     Case: 15-41168   Document: 00513706045        Page: 1   Date Filed: 10/05/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 15-41168
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 5, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

LYDIA VASQUEZ,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
HAYNES, Circuit Judge:
      Lydia Vasquez appeals the 140-month sentence she received for
knowingly enticing and coercing an individual to engage in unlawful sexual
activity under 18 U.S.C. § 2422(a). Vasquez challenges whether an eight-level
enhancement for an offense involving a minor under twelve years of age should
have applied to increase her sentence, see U.S. SENTENCING GUIDELINES
MANUAL (“U.S.S.G.”) § 2G1.3(b)(5) (U.S. SENTENCING COMM’N 2015), when she
knew the minor was fictitious because she had made the infant up. We hold
that § 2G1.3(b)(5) does not apply when a defendant invents and offers a
fictitious minor under twelve years of age to entice another person to engage
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in unlawful sexual activity. 1 By failing to consider whether the alleged minor
actually existed, the district court did not make the factual findings necessary
to apply § 2G1.3(b)(5) in this case. We therefore VACATE the sentence and
REMAND the case to the district court for further factual findings and
resentencing consistent with this opinion. 2
                                      I. Background
       Vasquez, a mother of five children, had a relationship by phone, text, and
internet with a man named Keith who lived in another state. At some point,
Vasquez discussed having Keith visit her and attempted to entice him to visit
by suggesting that Keith could have sexual relations with Vasquez’s twelve-
year-old daughter and her cousin’s allegedly unborn infant after the infant’s
birth. An undercover FBI agent assumed Keith’s identity online and continued
to engage in conversations with Vasquez, culminating in a plan for Keith to
visit her in August 2014. Vasquez was arrested on her way to pick up Keith at
the airport.
       Vasquez pleaded guilty to inducing and enticing Keith to travel
interstate to engage in indecency with a child, in violation of 18 U.S.C.
§ 2422(a). The district court adopted the Presentence Investigation Report
(“PSR”) and determined that Vasquez faced a Guidelines range of 135–168
months of imprisonment.            It then sentenced Vasquez to 140 months of
imprisonment and five years of supervised release. Based upon Vasquez’s


       1 This conclusion does not implicate whether a defendant may receive an enhanced
sentence for seeking to entice unlawful sexual activity with a fictitious minor invented and
proffered to defendant by a law enforcement officer. Indeed, situations involving law
enforcement officers are explicitly addressed in the Guidelines and differ from the factual
circumstances in this case. See U.S.S.G. § 2G1.3 cmt. n.1.
       2The parties also agree that the oral pronouncement of Vasquez’s sentence conflicted
with the written judgment imposing her sentence, and that several special conditions of
supervised release should therefore be vacated and the case remanded to the district court to
eliminate the conflicts. On remand, the district court should reconcile these conflicts between
the written judgment and the oral pronouncement.
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                                 No. 15-41168

conversations with Keith about the alleged unborn infant, the district court
applied the eight-level enhancement in U.S.S.G. § 2G1.3(b)(5), concluding that
Vasquez’s conduct involved a minor under the age of twelve, even if that minor
was fictitious.
                            II. Standard of Review
      We review the district court’s interpretation and application of the
Guidelines de novo and its underlying factual findings for clear error. See
United States v. Reyna-Esparza, 777 F.3d 291, 293–94 (5th Cir. 2015). “If the
district court made a legal error that affected its factual findings, ‘remand is
the proper course unless the record permits only one resolution of the factual
issue.’” Ball v. LeBlanc, 792 F.3d 584, 596 (5th Cir. 2015) (quoting Pullman–
Standard v. Swint, 456 U.S. 273, 292 (1982)).
                                 III. Discussion
      Section 2G1.3(b)(5) of the Guidelines applies an eight-level enhancement
if a defendant has a base level covered by § 2G1.3(a)(4), as did Vasquez, and if
“the offense involved a minor who had not attained the age of 12 years.”
U.S.S.G. § 2G1.3(b)(5).    In the Commentary relevant to this appeal, the
Guidelines define a “minor” as
      (A) an individual who had not attained the age of 18 years; (B) an
      individual, whether fictitious or not, who a law enforcement officer
      represented to a participant (i) had not attained the age of 18
      years, and (ii) could be provided for the purposes of engaging in
      sexually explicit conduct; or (C) an undercover law enforcement
      officer who represented to a participant that the officer had not
      attained the age of 18 years.
Id. § 2G1.3 cmt. n.1. The parties agree that only the definition listed under
“(A)” would apply in this case because this offense did not involve a fictitious
individual invented by a law enforcement officer or a law enforcement officer
presenting as a minor.



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      Vasquez argues that the district court improperly applied the eight-level
enhancement under U.S.S.G. § 2G1.3(b)(5) for an offense involving a minor
under twelve years of age. 3           She contends that the enhancement in
§ 2G1.3(b)(5) does not apply to “a fictitious being represented to be real by an
offense participant to another participant.” Vasquez also asserts that the
district court based its application of the enhancement on an infant Vasquez
made up and knew to be imaginary, and made no finding that there was a real
infant.
      The government argues that the enhancement should apply even if the
district court did not find that Vasquez’s offense involved a real infant. To
support applying the enhancement in this situation, the government cites
cases in which circuit courts have chosen to apply similar enhancements to
punish the defendant’s intent, all involving undercover officers either posing
as fictitious minors or proffering fictitious minors. See, e.g., United States v.
Angwin, 560 F.3d 549, 552–53 (6th Cir. 2009); United States v. Vance, 494 F.3d
985, 996 (11th Cir. 2007), superseded by regulation, U.S.S.G. supp. app. C,
Amendment 732 (Nov. 2009), as recognized in United States v. Jerchower, 631
F.3d 1181, 1186–87 (11th Cir. 2011). This case does not involve either of those
circumstances, which implicate definitions of “minor” not relevant to this case.
See § 2G1.3 cmt. n.1.
      We find instructive the Eleventh Circuit’s interpretation of a similar
enhancement applying the same definition of “minor” involved here:
      The only part of the definition of “minor” in the commentary to
      U.S.S.G. § 2G2.2 that does not include the involvement of a law
      enforcement officer is “an individual who had not attained the age

      3   Vasquez no longer argues, as she did before the district court, that a two-level
enhancement for use of a computer was improperly applied under U.S.S.G. § 2G1.3(b)(3). She
has therefore abandoned this argument. BIS Salamis, Inc. v. Dir., Office of Workers’ Comp.
Programs, 819 F.3d 116, 131 n.10 (5th Cir. 2016) (noting that claim was “abandoned” where
plaintiff did not “explicitly contest the denial of his claim”).
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       of 18 years.” See § 2G2.2 cmt. n.1(A). In other words, where the
       defendant is not dealing with a law enforcement officer, the
       enhancement applies only where the “minor” actually is a true, real
       live, sure enough minor.
United States v. Fulford, 662 F.3d 1174, 1181 (11th Cir. 2011) (emphasis
added). 4 Applying Fulford’s reasoning to the applicable definition of “minor”
in § 2G1.3(b)(5), we hold that the enhancement in § 2G1.3(b)(5) does not apply
where the defendant solicits another person to engage in unlawful sexual
activity with a fictitious minor, invented by the defendant, under twelve years
of age. For the enhancement to apply under these circumstances, the minor
must be a real person.
       Here, Vasquez attempted to entice another person to engage in unlawful
sexual activity with an alleged infant. The district court, without determining
whether the infant was a real person, erroneously concluded that the
enhancement applied even if the infant was fictitious. When Vasquez’s counsel
objected that the eight-level enhancement should not apply because the infant
was fictitious, the district court responded that “whether or not the child
existed is not the issue.” The district court then went on to say that “you can
have a fictitious minor and this is what this was, even if there was nobody that
was going to give her a child, she was talking about at the very, very least a
fictitious minor.” This legal error infected the district court’s factual findings,
as the record does not clearly contain any factual findings about whether the
infant Vasquez discussed was real. 5 We therefore vacate Vasquez’s sentence



       4  See also Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1706 (2012) (concluding
that “‘individual’ ordinarily means ‘[a] human being, a person’” and “refer[s] unmistakably to
a natural person” (first alteration in original) (citations omitted)); United States v. Vargas-
Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc) (noting that the Guidelines are interpreted
according to the ordinary rules of statutory construction, including that the words of the
Guidelines should be given their plain meaning absent ambiguity).
       The PSR stated that Vasquez “informed [Keith] that she was going to be given a
       5

newborn child,” but it also noted that an FBI Agent “was unable to identify the relatives of
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                                       No. 15-41168

and remand to the district court to make additional factual findings about
whether the infant was real. Absent such factual findings in the record, we
cannot determine whether the enhancement in § 2G1.3(b)(5) was properly
applied.
       Accordingly, we VACATE the district court’s sentence and REMAND the
case to the district court for further proceedings consistent with this opinion.




the unborn child.” The government asks the court to infer from the PSR that the district
court found that the infant Vasquez discussed was real, since the district court adopted the
PSR in full. However, even if the district court’s adoption of the PSR could normally stand
for an implicit finding on this issue, the district court’s conclusion that it need not consider
whether the alleged unborn infant existed belies such an implicit finding.
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