United States v. Lucero

Court Case Details
Court Case Opinion

FILED

United States Court of Appeals

Tenth Circuit

PUBLISH


May 2, 2014

UNITED STATES COURT OF APPEALS


Elisabeth A. Shumaker

TENTH CIRCUIT

Clerk of Court


UNITED STATES OF AMERICA,

Plaintiff

-

Appellee,


v.

LAWRENCE L. LUCERO,

No. 13-2084

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

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minor.”

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).

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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.

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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

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limitation.

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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Referenced Cases