                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 28 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        Nos. 13-50551, 14-50180

              Plaintiff-Appellee,                D.C. No. 3:08-cr-04304-BEN-1

 v.
                                                 MEMORANDUM*
ADRIAN ZITLALPOPOCA-
HERNANDEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted November 2, 2015
                              Pasadena, California

Before: W. FLETCHER and GOULD, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.

      Adrian Zitlalpopoca-Hernandez (“Zitlalpopoca”) appeals the district court’s

sentence on remand of 262 months and order of restitution of $8,960. A jury


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
convicted Zitlalpopoca, a Mexican citizen, of ten counts of prostitution involving

the sex trafficking of two women. This Court reversed three of those counts and

remanded the remaining seven for resentencing. United States v.

Zitlalpopoca-Hernandez, 495 F. App’x. 833, 836 (9th Cir. 2012) (unpublished).

Zitlalpopoca argues on appeal from resentencing that the district court incorrectly

applied multiple provisions of the United States Sentencing Guidelines, namely:

(1) the U.S.S.G § 2G1.1(c)(1) cross reference, which increased his base offense

level from 14 to 30; (2) the four-level aggravated sexual abuse enhancement under

18 U.S.C. § 2241; and (3) the two-level vulnerable victim enhancement under

U.S.S.G § 3A1.1(b). Zitlalpopoca further contends that the district court erred in

ordering restitution. We have jurisdiction under 28 U.S.C. § 1291 and vacate the

sentence and restitution order and remand for resentencing.

      We review “the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s factual determinations for clear error, and

the district court’s applications of the Guidelines to the facts for abuse of

discretion.” United States v. Christensen, 598 F.3d 1201, 1203 (9th Cir. 2010).

Further, we review the legality of the restitution order de novo. United States v.

Bussell, 414 F.3d 1048, 1061 (9th Cir. 2005).




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      First, the district court erred in applying U.S.S.G § 2G1.1(c)(1). This cross

reference to U.S.S.G § 2A3.1 imposes a base offense level of 30 if the underlying

offense involved conduct described in 18 U.S.C. § 2242(a) (knowingly causing

another person to engage in a sexual act by threatening or placing that other person

in fear). The application of this enhancement by the district court increased

Zitlalpopoca’s base offense level by 16 levels, from 14 to 30, and raised the final

Guideline range from 46–57 months to 262–327 months, a five-fold increase. As a

result of this disproportionate effect on Zitlalpopoca’s sentence, the district court

was required to find clear and convincing evidence to support this enhancement.

United States v. Gonzalez, 492 F.3d 1031, 1039 (9th Cir. 2007) (describing factors

in assessing whether the clear and convincing standard applies).

      The evidence presented at trial showed that Anabel, one of the women

Zitlalpopoca persuaded to travel to the United States to work as a prostitute, did

express fear of him at times. However, that fear was not shown by clear and

convincing evidence to have induced her to engage in prostitution. The district

court thus erred in applying U.S.S.G § 2G1.1(c)(1).

      The district court also erred by applying the four-level aggravated sexual

abuse enhancement under 18 U.S.C. § 2241. Application of this enhancement is

warranted when someone “knowingly causes another person to engage in a sexual


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act: (1) by using force against that other person; or (2) by threatening or placing

that other person in fear that any person will be subjected to death, serious bodily

injury, or kidnapping.” 18 U.S.C. § 2241(a). Though there was evidence that

Zitlalpopoca committed violence against the women he persuaded to engage in

prostitution, the evidence did not show that he caused them to do so with force or

threats of serious bodily harm. The district court incorrectly applied this

enhancement.

      The district court’s application of the vulnerable victim enhancement under

U.S.S.G § 3A1.1(b) was also error. This enhancement is applied if “the district

court identifies a specific factor (or factors) that made the victim uniquely

vulnerable as compared to the typical victim of the offense.” United States v.

Nielsen, 694 F.3d 1032, 1037 (9th Cir. 2012). Examples of this include individuals

who are “unusually vulnerable due to age, physical or mental condition, or who

[are] otherwise particularly susceptible to the criminal conduct.” U.S.S.G. §

3A1.1, cmt. n. 2.

      Here, the district court applied the enhancement because Zitlalpopoca

controlled Anabel through psychological manipulation. Zitlalpopoca promised

Anabel that they would be married one day and used this promise to coerce her




                                          -4-
into a life of prostitution. However, the comments to the Guidelines suggest that

the enhancement applies only where the perpetrator exploits a victim’s preexisting

vulnerability. See U.S.S.G. § 3A1.1, cmt. n. 2 (enhancement applies “in a fraud

case in which the defendant marketed an ineffective cancer cure or in a robbery in

which defendant selected a handicapped victim”). Here, there was no evidence that

Anabel was more predisposed to psychological manipulation than any other victim

of prostitution. Application of the vulnerable victim enhancement was error.

      Lastly, the district court incorrectly ordered mandatory restitution pursuant

to 18 U.S.C. § 3663A(c)(1). The district court found that it was empowered to

order restitution under either § 3663A(c)(1)(A) (as “a crime of violence”) or §

3663A(c)(1)(B) (as “a pecuniary loss”). However, a plain reading of this statute

requires a dual finding that the underlying offense was a crime of violence and that

the victim suffered a pecuniary loss. 18 U.S.C. § 3663A(c)(1). The district court

thus erred because Zitlalpopoca’s underlying offense, 18 U.S.C. § 2422

(persuasion or coercion to travel in foreign commerce for prostitution), is not

technically “a crime of violence.” 18 U.S.C. § 3663A(c)(1)(A)(i).

      Notwithstanding this error, we do not foreclose the possibility that

restitution may be awarded as a condition of supervised release pursuant to 18

U.S.C. § 3583(d). However, if restitution is awarded as a condition of supervised


                                         -5-
release, the district court must consider certain factors under 18 U.S.C. § 3553 in

deciding whether to impose a term of supervised release. 18 U.S.C. § 3583(c)

(providing that courts “shall consider the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)” when “determining

the length of the term and conditions of supervised release”). The district court’s

restitution order is thus reversed and remanded for further consideration.

      REVERSED AND REMANDED FOR RESENTENCING




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