                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 08 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50064

              Plaintiff - Appellee,              D.C. No. 5:11-cr-00070-VAP-1

  v.
                                                 MEMORANDUM*
JONATHAN PAUL CALVO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                          Submitted December 10, 2014**
                              Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       Defendant Jonathan Paul Calvo appeals his 240-month sentence imposed

following his guilty plea to enticement of a minor to engage in sexual activity, in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           -2-
violation of 18 U.S.C. § 2422(b). We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm in part, reverse in part, and remand for resentencing.

      On appeal, Calvo challenges the district court’s imposition of certain

sentencing enhancements and the substantive reasonableness of his sentence.

When reviewing a sentence, we first consider whether the district court committed

significant procedural error. United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc). “In determining whether the district court committed procedural

error, we review the district court’s interpretation of the Sentencing Guidelines de

novo, the district court’s application of the Sentencing Guidelines to the facts of a

case for abuse of discretion, and the district court’s factual findings for clear error.”

United States v. Brooks, 610 F.3d 1186, 1198 (9th Cir. 2010).

      First, Calvo challenges the district court’s imposition of a five-level

sentencing enhancement under U.S.S.G. § 4B1.5(b) for engaging in a pattern of

prohibited sexual conduct with a minor. Under U.S.S.G. § 4B1.5(b), a five-level

enhancement applies: “In any case in which the defendant’s instant offense of

conviction is a covered sex crime, neither § 4B1.1 nor subsection (a) of this

guideline applies, and the defendant engaged in a pattern of activity involving

prohibited sexual conduct[.]” The district court’s application of this enhancement

was proper because Calvo engaged in prohibited sexual conduct with a minor on
                                          -3-
multiple separate occasions. See United States v. Ferguson, 560 F.3d 1060, 1066

(9th Cir. 2009). Further, the district court did not clearly err in finding that Calvo

presented “a continuing danger to the public.” U.S.S.G. § 4B1.5 cmt. (backg’d).

Accordingly, the district court did not abuse its discretion by applying a five-level

enhancement under U.S.S.G. § 4B1.5(b).

      Second, Calvo challenges the district court’s imposition of a two-level

sentencing enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a

minor to engage in prohibited sexual conduct. Under U.S.S.G. § 2G1.3(b)(2)(B), a

two-level enhancement applies if the defendant “unduly influenced a minor to

engage in prohibited sexual conduct.” “Undue influence” is defined in the

Guidelines as activity that “compromise[s] the voluntariness of the minor’s

behavior[.]” U.S.S.G. § 2G1.3 cmt. n.3(B); accord United States v. Smith, 719

F.3d 1120, 1125 (9th Cir. 2013); see also United States v. Patterson, 576 F.3d 431,

443 (7th Cir. 2009) (“[T]he defining characteristic of undue influence is that it

involves a situation where the influencer has succeeded in altering the behavior of

the target.” (internal quotation marks omitted)). There is a rebuttable presumption

that a defendant unduly influenced a minor when the defendant is at least ten years

older than the victim. U.S.S.G. § 2G1.3 cmt. n.3(B).
                                                -4-
       A presumption of undue influence applies in the present case because Calvo

is at least ten years older than the victim. However, the undisputed evidence in the

record rebuts the presumption. The evidence shows that the victim went to the

internet chatroom of her own accord, willingly befriended Calvo, voluntarily

engaged in sexual banter with him, requested that he pick her up, and willingly

engaged in the sexual acts at issue. There is simply no evidence that Calvo did or

said anything to procure the victim’s consent to conduct that she was not already

inclined to do. The evidence shows that the victim was predisposed to engage in

the conduct at issue and voluntarily consented to it. Although not a defense to the

crime, this evidence is sufficient to rebut the presumption of undue influence,

particularly in the absence of any evidence indicative of an attempt to pressure or

persuade.1

       Because Calvo rebutted the presumption of undue influence, for the

enhancement to be applied, there must be evidence in the record showing that he

       1
         We find the government’s reliance on United States v. Brooks, 610 F.3d 1186 (9th Cir.
2010) unpersuasive, as Brooks is distinguishable from the present case. In Brooks, we found
evidence showing the victim’s willingness to engage in sexual activity irrelevant to the undue
influence determination because the prohibited sexual conduct at issue was prostitution, and
“[n]othing in the record suggest[ed] that the girls were inclined to engage in commercial sex acts
before they met [the defendants].” Id. at 1199 (emphasis in original). In contrast, here, Calvo
has presented the Court with evidence showing that the victim was inclined to go with him and
engage in the specific sexual conduct at issue. In addition, we find the out-of-circuit cases cited
by the Government unpersuasive and decline to follow their reasoning.
                                         -5-
actually exerted undue influence over the victim. There is none. Accordingly, the

district court should not have applied a two-level enhancement under U.S.S.G. §

2G1.3(b)(2)(B).

      Because we remand for resentencing based on the district court’s procedural

error, we neither reach nor do we express any opinion as to whether Calvo’s

sentence is substantively reasonable. See, e.g., United States v. Forrester, 616 F.3d

929, 950 (9th Cir. 2010).

AFFIRMED in part, REVERSED in part, and REMANDED.
                                                                              FILED
United States v. Calvo, No. 13-50064                                           JAN 08 2015

                                                                           MOLLY C. DWYER, CLERK
CHRISTEN, Circuit Judge, concurring in part and dissenting in part:         U.S. COURT OF APPEALS



      I agree that the district court did not abuse its discretion by applying a five-

level enhancement under U.S.S.G. § 4B1.5(b), and concur with that part of the

majority’s disposition.

      Because, in my view, Calvo has not shown that the district court abused its

discretion by applying the two-level enhancement under U.S.S.G.

§ 2G1.3(b)(2)(B), I respectfully dissent from that part of the majority’s reasoning.

The record contains evidence that the victim was groomed. This supports the

district court’s finding of undue influence. The majority concludes that Calvo

rebutted the presumption of undue influence through evidence of the victim’s

voluntariness, but that evidence is consistent with a victim subject to the influence

of an online predator. L.S. willingly engaged in an online relationship with Calvo

and requested that he pick her up, but this does not establish that she “willingly

engaged in the sexual acts at issue.” As several of our sister circuits have held,

under these circumstances evidence of a victim’s willingness does not render a

district court’s finding of undue influence clearly erroneous. See United States v.

Watkins, 667 F.3d 254, 265 (2d Cir. 2012); United States v. Hagen, 641 F.3d 268,

270–71 (8th Cir. 2011); United States v. Miller, 601 F.3d 734, 737 (7th Cir. 2010);

United States v. Lay, 583 F.3d 436, 445–46 (6th Cir. 2009).
      Because I find no procedural error and no substantive unreasonableness, see

United States v. Hilgers, 560 F.3d 944, 948 (9th Cir. 2009), I would affirm the

district court’s sentence.




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