NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10014

                Plaintiff - Appellee,
                                                D.C. No. 2:17-cr-1152-PHX-SPL
 v.

LEVIAN DELA CAR PACHECO                         MEMORANDUM*
PACHECO, AKA Levian D. Pacheco,

                Defendant - Appellant.

                 On Appeal from the United States District Court
                          for the District of Arizona
                   Steven P. Logan, District Judge, Presiding

                      Argued and Submitted August 12, 2020
                            San Francisco, California

Before: GRABER and BRESS, Circuit Judges; and DAWSON,** District Judge.

      Levian Pacheco Pacheco appeals his sentence and conviction for seven

counts of abusive sexual contact with a ward, two counts of sexual abuse of a

ward, and one count of attempted sexual abuse of a ward. According to trial


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
testimony, Pacheco sexually abused numerous minors at the Casa Kokopelli

Southwest Key Facility in Mesa, Arizona. In a published opinion issued

concurrently with this memorandum disposition, we hold that the evidence sufficed

to prove that the minors in this case were in official detention for purposes of 18

U.S.C. § 2246(5)(A). We now reject the remainder of Pacheco’s arguments.

      1. Pacheco contends that his conviction for attempted sexual abuse should

be reversed for lack of evidence showing a substantial step toward anal

penetration. To constitute a substantial step, “[t]here must be some appreciable

fragment of the crime in progress.” United States v. Runco, 

, 1232

(9th Cir. 1989) (internal quotation marks omitted). The minor testified that

Pacheco entered the minor’s room during the morning hours. Pacheco followed

the minor to the bathroom, where he took off the minor’s shorts and his own

shorts. Pacheco then grabbed the minor’s genitalia and placed the minor’s phallus

on Pacheco’s buttocks. Pacheco propositioned anal sex, but the minor refused.

Relying on this testimony, any rational juror could have concluded that Pacheco

took a substantial step toward anal penetration. See United States v. Nevils, 

, 1164 (9th Cir. 2010) (en banc) (“after viewing the evidence in the light

most favorable to the prosecution, the reviewing court must determine whether this

evidence, so viewed, is adequate to allow ‘any rational trier of fact [to find] the

essential elements of the crime beyond a reasonable doubt.’” (quoting Jackson v.


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Virginia, 

, 319 (1979)) (emphasis omitted)).

       2. Pacheco further contends that the district court abused its discretion in

permitting expert testimony from Wendy Dutton, a forensic interviewer

specializing in child abuse. Specifically, Pacheco argues that the district court

failed to satisfy its gatekeeping responsibility under Rule 702. See United States v.

Ruvalcaba-Garcia, 

, 1188 (9th Cir. 2019) (holding that the district

court must ensure that expert testimony is both relevant and reliable, before

admitting it), cert. denied, 

(2020). Pacheco also argues that

Dutton’s testimony improperly bolstered the minors’ credibility under Rule 403.

       a. Dutton’s testimony was relevant because she discussed why children

similar to the minors in this case might delay in disclosing sexual abuse. Although

jurors might have a common understanding that victims of abuse are reluctant to

report and disclose, they may not understand the reasons for delayed reporting or

partial disclosure. Therefore, Dutton’s testimony was relevant. Fed. R. Evid. 401.

       b. Furthermore, the district court ensured the testimony’s reliability. Before

trial, the parties briefed the issue of reliability, after which the court held that

Dutton’s testimony was admissible under Rule 702. When Dutton testified, the

court satisfied its gatekeeping role by asking the government to lay additional

foundation as to Dutton’s experience and knowledge in the relevant cultural and

age groups. The government did so. Accordingly, the district court ensured that


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Dutton’s testimony rested on a reliable foundation.

      c. Moreover, Dutton’s testimony was not unfairly prejudicial under Rule

403. The risk of prejudice was minimized because Dutton’s testimony was limited

to the general behavioral characteristics of sexually abused children. She did not

suggest whether the jury should believe these minors specifically. See Brodit v.

Cambra, 

, 991 (9th Cir. 2003) (stating that expert testimony is

admissible when it “concerns [the] general characteristics of victims and is not

used to opine that a specific child is telling the truth”).

      d. Even if the court improperly admitted Dutton’s testimony, any error was

harmless. During the trial, the government elicited testimony from the seven

minor victims. They testified to the details of each crime. Taken together, there

was more than enough evidence for a jury to reach a guilty verdict.

      3. Pacheco also argues that his sentence was unreasonable. The district

court imposed a six-level upward departure based on aggravating circumstances,

which amounted to nineteen years’ imprisonment. Pacheco’s sentence is “subject

to a unitary review for reasonableness.” United States v. Mohamed, 

,

987 (9th Cir. 2006); see also United States v. Vasquez–Cruz, 

, 1008

(9th Cir. 2012) (reaffirming that departures are reviewed as part of the substantive

reasonableness analysis and not for procedural error).

      a. Pacheco argues that the district court improperly considered the risk of


                                            4
HIV infection at sentencing. Pacheco had HIV when he committed the conduct at

issue. The court repeatedly described Pacheco’s conduct as exposing the minors to

a “potential death sentence.” Pacheco contends that the court’s remark lacked any

support in the record and was medically unsound. Notwithstanding the district

court’s “death sentence” remark, the court appropriately explained that it imposed

the upward departure because of several factors: the potential risk of HIV

infection, the fact that the minors came to the United States to seek safety, and the

fact that Pacheco held a position of trust as a supervisor at Casa Kokopelli. These

determinations are supported by the record, and they are precisely the sort of

conduct contemplated by U.S. Sentencing Guidelines Manual § 5K2.0(a)(1)

(permitting departure based on aggravating circumstances in cases involving child

crimes and sexual offenses).

       b. Pacheco also argues that his sentence was unreasonable because it

amounted to a “300% trial penalty”—as measured from a six-year plea offer that

he rejected before trial. Pacheco suggests that the disparity between the pretrial

offer and the sentence demonstrates that the district court punished him for

exercising his right to trial. A careful examination of the sentencing transcript

reveals that the court made no comment about Pacheco’s decision to go to trial.

Accordingly, there is no basis to conclude that the district court penalized Pacheco

for exercising his trial rights.


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AFFIRMED.




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