                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 24, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-2044
          v.                                           (D. New M exico)
 V ICTO R C ASTELLO N ,                           (D.C. No. CR-05-1018-JC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and GORSUCH, Circuit Judges.




      Victor Castellon pled guilty to one count of engaging in illicit sexual

conduct in foreign commerce, in violation of 18 U.S.C. § 2423(c). He was

sentenced to seventy-one months’ imprisonment, followed by three years of

supervised release. He appeals his sentence. W e affirm.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                BACKGROUND

      In mid-January 2005, Castellon was a single 41-year-old working at Penske

Truck Rentals in Albuquerque, New M exico. W hile at work one day, Castellon

received a cell phone call from an unknown number. Because he did not

recognize the number, he did not answer the call. Instead, he called the number

back and was told by a young woman that the caller was her friend. Castellon

informed the young woman that she had called the wrong number and hung up.

      The next day, he received several more calls from this same number, but

when he answ ered the calls the caller hung up. Castellon refused to answ er calls

from that number. A similar pattern continued the next day. Then, Castellon

received a call from a different number, which he answered, but the caller hung

up. The caller from the new number then sent Castellon a text message inquiring

if he was “Eric from the bowling alley.” Castellon responded that the

caller/messager must have the wrong number. The caller sent additional inquiring

text messages, and Castellon and the caller, who turned out all along to have been

15-year-old Aleah, the victim in this case, embarked on a regular exchange of text

messages and phone calls.

      Castellon and Aleah met in person on February 4, 2005, when, after asking

Aleah what she wanted for Valentine’s D ay, Castellon went to Aleah’s school to

bring her, in accordance with her request, a box of chocolates, a rose, a W endy’s

lunch and a card. School authorities became concerned and called the police.

                                        -2-
The police spoke to both Aleah and, the next day, Castellon, and told Castellon to

have no further contact with Aleah.

       Castellon had no further contact with Aleah for several weeks. Then, Aleah

called him. Castellon asked her why she had called him and told her that he

would get in trouble if he talked to her. A leah told Castellon that she missed him.

They then resumed their daily text messaging and phone calls. After several

requests from Aleah for Castellon to pick her up, he finally did so at 11 p.m. on

M arch 25 near the shop her mother operated, after Aleah had snuck out of her

house unbeknownst to her parents.

       Castellon drove Aleah to a hotel where they had sexual intercourse.

Castellon paid for the hotel room with his credit card. Castellon then dropped

Aleah off at the spot where he had picked her up. Aleah initiated another similar

sexual encounter the next night, again after sneaking out of her house. During the

following week, Castellon picked Aleah up twice from school and took her to

lunch. 1

       Aleah then asked Castellon to pick her up the following Saturday night,

April 2, at the same time and location. They again went to a hotel and had sexual

intercourse. As he did on the prior occasions, Castellon paid for the hotel room

with his credit card. On this occasion, however, Aleah’s parents discovered she

       1
       Castellon disputes this, but without citation to any place in the record to
support his claim. Our recitation of the facts in this case is from the presentence
report prepared by the United States Probation Office in advance of sentencing.

                                         -3-
was missing and called the police. They also left a message on Aleah’s cell

phone, which Aleah saw when she and Castellon were in the hotel room.

      Aleah did not want to call her parents and she did not want to return to her

house. She eventually sent her parents a text message indicating that she would

not come home. Castellon and Aleah left the hotel and Castellon attempted to

drop her off near her mother’s shop, but Aleah refused to get out of the car.

Castellon tried to drop her off at another location and then back again at her

mother’s shop, but Aleah did not want to go.

      Castellon then told Aleah he was going to leave town, and she indicated she

wished to accompany him. They drove through the night to El Paso, Texas.

Aleah continued to receive messages from her parents. W hen Castellon

purchased a cell phone charger in El Paso and charged his cell phone, he

discovered that he too had received messages from Aleah’s parents.

      On April 3, Castellon and Aleah, after driving through the night from El

Paso, arrived in Ciudad Juarez, M exico, where Castellon rented a hotel room.

Castellon and Aleah again had intercourse. The next day, Castellon left Aleah at

the hotel in Ciudad Juarez while he returned to El Paso to look for work. W hen

he returned to the hotel, Castellon again had intercourse with Aleah. During this

time, Aleah made no effort to contact her parents.

      W hen they were returning to El Paso on April 5, United States border

officials stopped C astellon and Aleah after making various inquiries about the tw o

                                         -4-
of them. 2 W hen Castellon and Aleah were interviewed separately, they gave

fundamentally similar accounts of their entire relationship.

      As indicated, Castellon pled guilty to the single count of engaging in illicit

sexual conduct in foreign commerce, in violation of 18 U.S.C. § 2423(c). The

United States Probation Office prepared a presentence report (“PSR”). The PSR

assigned a two-level increase in Castellon’s total offense level under the United

States Sentencing Commission, Guidelines M anual (“USSG ”) (2004)

§2G1.3(b)(2)(B), which imposes a two-level increase where the defendant

“unduly influenced a minor to engage in prohibited sexual conduct.” 3 By letter,

Castellon objected to the enhancement and he then followed that with a formal

written objection to the enhancement. His objections included excerpts from an

interview the FBI conducted with Aleah’s friend, Arianna, which described

Aleah’s behavior before she met Castellon as follow s:


      2
        Aleah apparently had no identification documents when she tried to cross
the border. W hen agents learned that her parents lived in Albuquerque and that
Castellon did not know them, and also because of the obvious difference in their
ages, the agents referred Castellon and Aleah to a secondary inspection area.
During the secondary inspection, agents learned that Aleah had been reported
missing and they later discovered that an arrest warrant had been issued for
Castellon for taking a minor out of New M exico without authorization. The
Federal Bureau of Investigation then arrested Castellon and detained Aleah until
her father could pick her up.
      3
       Castellon’s total adjusted offense level was calculated as 25 and his
criminal history category was I. This resulted in a Guideline advisory sentencing
range of fifty-seven to seventy-one months. Castellon does not object to any
other aspects of his sentence other than the “undue influence” enhancement and
the length of the sentence.

                                         -5-
      [Aleah] L. is on the internet and text messages a lot. [Aleah] L. has
      a lot of boyfriends that she meets online or by text messaging.
      [Aleah] L. has one boyfriend who goes by “lucky” who [Aleah] L.
      has seen in person. [A leah] L. and [Arianna] A. often meet people
      online or through text and than (sic) arrange to meet them in person.
      [Arianna] A. has been with [Aleah] L. at Cottonwood M all in
      Albuquerque when the (sic) meet in person. The people are always
      males and are usually about [Aleah] L. and [Arianna] A.’s age.

First Addendum to PSR . Another friend of Aleah’s confirmed in her interview

with the FBI that Aleah had a boyfriend named Lucky and yet another friend

stated that she knew that Aleah frequently visited AOL chatrooms and “gave out

her name and telephone number to strangers.” Id. This information was added to

the PSR in the First Addendum.

      The Probation Office responded that it still felt the enhancement was

appropriate. In the alternative, in his objections Castellon sought the imposition

of a forty-six month sentence, which was the equivalent of the low end of the

Guideline Range calculated without the two-level enhancement for undue

influence.

      At sentencing, Castellon reiterated his written objections to the undue

influence enhancement, as well as his request for a forty-six month sentence. The

district court rejected his arguments and sentenced him to seventy-one months’

imprisonment. This appeal followed.

      On appeal, Castellon argues: (1) the district court erred in applying the

two-level enhancement for undue influence; (2) assuming the district court did not



                                         -6-
err in applying the undue influence enhancement, under the unique facts and

circumstances of this case the seventy-one month sentence is unreasonable; and

(3) the district court’s application of the guideline presumption of undue

influence as a mandatory presumption violated Castellon’s Fifth and Sixth

Amendment rights to due process and to a jury trial.



                                  D ISC USSIO N

      I. Undue Influence Enhancement

      Since the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), the Sentencing Guidelines are advisory, not mandatory. Further,

“[w]e review sentences imposed by the district court for reasonableness.” United

States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir.) (citing Booker, 543 U.S. at

260-65), cert. denied, 127 S. Ct. 434 (2006). “A properly calculated Guideline

sentence is ‘entitled to a rebuttable presumption of reasonableness.’” United

States v. Portillo-Quezada, 469 F.3d 1345, 1356 (10th Cir. 2006) (quoting United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)). 4 W e continue to “review

the district court’s legal conclusions de novo and its factual determinations for

clear error.” Galarza-Payan, 441 F.3d at 889.

      4
        W e note that the question of the propriety of according a presumption of
reasonableness to a properly calculated Guidelines sentence is now before the
Supreme Court. United States v. Rita, 177 Fed. Appx. 357, 2006 W L 1144508
(4th C ir.), cert. granted in part, 127 S. Ct. 551 (2006) (No. 06-5754). As we
explain more fully, infra, that does not affect the outcome of this case.

                                         -7-
      The commentary to §2G1.3(b)(2)(B) provides that “[i]n determining

whether subsection (b)(2)(B) applies, the court should closely consider the facts

of the case to determine whether a participant’s influence over the minor

compromised the voluntariness of the minor’s behavior.” Id., comment. (n.3(B )).

The commentary further provides:

      In a case in which a participant is at least 10 years older than the
      minor, there shall be a rebuttable presumption, for purposes of
      subsection (b)(2)(B), that such participant unduly influenced the
      minor to engage in prohibited sexual conduct. In such a case, some
      degree of undue influence can be presumed because of the substantial
      difference in age between the participant and the minor.

Id. Castellon argues the district court made no attempt to closely consider the

evidence in this case to determine whether Castellon exerted influence over Aleah

that compromised the voluntariness of her behavior. Rather, he alleges the court

relied solely on the age difference between Aleah and Castellon, thereby turning

the rebuttable presumption into a mandatory presumption, or, at best, erroneously

placing on Castellon the burden of persuading the court that he did not exert

undue influence.

      The Guidelines do not provide any explicit definition of what constitutes

“undue influence.” However, the sentencing enhancement “was added to the

Guidelines in 2000 to capture those cases where ‘coercion, enticement, or other

forms of undue influence by the defendant . . . compromised the voluntariness of

the victim’s behavior and, accordingly, increased the defendant’s culpability for



                                         -8-
the crime.” USSG §2A3.2, 2000 comments, background. 5 The government bears

the burden of proving sentencing enhancements. United States v. Chavez-Diaz,

444 F.3d 1223, 1227 (10th Cir. 2006).

       As indicated, the Application Notes to USSG §2G1.3 specifically provide

that there is a rebuttable presumption that undue influence was used if the

defendant is at least ten years older than the minor. In this case, Castellon was

twenty-six years older than Aleah, a sufficient age gap such that Castellon could

be the age of her father. Everyone agrees that this rebuttable presumption shifts

the burden of producing evidence to rebut the presumption to Castellon.

However, “[e]ven if a defendant’s burden of production is met, the presumption

remains a factor for consideration by the district court.” United States v.

Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). And, as indicated, the

government bears the ultimate burden of proving that the sentencing enhancement

is warranted.

       W hen Castellon objected to the PSR’s recommendation that the two-level

“undue influence” enhancement be applied, the probation officer responded as

follow s:




       5
       USSG §2A3.2, governing criminal sexual abuse of a minor, was the first
place in the Guidelines where an “undue influence” enhancement w as included.
W hen the Sentencing Commission promulgated the Guideline provision
applicable to Castellon, USSG §2G1.3, it provided for an identical “undue
influence” enhancement.

                                         -9-
      Upon review of the presentence report, it is this officer’s opinion that
      the two-level increase, pursuant to USSG §2G1.3(b)(2)(B), was
      appropriately applied. According to USSG §2G1.3 Application Note
      3(B), although the Court should closely consider the facts of the case
      to determine whether a participant’s influence over the minor
      compromised the voluntariness of the minor’s behavior, there shall
      be a rebuttable presumption that a participant who is more than ten
      years older than the minor unduly influenced the minor to engage in
      prohibited sexual conduct. In such a case, some degree of undue
      influence can be presumed because of the substantial difference in
      age between the participant and the minor. It should be noted that
      during the commission of the instant offense, the defendant was 41
      years old, while the victim was 15 years old, which is a 26-year age
      difference. This officer concedes that there is evidence the victim
      had a practice of initiating contact with males she did not know
      through the Internet and text messaging, and she used this technique
      to initiate contact with the defendant, which suggests she was a
      willing participant in the conduct underlying the instant offense.
      However, this officer contends that the victim’s behavior and the fact
      that she was one year younger than the age required to give legal
      consent do not negate the presumption that her voluntariness was
      compromised by the undue influence caused by the “substantial”
      difference in age between her and the defendant. As a result, the
      two-level increase, pursuant to USSG § 2G1.3(b)(2)(B) will not be
      omitted from the presentence report.

First Addendum to PSR at 1. The district court adopted the PSR and stated at

sentencing that it agreed w ith its analysis in the Addendum. The court also

comm ented, in response to Castellon’s statement that he “panicked” when he took

Aleah to M exico, as follows: “W ait a minute. You’re picking this girl up at 2:00

in the morning, two or three times, taking her to a motel, and you’re telling me

you panicked and went down to M exico with her? I mean, do you think this is my

first day sitting up here?” Sealed Tr. of Sentencing Hr’g at 19, R. Vol. III. The

court also noted that Castellon “transported a minor from Albuquerque, New

                                        -10-
M exico, to El Paso, Texas, and then Ciudad Juarez, M exico, and had sexual

intercourse with that minor.” Id. at 20.

      W hat is clear from the PSR, which contained all the facts about the

relationship between Castellon and Aleah and which the court examined and

adopted, and from the court’s statements at sentencing, is that the court

considered all the facts in the case. It found the presumption of undue influence

stemm ing from the substantial (twenty-six year) age difference was not

completely rebutted by Castellon’s emphasis on Aleah’s aggressive sexual

behavior both in the past and in this case and his emphasis on the fact that he did

not initiate the first contact in this case and did not behave as a typical sexual

predator. However, the court’s comments also indicate that it did not simply rely

on the presumption created by the age difference in order to find that the

sentencing enhancement was proper. The court was also influenced by the fact

that Castellon picked Aleah up in the middle of the night for sexual liaisons at

hotels he paid for, and that he then drove her all the way from Albuquerque to

M exico for further such liaisons, all while she had no money and no

identification. 6 Furthermore, it is clear that both Castellon and Aleah were aw are

      6
          As government counsel argued at sentencing:

      [E]very single mile this defendant drove from the city of
      Albuquerque down to M exico, he had occasion to think about where
      he was going to, who he was with. He didn’t have to go to M exico.
      He could have said, “I’m taking you home. You get out of the car.
                                                                   (continued...)

                                           -11-
that her parents were angry and upset and wanted her to return home. The court’s

emphasis on the substantial age difference between Castellon and Aleah indicates

that the court was not simply applying an automatic presumption that undue

influence was established because Castellon was more than ten years older than

Aleah; rather, it found the government had met its ultimate burden of establishing

undue influence because the particular facts of this case, including the fact that

Castellon was twenty-six years older than Aleah, supported that conclusion. 7 W e

accordingly hold that the court did not err in applying the two-level undue

influence enhancement.


      6
       (...continued)
      W e’re going to sit in the car until you get out, and that’s the end of
      it.”
             He didn’t have to drive to M exico. The evidence will support
      him getting very comfortable with a new life down in M exico.
      B ecause he w as seeking employment. He had employment down
      there. He w as beginning to develop that life. He w as very
      comfortable w ith that.

Sealed Tr. of Sentencing Hr’g at 16-17.
      7
       The parties discuss whether the court’s consideration of the existence or
not of undue influence must focus on the defendant’s conduct or on the victim’s
conduct and/or whose perspective is paramount. The case law is sparse on this
issue and not in agreement and involves situations where there is not a live
victim, but rather a law enforcement agent acting as a minor victim. See United
States v. Chriswell, 401 F.3d 459 (6th Cir. 2005); United States v. M itchell, 353
F.3d 552 (7th Cir. 2003); United States v. Root, 296 F.3d 1222 (11th Cir. 2002).
W e find we need not resolve that issue here. As the Guidelines state, the court
must examine all the facts in the case, which includes obviously the defendant’s
conduct and the victim’s conduct, including her response to the defendant’s
conduct. It makes little sense to apply such a “totality of the circumstances”
analysis with a narrow focus on either the defendant or the victim.

                                          -12-
      II. Reasonableness of Sentence

      Castellon argues that, even if the court did not err in imposing the undue

influence enhancement, the seventy-one month sentence in this case is

unreasonable. As indicated, since Booker, we review the length of sentences for

reasonableness, United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.

2006), and a properly calculated advisory Guideline sentence is presumptively

reasonable. W e have further stated that:

      Reasonableness review is guided by the factors set forth in 18 U.S.C.
      § 3553(a), which include the nature of the offense and characteristics
      of the defendant, as well as the need for the sentence to reflect the
      seriousness of the crime, to provide adequate deterrence, to protect
      the public, and to provide the defendant with needed training or
      treatment.

Kristl, 437 F.3d at 1053 (internal citation omitted). Further “our post-Booker

precedents do not require the court to explain on the record how the § 3553(a)

factors justify the sentence,” nor do we require “‘a ritualistic incantation to

establish consideration of a legal issue’” nor the recitation of “‘any magic words

to show us that [the court] fulfilled its responsibility to be mindful of the factors

that Congress has instructed it to consider.’” United States v. Lopez-Flores, 444

F.3d 1218, 1222 (10th Cir. 2006) (quoting United States v. Kelley, 359 F.3d

1302, 1305 (10th Cir. 2004)).




                                         -13-
      At the sentencing hearing and in his written request for a downward

variance, 8 Castellon argued that his conduct and history, and Aleah’s conduct and

history, took him outside of the heartland of travel sexual offenses, such that a

sentence of no more than forty-six months was reasonable. He argued that he was

not at risk of being a recidivist, nor w as he a danger to the community. The main

focus of Castellon’s argument, however, was on the first point— that his conduct

and history and Aleah’s conduct and history made him a very atypical offender

and her a very atypical victim. These are largely the same arguments he made in

support of his argument that the undue influence enhancement was inappropriate,

which we have held do not rebut the presumption of undue influence the

Guidelines have created.

      The court listened to Castellon’s arguments, and then stated that it had

“reviewed the presentence report factual findings and . . . considered the sentence

guideline applications and the factors set forth in 18 [U.S.C.] [§ ] 3553(a)(1)

through (7)” and then sentenced Castellon to seventy-one months. Sealed Tr. of

      8
          W e recently held that:

      [W ]hen a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapters Four or Five of the
      Sentencing Guidelines, the resulting increase or decrease is referred
      to as a “departure.” When a court enhances or detracts from the
      recommended range through application of § 3553(a) factors,
      however, the increase or decrease is called a “variance.”

United States v. Atencio, No. 05-2279, 2007 W L 102977, at *6 n.1 (10th Cir.
Jan. 17, 2007).

                                        -14-
Sentencing Hr’g at 20-21. That sentence is presumptively reasonable, and

Castellon has not rebutted that presumption. Even were the presumption

removed, we cannot say that the sentence imposed is unreasonable, in light of the

Guidelines advisory range and the § 3553(a) factors. Further, in the interest of

judicial economy, in light of the fact that the district court sentenced Castellon at

the high end of the advisory Guideline range, we are confident that it would not

impose a lower sentence if we remanded this case. It already had the discretion

and opportunity to sentence Castellon to a lesser period of time and it chose not

to, evidently believing the case did not warrant it. W e accordingly conclude the

seventy-one month sentence is reasonable.



      III. Fifth and Sixth Amendment Rights

      Finally, Castellon argues that the district court violated his Fifth and Sixth

Amendment rights to due process and a jury trial by applying the undue influence

presumption in a mandatory way. Because we have already concluded that the

district court did not apply the presumption in a mandatory, conclusory way, but

rather merely considered it as a part of the entire factual scenario presented in this

case, we need not address this argument further.




                                         -15-
                         C ON CLU SIO N

For the foregoing reasons, the sentence imposed is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -16-
