United States v. Castillo, 981 F.3d 94

Castillo lived with his son and two granddaughters in Germany (2011–2014). He admitted in a plea agreement to touching FM-2’s inner thigh (abusive sexual contact under 18 U.S.C. § 2244(a)(5)); the government dismissed a separate count charging aggravated sexual abuse of FM-1 (§ 2241(c)).
The plea agreement and PSR also described other acts: attempting to pull down FM-2’s pants on a separate occasion, and successfully pulling down FM-1’s pants and licking her genitalia on another occasion.
The Sentencing Guidelines provision for abusive sexual contact is USSG § 2A3.4; its subsection (c)(1) cross-references § 2A3.1 if the offense involved criminal sexual abuse or an attempt to commit it, which raises the base offense level substantially.
The PSR and the government applied the § 2A3.4(c)(1) cross-reference, treating the attempted pants-pull (and the FM-1 abuse) as relevant to infer intent to commit a sexual act; that calculation produced a Guideline range of 235–293 months.
The district court adopted the PSR calculation and sentenced Castillo to 235 months. Castillo objected to application of the cross-reference and to substantive unreasonableness; he appealed. The First Circuit vacated and remanded for resentencing, concluding the cross-reference was improperly applied.

Issue	Government's Argument	Castillo's Argument	Held
Whether the USSG § 2A3.4(c)(1) cross-reference to § 2A3.1 properly applied	The attempted pants-pull of FM-2 (and context of FM-1 abuse) is either part of the offense or relevant conduct showing an attempt to commit criminal sexual abuse, so the cross-reference applies	Only the convicted act (touching FM-2’s inner thigh) is the offense of conviction; the attempted pants-pull was a separate occasion and not ‘‘during the commission’’ of the conviction offense, and the thigh-touch alone does not show intent to commit a sexual act	Cross-reference improper: only the thigh-touch (the offense of conviction) was properly considered and that conduct alone did not, by a preponderance, demonstrate an attempt to commit criminal sexual abuse; remanded for resentencing
Whether Castillo preserved the challenge to considering extraneous acts as relevant conduct	Government: Castillo's objections were not specific to the ‘‘relevant conduct’’/offense-scope argument, so plain-error review should apply	Castillo: he specifically objected to the PSR and to the cross-reference application throughout sentencing, calling the Guidelines misapplication to the court's attention	Preserved: the Court found Castillo’s objections sufficiently specific to preserve the claim and reviewed for abuse of discretion

United States v. Dávila-Bonilla, 968 F.3d 1 (1st Cir. 2020) (standard for reviewing preserved sentencing objections)
United States v. Gonyer, 761 F.3d 157 (1st Cir. 2014) (define offense of conviction by statutory language for sentencing purposes)
United States v. Schock, 862 F.3d 563 (6th Cir. 2017) (contemporaneity required to find conduct occurred "during the commission" of the offense)
United States v. Ahders, 622 F.3d 115 (2d Cir. 2010) (relevant-conduct analysis where conduct occurred during same commission period)
United States v. West, [citation="576 F. App'x 729"] (10th Cir. 2014) (ongoing pattern of abuse supports finding of contemporaneous relevant conduct)
United States v. Chisholm, 940 F.3d 119 (1st Cir. 2019) (a party cannot advance a new theory on appeal that was abandoned below)
Hassan-Saleh-Mohamad v. United States, 930 F.3d 1 (1st Cir. 2019) (objection must be specific enough to alert the district court to the claimed error)