     Case: 11-51232   Document: 00512495238   Page: 1   Date Filed: 01/09/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                               No. 11-51232                        January 9, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                        Plaintiff - Appellee
v.

CRUZ ANDRES RAMOS,

                                        Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, OWEN, AND HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Cruz Andres Ramos pleaded guilty to one count of receipt of material
involving the sexual exploitation of children, one count of distribution of
material involving the sexual exploitation of children, and two counts of
possession of material involving the sexual exploitation of children. The
presentence report recommended several enhancements, including a two-level
enhancement because Ramos knew or should have known that the victims
were vulnerable because they were young and small children who were unable
to resist. Ramos objected to the vulnerable-victim enhancement, arguing that
it double counted factors already accounted for by age and sadistic-conduct
enhancements. The district court overruled Ramos’s objection. He appeals the
judgment and sentence. For the reasons that follow, we AFFIRM.
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                                  No. 11-51232
                                        I
      In 2010, U.S. Immigration and Customs Enforcement agents in the El
Paso, Texas Division initiated an undercover internet operation that revealed
an IP address sharing files associated with child pornography. The IP address
was assigned to Appellant Cruz Andres Ramos (“Ramos”). The agents executed
a search warrant at Ramos’s home and found twelve videos of boys, between
approximately eight and sixteen years of age, engaged in sexual conduct or
lascivious poses. In some of the videos, the boys were naked and bound in
varying positions.
      Ramos was indicted with one count of receipt of material involving the
sexual exploitation of children in violation of 18 U.S.C. § 2252(a)(2) (“Count I”),
one count of distribution of such material in violation of 18 U.S.C. § 2252(a)(2)
(“Count II”), and two counts of possession of such in violation of 18 U.S.C. §
2252(a)(4)(B) (“Counts III and IV”).
      Ramos pleaded guilty to all counts. Prior to sentencing, the presentence
report (“PSR”), pursuant to U.S.S.G. § 2G2.2(b), recommended a base offense
level of 22. It also recommended, among other enhancements, a two-level
enhancement for material involving a prepubescent minor or a minor under
the age of 12 years (“age enhancement”), and a four-level enhancement for
material portraying sadistic or masochistic conduct or other depictions of
violence (“sadistic-conduct enhancement”). Finally, per U.S.S.G. § 3A1.1(b)(1),
it recommended a two-level enhancement because Ramos knew or should have
known that a victim of the offense was a vulnerable victim (“vulnerable-victim
enhancement”).       The PSR then recommended a three-level downward
adjustment for acceptance of responsibility, leaving a total offense level of 36.
Ramos had no criminal history, so his criminal history category was I,
rendering a Guidelines range of 188 to 235 months for all four counts.         But
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                                No. 11-51232
pursuant to U.S.S.G. § 5G1.1(a), the lesser statutory maximum of 120 months
for Counts III and IV, the two possession counts, became the Guidelines range
for those counts.
      Ramos objected to the PSR’s application of the vulnerable-victim
enhancement, arguing that it was based only on age and sadistic acts and thus
double counted factors already accounted for by the age and sadistic-conduct
enhancements. The PSR described several videos in which boys between eight
and ten years old were tied up by their hands and ankles with thick rope and
sitting naked and bound to chairs. The PSR then explained its justification for
the vulnerable-victim enhancement: “[S]everal of these images depict sexual
abuse and exploitation of young and small children who are unable to resist or
object to the abuse or exploit, making them susceptible to abuse and
exploitation and thus, vulnerable victims.”
      At sentencing, Ramos again objected to the application of the vulnerable-
victim enhancement.     The Government responded that these were young
children and very sadistic acts. The district court overruled Ramos’s objection
and adopted the PSR without change, but granted a downward variance as to
Counts I and II, sentencing Ramos to 120 months as to each of the four counts,
to be served concurrently.
                                      II
      On appeal, Ramos argues that the district court erred by applying the
vulnerable-victim enhancement, as it relied on factors that were already
incorporated in the age and sadistic-conduct enhancements, and that the error
was not harmless. The Government argues that the district court did not
engage in impermissible double counting and, in any event, any error is
harmless.


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                                      No. 11-51232
       We doubt that the district court correctly applied the vulnerable-victim
enhancement here, where the only factor that made these children particularly
vulnerable as compared to other pre-pubescent children—that some images
depicted the children bound to chairs with rope—was already accounted for by
the sadistic-conduct enhancement. Certainly, there are vulnerabilities that
can be unaccounted for by the age enhancement. Recently, in United States v.
Jenkins, 1 we rejected an interpretation of the Guidelines commentary that
would preclude the vulnerable-victim enhancement from ever being applied to
account for a vulnerability that is related to age. For example, children may
be especially vulnerable as compared to other children because they are unable
to walk or resist, whether that inability is due to an age-related reason like
infancy or another reason like paralysis. 2 Other cases agree that the age
enhancement for pre-pubescent children may be too narrow to account for the
abuse of infants and toddlers who, being extremely young and small as
compared to other children, are thus unusually vulnerable. 3 But in Jenkins
itself, we explained that that “the inquiry should focus on whether the factor
that makes the person a vulnerable victim is incorporated in the offense
guideline.” 4 Here, where the eight- to ten-year-old victims did not have an age-
related vulnerability as compared to other pre-pubescent children, only the
bondage left these children more vulnerable than other pre-pubescent




       1 712 F.3d 209, 213 (5th Cir. 2013).
       2 Id. at 213-14.
       3 See, e.g., United States v. Lynn, 636 F.3d 1127, 1138-39 (9th Cir. 2011) (no

impermissible double counting with age enhancement where victims were toddlers and thus
particularly young, small, and unable to resist); United States v. Wright, 373 F.3d 935, 942-
43 (9th Cir. 2004) (same).
       4 712 F.3d at 214 (internal quotation marks and citation omitted).

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                                       No. 11-51232
children—the same sadistic-conduct factor for which Ramos’s Guidelines range
was already enhanced.
       The Government argues that the sadistic-conduct enhancement was
broader in that it covered other behavior present in the videos, namely the
penetration of some children by adult males, and thus accounted for distinct
harms. 5    But Jenkins directs that our inquiry focus on “the factor that makes
the person a vulnerable victim” and whether this is already “incorporated in
the offense guideline.” 6 Under the specific facts here, where the sadistic-
conduct enhancement already covered the vulnerability of bondage, counting
it again in the form of a vulnerable-victim enhancement was impermissible.
       But a careful review of the record here demonstrates that any error was
harmless. Procedural sentencing errors may be excused as harmless error if
two requirements are met:              First, “the government must convincingly
demonstrate that the district court would have imposed a sentence outside the
correct Guidelines range for the same reasons it gave for imposing a sentence
outside the miscalculated Guidelines range.” 7 Second, the Government “must
show that the [sentence] the district court imposed was not influenced in any
way by the erroneous Guideline calculation.” 8                 And a below-Guidelines
sentence does not automatically render harmless an improper Guidelines
calculation, because the district court may have settled upon its particular non-




       5  See United States v. Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000) (Sadistic conduct
can include images of adults engaging in intercourse with children because such conduct is
“sufficiently painful, coercive, abusive, and degrading to qualify as sadistic or violent.”).
        6 712 F.3d at 214 (internal quotation marks and citation omitted).
        7 United States v. Ibarra-Luna, 628 F.3d 712, 718–19 (5th Cir. 2010).
        8 Id. at 719.

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                                      No. 11-51232
Guidelines sentence by “subtracting a fixed number of years.” 9 Here, the
Government has met its burden of demonstrating harmless error.
       To begin, it is apparent from the record here that the district court would
have imposed the same sentence had the Guidelines range been properly
calculated.     Assuming that the vulnerable-victim enhancement was not
properly applied, then the correct offense level would be 34, with a criminal
history category of I. The Guidelines sentence would then be 151 to 188
months for all counts.        But because the statutory maximum for the two
possession counts, Counts III and IV, is 120 months, the Guidelines sentence
for those counts would become 120 months. 10 In pronouncing the sentence, the
district court explained:
              Mr. Ramos, based on the information provided, the
              circumstances of this case, and your particular
              circumstances, in keeping with the goals of the
              Sentencing Guidelines, and the factors of 3553(a), the
              Court will find that a fair and reasonable sentence in
              your case is a sentence of 120 months of incarceration.
              I am granting a variance as to Counts I and II, because
              I believe that the 120 is more than sufficient for you
              under your history and circumstances, to promote
              respect for the law, and provide just punishment.
Accordingly, it appears that the district court imposed the 120-month sentence
because it was a lower statutory maximum sentence, and therefore the


       9 United States v. Burney, 485 F. App’x 737, 739-40 (5th Cir. 2012) (quoting Ibarra-
Luna, 628 F.3d at 718).
       10 See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is

less than the minimum of the applicable guideline range, the statutorily authorized sentence
shall be the guideline sentence.”).
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                                      No. 11-51232
Guidelines sentence, with respect to Counts III and IV—and would have been
the Guidelines sentence regardless of the application of the vulnerable-victim
enhancement—and imposed the same concurrent sentence as to Counts I and
II because the district court believed such a sentence to be sufficient given the
§ 3553(a) factors. Because it does not appear that the district court calculated
downward from improperly calculated Guidelines, the concern raised by
Burney—that is, improperly calculated Guidelines can infect downward
variance sentences—is not at issue in the instant case.
      The Government has shown that the improperly calculated Guidelines
did not influence the district court. In explaining the imposed sentence, the
district court did not refer to the improperly calculated Guidelines range.
Instead, the district court focused on (i) the nature and circumstances of the
offense, (ii) the § 3553(a) factors, and (iii) the Guidelines sentence of 120
months, pursuant to the statutory maximum, for Counts III and IV. In this
regard, United States v. Moore 11 is apposite. There, the defendant alleged that
the district court committed a procedural error during sentencing by
improperly calculating the defendant’s criminal history category, which
resulted in a Guidelines range of 292 to 365 months, instead of what he
contended to be the proper range of 262 to 327 months. 12 Rather than sentence
the defendant within the Guidelines range, the district court, as here, “imposed
the statutory maximum sentence for each charge pursuant to U.S.S.G. §
5G1.1(a)[.]” 13   Accordingly, we held that the defendant’s argument failed
because “the district court did not rely on [his] criminal history category to




      11 425 F. App’x 347 (5th Cir. 2011).
      12 Id. at 354.
      13 Id.

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                                  No. 11-51232
impose a sentence.” 14 And “even if the district court had procedurally erred,
such an error was harmless because [his] sentence is below the Guideline’s
range for either criminal history category.” 15     Applying this principle in
accordance with the mandates of Ibarra-Luna, we conclude on the record here,
where the district court imposed a concurrent and correct statutory maximum
sentence for Counts III and IV pursuant to § 5G1.1(a) and the § 3553(a) factors,
that the sentence imposed was independent of any incorrect Guidelines
calculation on Counts I and II.
      Accordingly, for these reasons, we hold that any error was harmless and
we AFFIRM the district court’s sentence.




      14   Id.
      15   Id.
                                       8
