United States District Court, D. New Mexico
P. Martinez United States Attorney Sarah Jane Mease Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff
Van Butcher Assistant Federal Public Defender Federal Public
Defender's Office Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
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).
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 and made a
statement to law enforcement admitting that he believed he
was meeting a minor child for the purpose of engaging in
Plea Agreement ¶ 8, at 3-4.
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.
Indictment and Plea.
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.
Presentence Investigation Report.
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.
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 ¶ ...