of the sexual abuse or exploitation involved.” Id. cmt. n.7.
The Guidelines also state that “an upward departure may be warranted” if
§ 2G2.2(b)(5) does not apply but “the defendant engaged in the sexual abuse or
exploitation of a minor at any time . . . .” Id. cmt. n.7 (emphasis added).
We conclude the plain text of § 2G2.2(b)(5) and its accompanying commentary
unambiguously authorize sentencing courts to apply the pattern-of-activity enhancement
regardless of when the conduct underlying it occurred.
The guideline and the commentary do not include any temporal limitations. On
the contrary, § 2G2.2(b)(5) plainly states that the enhancement applies “[i]f the defendant
engaged in a pattern of activity involving the sexual abuse or exploitation of a minor . . .
.” Id. It does not qualify this condition with an additional time-based or contextual
requirement.
Furthermore, the commentary to § 2G2.2(b)(5) makes clear that the pattern of
activity need not be contextually related to the offense for which the defendant is being
sentenced because it need not have occurred at the same time as the offense of conviction
or “involved the same minor.” Id. cmt. n.1.
In addition, the Guidelines commentary provides that “an upward departure may
be warranted” even in cases where § 2G2.2(b)(5) does not apply but the defendant
nevertheless “engaged in the sexual abuse or exploitation of a minor at any time . . . .”
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Id. cmt. n.7 (emphasis added). This provision suggests an upward departure for abuse is
appropriate regardless of when the abuse happened. It naturally follows that the
corresponding enhancement for a pattern of sexual abuse would also apply regardless of
when it occurred, particularly because the commentary to § 2G2.2(b)(5) specifies that the
pattern of abuse need not be related to the offense of conviction. Id. cmt. n.1.
Mr. Lucero admits § 2G2.2(b)(5) and its accompanying commentary do not
contain temporal limitations, but he nonetheless encourages us to read a time limit into
§ 2G2.2(b)(5) because (1) the guideline does not explicitly instruct sentencing courts to
apply the enhancement regardless of when the underlying conduct occurred; and (2) other
provisions in the Guidelines contain temporal limitations. Both arguments are
unavailing.
First, Mr. Lucero is correct that the guideline does not specify that the
§ 2G2.2(b)(5) enhancement applies “if the pattern of activity was engaged in ‘at any time
in the defendant’s life’ or ‘notwithstanding the time of engagement in the pattern of
activity,’ or even ‘regardless of whether the pattern of activity was related in any way to
the offense of conviction.’” Aplt. Br. at 11. Mr. Lucero contends the guideline’s silence
on these points leaves us free to hold that the conduct supporting a pattern-of-activity
enhancement must be related or temporally close to the offense of conviction. But we
cannot and will not read a temporal limitation into the guideline when the Sentencing
Commission has not done so.
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Second, as Mr. Lucero correctly points out, other provisions in the Guidelines
contain temporal limitations on conduct that can be used to support an enhancement. For
instance, the criminal history guidelines provide that old convictions—more than 15 or
10 years depending on the resulting sentence—do not add criminal history points. See
U.S.S.G. § 4A1.1(a)-(c), & cmt. nn.1-3. Old convictions also do not count for purposes of
the “career offender” classification, § 4B1.2(c), or enhancements for offenders with prior
felony convictions illegally re-entering the United States, § 2L1.2(b)(1)(A). Mr. Lucero
contends these provisions demonstrate the Guidelines recognize that prior conduct loses
relevance with the passage of time, and therefore we should recognize decreased
relevance for remote-in-time patterns of activity under § 2G2.2(b)(5) as well.
We disagree. It is a well-settled principle of statutory construction that when
Congress (or, as here, the Sentencing Commission) “includes particular language in one
section of” a statute or Guideline, “it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v.
United States, 508 U.S. 200, 208 (1993) (quotations omitted). The Sentencing
Commission knew how to include a temporal limitation in § 2G2.2(b)(5). Because it did
so in other Guidelines but did not do so here, we can presume this omission was
deliberate.
In short, the plain text of § 2G2.2(b)(5) does not include any age limit on the
conduct that can be used to support a pattern-of-activity enhancement.
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b. Other circuits
Our conclusion and reasoning are consistent with the nine other circuits that have
considered whether § 2G2.2(b)(5) can apply based on a pattern of activity that occurred
far in the past. All have held that § 2G2.2(b)(5) does not contain any temporal
limitation.2 See United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002)
(affirming enhancement based on conduct occurring more than 20 years earlier); United
States v. Reingold, 731 F.3d 204, 223-24 (2d Cir. 2013) (reversing the district court’s
refusal to apply the enhancement based on conduct occurring a few years earlier and
noting that the circuits “have uniformly concluded that no temporal proximity among acts
of sexual abuse or exploitation is required to satisfy the pattern requirement of
§ 2G2.2(b)(5)”); United States v. Olfano, 503 F.3d 240, 243 (3d Cir. 2007) (affirming
enhancement based on conduct occurring 13 and 16 years earlier, and noting that “there
is no temporal nexus necessary to establish a pattern of activity of sexual abuse or
exploitation of a minor”); United States v. Bacon, 646 F.3d 218, 220-21 (5th Cir. 2011)
(per curiam) (affirming enhancement based on conduct occurring 30 years earlier because
“remote-in-time conduct is relevant to § 2G2.2’s ‘pattern of activity’ enhancement”);
United States v. Gawthrop, 310 F.3d 405, 413-14 (6th Cir. 2002) (affirming enhancement
based on conduct occurring 11 years earlier); United States v. Lovaas, 241 F.3d 900, 903-
2
A few of these cases interpreted the predecessor to § 2G2.2(b)(5), then called
§ 2G2.2(b)(4), which used identical language to what is now § 2G2.2(b)(5). See, e.g.,
United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002).
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04 (7th Cir. 2001) (affirming enhancement based on “decades-old” conduct); United
States v. Woodard, 694 F.3d 950, 953-54 (8th Cir. 2012) (affirming enhancement based
on conduct occurring 19 years earlier because Ҥ 2G2.2(b)(5) contains no temporal
limitation”); United States v. Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (affirming
enhancement based on conduct occurring “at least” 35 years earlier because § 2G2.2(b)
“obviously intends to cast a wide net to draw in any conceivable history of sexual abuse
or exploitation of children”); United States v. Turner, 626 F.3d 566, 572-73 (11th Cir.
2010) (affirming enhancement based on conduct occurring at least 20 years earlier).
Notably, these cases generally rely on the plain text of the guideline. See, e.g.,
Woodard, 694 F.3d at 953-54 (“[Section] 2G2.2(b)(5) contains no temporal limitation.”);
Bacon, 646 F.3d at 221 (“[T]he plain language of § 2G2.2(b)(5) and its commentary do
not require that the ‘pattern of activity’ must be temporally close to the offense of
conviction.”); Garner, 490 F.3d at 743 (“The plain language of the Commentary to
§ 2G2.2 eliminates the need for any temporal or factual nexus between the offense of
conviction and any prior act of sexual abuse or exploitation.”); Turner, 626 F.3d at 572-
73 (“Nothing in § 2G2.2(b)(5) or its commentary suggests that the ‘pattern of activity’
must be temporally close to the offense of conviction.”).
We agree with our sibling circuits that nothing in the plain text of § 2G2.2(b)(5)
and its accompanying commentary or its context in the scheme of the Guidelines
indicates the Sentencing Commission intended a temporal limitation to apply to the
pattern-of-activity enhancement. In Mr. Lucero’s case, the only requirements of
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§ 2G2.2(b)(5)—that the defendant engage in a pattern involving two or more separate
instances of sexual abuse of exploitation of a minor, see U.S.S.G. § 2G2.2(b)(5) cmt.
n.1—were satisfied. Thus, the district court did not abuse its discretion by applying the
guideline’s five-level enhancement in Mr. Lucero’s case.
B. Substantive Unreasonableness
Mr. Lucero argues his sentence—78 months in prison followed by 15 years
supervised release—is substantively unreasonable in light of his conduct and personal
characteristics. Mr. Lucero urges that the district court should have granted him a
downward variance, reducing his sentence to 60 months in prison, which is the statutory
mandatory minimum for Mr. Lucero’s charge of receipt of child pornography in violation
of 18 U.S.C. § 2252(a)(4).
1. Legal Framework
After United States v. Booker, 543 U.S. 220 (2005), the Guidelines became
advisory rather than mandatory. See Kimbrough v. United States, 552 U.S. 85, 90-91
(2007); Gall, 552 U.S. at 46. Although a district court “should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range,” it should then
consider the 18 U.S.C. § 3553(a) statutory factors—including the defendant’s personal
history, the nature of the offense, and various policy considerations—“to determine
whether they support the sentence requested by a party.” Gall, 552 U.S. at 49-50. In
evaluating the § 3553(a) factors, a district court judge “may not presume that the
Guidelines range is reasonable. He must make an individualized assessment based on the
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facts presented.” Id. at 50 (citations omitted). Sentencing judges should aim to impose a
sentence “‘sufficient, but not greater than necessary, to comply with the purposes’ of
criminal punishment.” United States v. Martinez-Barragan, 545 F.3d 894, 904 (10th Cir.
2008) (quoting 18 U.S.C. § 3553(a)).
A sentence is substantively unreasonable if, in light of the § 3553(a) factors, it
“exceeds the bounds of permissible choice, given the facts and the applicable law.”
Chavez, 723 F.3d at 1233 (quotations omitted).
2. Standard of Review
As with procedural reasonableness, we “review the substantive reasonableness of
a sentence for abuse of discretion.” Chavez, 723 F.3d at 1233. Under the abuse-of-
discretion standard, we will reverse a sentence if it is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.
2008) (quotations omitted).
Unlike the district court, we presume that a sentence within the properly calculated
Guidelines range is reasonable. See Chavez, 723 F.3d at 1233. The defendant bears the
burden of rebutting this presumption in light of the § 3553(a) factors. Id.
3. Analysis
Mr. Lucero contends his sentence is substantively unreasonable because of (a) the
age of the conduct supporting the five-level pattern-of-activity enhancement and its lack
of connection to the offenses of conviction, as well as (b) his age and personal
characteristics.
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a. Pattern-of-activity enhancement
First, Mr. Lucero argues his sentence is substantively unreasonable because the
district court should not have applied the five-level enhancement for conduct that
occurred more than 35 years ago. He asserts that even if § 2G2.2(b)(5) does not contain a
time limit on the conduct that can support a pattern-of-activity enhancement, courts are
nonetheless free to apply common sense and principles of fairness to vary downward
from the enhancement.
Mr. Lucero points out we have previously held in a different context that a
defendant’s past sexual misconduct loses relevance with time. In United States v.
Dougan, 684 F.3d 1030 (10th Cir. 2012), the defendant pled guilty to robbing a post
office. At sentencing, the district court imposed supervised release conditions of the sort
that would ordinarily apply to sex offenders based on the defendant’s prior convictions—
17 and 33 years earlier—for sexual battery. Id. at 1031. We reversed, noting that
conditions for supervised release must be “reasonably related” to the offense of
conviction, see 18 U.S.C. § 3583(d), and concluding the defendant’s prior convictions
were “too remote in time to be reasonably related to the present offense and to justify
imposition of special sex-offender conditions of release.” Dougan, 684 F.3d at 1037.
Mr. Lucero contends Dougan’s reasoning should apply to this appeal: that
“[a]ncient events lose their relevance to a current sentencing analysis over time,” Aplt.
Br. at 16, and that just as offenses can be too remote to justify special release conditions,
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they can also be too distant to support a pattern-of-activity enhancement under
§ 2G2.2(b)(5), see id.
Dougan is distinguishable, however, because there a statute required the
defendant’s conditions of supervised release to be “reasonably related” to the offense of
conviction. See 18 U.S.C. § 3583(d). As we explained above, § 2G2.2(b)(5) contains no
requirement that the pattern of activity supporting the enhancement be related to the
offense of conviction at all. Therefore, the district court was not required based on
Dougan to vary Mr. Lucero’s sentence downward from the recommended Guidelines
range.
It was, however, permitted to do so. The Government conceded at oral argument
that the remoteness of a pattern of activity in time can be a relevant factor in determining
whether a sentence is “sufficient but not greater than necessary to comply with the
purposes of criminal punishment.” Martinez-Barragan, 545 F.3d at 904 (quotations
omitted); see Kimbrough, 552 U.S. at 101 (acknowledging that courts may depart from
the Guidelines for policy reasons, “including disagreements with the Guidelines”
(quotations omitted)).
Unfortunately for Mr. Lucero, however, he has failed to meet his burden to
overcome the presumption of substantive reasonableness that attaches to his Guidelines-
range sentence on appeal. See Chavez, 723 F.3d at 1233. Mr. Lucero admitted to
sexually touching two of his nieces on two separate occasions, thus satisfying the
requirements of § 2G2.2(b)(5). His nieces were both very young (eight and ten years old)
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when the incidents occurred. We are not convinced that this pattern of conduct—even
though it occurred many years in the past—is not related or relevant to Mr. Lucero’s
offenses of conviction, which include viewing pornographic images of pre-pubescent
girls.
Even if Mr. Lucero were possibly correct that these incidents have diminished
relevance to his current sentencing by virtue of the passage of time, we cannot say that
his 78-month sentence—the lower limit of his Guidelines range—was “arbitrary,
capricious, whimsical, or manifestly unreasonable.” Munoz-Nava, 524 F.3d at 1146(quotations omitted). The district court acted within its discretion when it sentenced Mr.
Lucero to 78 months in prison based in part on the pattern-of-activity enhancement, and
Mr. Lucero has not met his burden to persuade us that this sentence was unreasonable.
See Chavez, 723 F.3d at 1233.
b. Mr. Lucero’s characteristics
Mr. Lucero likewise cannot meet his burden to show that his sentence was
substantively unreasonable in light of his personal characteristics under § 3553(a)(1).
Mr. Lucero argues his sentence should be lower because he “is a 65 year old man with a
distinguished professional and academic career, a supportive family and a desire to
provide care to his elderly mother.” Aplt. Br. at 20.
Mr. Lucero does not contest, however, that the district court properly took into
account the § 3553(a) factors, including Mr. Lucero’s age, education, and circumstances.
The district court concluded, based on its consideration of these factors, that “nothing . . .
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takes [his] case out the heartland of cases” in which a Guidelines-range sentence is
appropriate and serves the goals of sentencing. ROA, Vol. III at 35. Mr. Lucero has
provided no evidence or arguments on appeal to counter this conclusion.
Furthermore, as noted above, Mr. Lucero was sentenced to the low end of his
properly calculated Guidelines range—78 months in prison, or 18 months over the
statutory mandatory minimum of 60 months. See 18 U.S.C. § 2252(a)(4). We cannot say
in these circumstances that Mr. Lucero’s sentence “exceeds the bounds of permissible
choice, given the facts and applicable law.” Chavez, 723 F.3d at 1233 (quotations
omitted).
III. CONCLUSION
For the foregoing reasons, we affirm Mr. Lucero’s sentence as both procedurally
and substantively reasonable.
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