United States v. Jose Gonzalez ( 2018 )


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  •                                                                    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 16-4073
    __________
    UNITED STATES OF AMERICA
    v.
    JOSE GONZALEZ,
    Appellant
    __________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 2-14-cr-00448-001)
    District Judge: Honorable John R. Padova
    Submitted Under Third Circuit LAR 34.1(a)
    September 12, 2017
    BEFORE: CHAGARES, JORDAN, and NYGAARD, Circuit Judges
    (Filed: May 24, 2018)
    __________
    OPINION *
    __________
    NYGAARD, Circuit Judge.
    Appellant Jose Gonzalez pleaded guilty to possessing and manufacturing child
    pornography. The District Court sentenced him to 420-months’ imprisonment, a
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    sentencing that falls within the applicable guidelines range. He now appeals, arguing that
    the District Court erred by failing to group his two manufacturing counts. We will
    affirm.
    I.
    This appeal involves issues which relate solely to Gonzalez’ sentence, so we will
    provide just a cursory outline of the background facts. Gonzalez was arrested after
    discussing with undercover police officers on the internet sexual acts he undertook with a
    child in his care. After executing a search warrant and seizing his cell phone and other
    electronic devices 1, Gonzalez confessed to the sexual abuse and to photographing this
    molestation. He also confessed to distributing these photographs over the internet.
    His pre-sentence report divided Gonzalez’ manufacturing crimes into two separate
    groups: Group I for the first photograph Gonzalez manufactured of the child; and Group
    II for the photograph he manufactured of the actual sexual abuse. 2 The base offense level
    for Group I was pegged at 32. Pursuant to USSG § 2G2.1(b)(1)(A), an additional four
    levels were added because the victim was two years old at the time of the offense. The
    1
    A forensic examination of Gonzalez’ electronic devices revealed more than 19,000
    images of child pornography, which Gonzalez traded over the internet; photographs
    Gonzalez took of the child while he sexually abused her, naked photographs of Gonzalez
    himself, and thousands of email messages to others in which Gonzalez detailed his
    interest in sexually abusing the child in his care.
    2
    Section 3D1.2 of the Sentencing Guidelines provides, in pertinent part, that:
    All counts involving substantially the same harm shall be grouped together into a single
    Group. Counts involve substantially the same harm within the meaning of this rule ... (d)
    [w]hen the offense level is determined largely on the basis of the total amount of harm or
    loss, ... or if the offense behavior is ongoing or continuous in nature and the offense
    guideline is written to cover such behavior. U.S.S.G. § 3D1.2(d).
    2
    base offense level was further augmented by two more levels because the offense
    involved the committing of a sexual act; by two more levels because the offense involved
    distribution, and by two levels because the victim was under Gonzalez’ care and
    supervision. These increases resulted in a final base offense level of 42. The offenses in
    Group II, which involved photographs of Gonzalez sexually abusing the child, received
    the same base offense level—42.
    At sentencing, Gonzalez objected to the way the PSR grouped his crimes but the
    District Court denied his objection. The Court then determined that Gonzalez’ offense
    level was a 42 and that his advisory guidelines range was 360-months to life
    imprisonment. After considering mitigation witnesses, and denying Gonzalez’ request
    for a variance, the District Court sentenced him to 420-months’ imprisonment, which was
    within the guidelines rage. Gonzalez timely appealed his sentence. On appeal, Gonzalez
    argues that the District Court erred by treating his two manufacturing counts as two
    distinct groups of conduct, instead of grouping them pursuant to U.S.S.G. § 3D1.2.
    II.
    A.
    Gonzalez and the Government disagree as to the applicable appellate standard of
    review. We recently explained that ““we review the District Court's interpretation of the
    Sentencing Guidelines de novo,” its “findings of fact for clear error [,]” and its
    “application of the Guidelines to facts for abuse of discretion.” United States v. Metro,
    
    882 F.3d 431
    , 437 (3d Cir. 2018) (quoting United States v. Kluger, 
    722 F.3d 549
    , 555 (3d
    Cir. 2013) (citations omitted)). The federal sentencing guidelines are to be understood
    3
    according to their “plain and unambiguous language[.]” 
    Kluger, 722 F.3d at 556
    (quoting
    United States v. Wong, 
    3 F.3d 667
    , 670 (3d Cir. 1993)). We also treat commentary that
    interprets or explains a specific guideline to be “authoritative unless it violates the
    Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
    that guideline.” Stinson v. United States, 
    508 U.S. 36
    , 38 (1993).
    However, this appeal presents a somewhat more nuanced issue. Here, Gonzalez
    argues that the District Court erred by not determining that his manufacturing of child
    pornography offenses were part of a common scheme or plan that should have been
    grouped together under U.S.S.G. § 3D1.2. Because such a determination is essentially
    factual, we review only for clear error. United States v. Griswold, 
    57 F.3d 291
    (3d Cir.
    1995) (citations omitted). And, when reviewing the appropriateness of a grouping, we
    afford substantial deference to a district court. 
    Id. Applying this
    highly deferential
    standard, we are satisfied that the District Court did not clearly err by refusing to group
    Gonzalez’ offenses for sentencing purposes.
    B.
    Gonzalez argues that the District Court mistakenly separated his two
    manufacturing offenses because his crimes involved the same victim and are connected
    by a common objective. He points to U.S.S.G. § 3D1.2(b) which states that counts which
    involve the “same victim and two or more acts or transactions connected by a common
    scheme or plan” are to be grouped together.
    An application note for U.S.S.G. § 3D1.2 further explains that offenses should be
    grouped together for sentencing when they are “part of a single course of conduct with a
    4
    single criminal objective and represent essentially one composite harm to the same
    victim.” U.S.S.G. § 3D1.2, comment., n. 4. The note goes on to provide a specific
    example: “two counts of mail fraud and one count of wire fraud, each in furtherance of a
    single fraudulent scheme . . . even if the mailings and telephone call occurred on different
    days” should be grouped. 
    Id. Of particular
    importance to this appeal, the application
    note additionally instructs that “two counts of rape for raping the same person on
    different days . . . are not to be grouped together.” 
    Id. (emphasis in
    original). See also
    
    Griswold, 57 F.3d at 296
    (“The Sentencing Commission, in its wisdom, saw fit to decide
    that multiple counts of rape . . . not be grouped together when dealing with the same
    victim.”).
    Here, the District Court correctly concluded that Gonzalez’ offenses constitute two
    separate instances of producing child pornography. The first offense involved a
    pornographic photograph of the young child. The second offense was a pornographic
    image involving the child as she was sleeping in the same bed as Gonzalez which he
    manufactured while he was communicating with the undercover detective. The
    production of each image subjected the child to explicit sexual assault, causing her to
    suffer separate and distinct harms. See, e.g., United States v. Wise, 
    447 F.3d 440
    , 446
    (5th Cir. 2006). Indeed, as one court has explained, “two episodes of sexual misconduct
    that society has legitimately criminalized occurring with the same person on different
    days are not ‘substantially the same harm’ for purposes of section 3D1.2.” United States
    v. Vasquez, 
    389 F.3d 65
    , 77 (2d Cir. 2004).
    5
    We reject Gonzalez’ argument that his offenses were connected to a common
    criminal purpose: the sharing or trading of images of child pornography with other
    troubled individuals. The record reveals that Gonzalez had a large collection of child
    pornography, and he was sharing and trading these images on the internet since 2013.
    This was about a year before he manufactured pornographic images of the child in his
    care. We see a discernible difference between the sharing or trading of images
    previously manufactured images of child pornography and Gonzalez’ manufacturing
    images of the child. We agree with the Government that there is no commonality
    between the receipt, possession, and distribution of images of child pornography and the
    sexual exploitation of the child a year later.
    The District Court committed no error, much less a clear one, by refusing to group
    these two offenses. We will affirm Gonzalez’ sentence.
    6