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United States v. Castellon

United States District Court, D. New Mexico

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR CASTELLON, Defendant.

          Damon P. Martinez United States Attorney Sarah Jane Mease Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          John Van Butcher Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Objections to the Amended Presentence Report, filed August 11, 2015 (Doc. 29)(“Objections”). The Court held a hearing on August 12, 2015. The primary issue is whether a 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A) applies, because, when Defendant Victor Castellon exchanged text messages with a law enforcement officer whom he believed to be a twelve-year-old female, Castellon misrepresented his age by saying that he was forty-five years old when he was, in fact, fifty-one years old. The Court concludes that, in this circumstance, the 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A) does not apply. The Court, therefore, will sustain Castellon's objection to the 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(A).

         FACTUAL BACKGROUND

         The Court draws its presentation of the facts from the Defendants' Plea Agreement, filed May 4, 2015 (Doc. 23)(“Plea Agreement”). In the Plea Agreement, Castellon declared to the following facts to be true:

On or about September 17, 2014, the Defendant responded to a Craigslist notice that appeared to be posted by a minor female child. Unbeknownst to the Defendant, the posting was made by an undercover law enforcement agent posing as a child. The initial communication from the Defendant travelled through the internet to the Craigslist servers, which are located outside the state of New Mexico. From on or about September 17, 2014, to on or about September 18, 2014, the Defendant engaged in text message conservations with the “minor, ” utilizing a cellular telephone that was manufactured in China. During these conversations, the Defendant learned that the “minor” was twelve years old. Eventually the Defendant initiated conversation regarding the possibility of having a sexual relationship with the “minor, ” and on September 18, 2014, the Defendant suggested an in-person meeting, in Bernalillo County New Mexico, where he was taken into custody. After his arrest, the Defendant waived his Miranda Rights[1] and made a statement to law enforcement admitting that he believed he was meeting a minor child for the purpose of engaging in sexual activity.

Plea Agreement ¶ 8, at 3-4.

         PROCEDURAL BACKGROUND

         After a federal Grand Jury indicted Castellon on one count of attempted coercion and enticement, he pled guilty. The United States Probation Office (“USPO”) disclosed a PSR, which applied a 2-level enhancement pursuant to U.S.S.G. § 2G1.3(b)(2)(A). Castellon objected to that enhancement, and the USPO responded.

         1. Indictment and Plea.

         On January 5, 2015, a federal Grand Jury indicted Castellon on one count of attempted coercion and enticement “[i]n violation of 18 U.S.C. § 2422(b) and N.M. Stat. Ann. § 30-9-11 (1978).” Indictment at 1, filed January 8, 2015 (Doc. 2). On May 4, 2015, Castellon pled guilty to that charge. See Plea Agreement ¶ 3, at 2. Castellon represents that his plea “is freely and voluntarily made.” Plea Agreement ¶ 24, at 9.

         2. Presentence Investigation Report.

         The United States Probation Office (“USPO”) disclosed Presentence Investigation Report at 1, on July 8, 2015 (“PSR”). Under U.S.S.G. § 2G1.3, the PSR calculates the base offense level for a violation of 18 U.S.C. § 2422(b) to be 28. PSR ¶ 20, at 5. The PSR then applies a 2-level enhancement for specific offense characteristics, because “[t]he defendant exchanged text messages with a presumed 12 year old female and persuaded her to engage in sexual acts including oral and vaginal sex.” PSR ¶ 21, at 6. The PSR next applies an enhancement under U.S.S.G. § 4B1.5, stating that “the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.” PSR ¶ 26, at 6. “Therefore, ” the PSR calculates, “the offense level is 37.” PSR ¶ 26, at 6. The PSR then applied a 2-level downward adjustment under U.S.S.G. § 3E1.1(a) and a 1-level downward adjustment under U.S.S.G. § 3E1.1(b), because Castellon accepted responsibility and timely notified his intention to enter a plea of guilty. See PSR ¶¶ 27-28, at 6. Consequently, the PSR calculated the total offense level to be 34. See PSR ¶ 29, at 6.

         The PSR details Castellon's criminal history, which includes a conviction for “Transportation of Minors; Engaging in Illicit Sexual Conduct in Foreign Places, ” PSR ¶ 32, at 6-7, and calculates a criminal history category of V, see PSR ¶ 35, at 8 (citing U.S.S.G. § 4B1.5). The PSR states that, “[b]ased on a total offense level of 34 and a criminal history category of 5, the guideline imprisonment range is 235 months to 293 months.” PSR ¶ ...


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