United States v. Lorenzo Mendez ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30007
Plaintiff-Appellee, D.C. No.
1:18-cr-02037-SMJ-1
v.
LORENZO ELIAS MENDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted December 6, 2021
Seattle, Washington
Before: McKEOWN, CHRISTEN, and MILLER, Circuit Judges.
Lorenzo Mendez appeals his jury conviction and sentence for attempting to
“use[]” a minor “to engage in . . . sexually explicit conduct for the purpose of
producing any visual depiction of such conduct,” in violation of 18 U.S.C. § 2251(a),
(e). We have jurisdiction under 28 U.S.C. § 1291. We affirm. Mendez’s challenge
to the sufficiency of the evidence under § 2251(a), (e) is addressed in an opinion
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
filed concurrently with this memorandum disposition. Because the parties are
familiar with the facts of this case, we need not recite them here.
The district court did not err by failing to sua sponte excuse Juror No. 8, who
worked as a pediatric nurse. Mendez’s counsel did not challenge the juror for cause,
so we review the juror bias claim for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 62 F.3d 1180, 1187–88, 1192 (9th Cir. 1995). Mendez has not
shown that “the evidence of partiality before the district court was so indicative of
impermissible juror bias that the court was obliged to strike [the juror], even though
neither counsel made the request.” United States v. Mitchell, 568 F.3d 1147, 1151
(9th Cir. 2009). Although the juror initially expressed some discomfort with the
facts of the case, she ultimately “commit[ted] to lay aside those feelings and reach a
verdict based on the evidence presented and the court’s instructions.” Image Tech.
Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1220 (9th Cir. 1997). The court
had no obligation to strike the juror sua sponte.
The change in language between the indictment and jury instructions did not
amount to an unconstitutional “constructive amendment.” Mendez did not raise his
constructive amendment claim in the district court, so we review for plain error.
United States v. Ward, 747 F.3d 1184, 1188 (9th Cir. 2014). Because Mendez was
indicted for an attempt crime, the government did not need to show that the videos
were “mailed or actually transported,” so the variation in jury instructions omitting
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that requirement “does not alter the behavior for which the defendant can be
convicted.” United States v. Garcia-Paz, 282 F.3d 1212, 1216 (9th Cir. 2002).
The district court did not err by applying a five-level sentencing enhancement,
finding that “the defendant engaged in a pattern of activity involving prohibited
sexual conduct.” U.S.S.G. § 4B1.5(b). We review de novo the district court’s
interpretation of the sentencing guidelines, and the underlying factual findings are
reviewed for clear error. United States v. Riley, 335 F.3d 919, 925 (9th Cir. 2003).
Mendez used wireless Wi-Fi cameras with as little as 45 minutes of battery life,
which required him to change the cameras and their batteries often. And agents
discovered “several different cameras” that looked like they had been positioned in
the eye of the stuffed animal. The repeated acts of replacing the cameras and their
batteries to capture new footage suffices to show the “pattern of activity involving
prohibited sexual conduct” required for a sentencing enhancement under U.S.S.G.
§ 4B1.5.
Nor did the district court err in applying a two-level enhancement under
U.S.S.G. § 2G2.1(b)(5), which applies “[i]f the defendant was a parent, relative, or
legal guardian of the minor involved in the offense, or if the minor was otherwise in
the custody, care, or supervisory control of the defendant . . . .” Even if Mendez was
no longer in a relationship with the victim’s mother, the victim lived in Mendez’s
home in a family-like structure with her mother, siblings, and Mendez’s children.
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Mendez was a father-like figure who exercised the functions and responsibilities of
a parent or guardian.
The district court did not commit procedural error in imposing a sentence of
240 months, and the sentence was not substantively unreasonable. The record
reflects that the court considered Mendez’s argument that the court should exercise
its discretion to depart from the sentencing guidelines, consistent with Kimbrough v.
United States, 552 U.S. 85 (2007). The district court expressly considered each of
the factors under 18 U.S.C. § 3553(a) and imposed a below-Guidelines sentence.
See United States v. Ayala-Nicanor, 659 F.3d 744, 752 (9th Cir. 2011). Reviewing
the record, we are not left with “a definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it reached upon weighing the
relevant factors.” United States v. Edwards, 595 F.3d 1004, 1015 (9th Cir. 2010).
AFFIRMED.
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