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.
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
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.
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.
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,
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.
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.
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.
Accordingly, it appears that the district court imposed the 120-month sentence because it was a lower statutory maximum sentence, and therefore the 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
Accordingly, for these reasons, we hold that any error was harmless and we AFFIRM the district court's sentence.