United States v. Fred Romero, 558 F. App'x 501

Romero pleaded guilty to receipt and possession of child pornography; district court imposed 135 months incarceration.
The Government urged the district court to apply the § 2G2.2(c)(1) cross reference, resulting in a higher guideline range.
Romero objected to the cross reference; the district court applied it, producing an eight-level enhancement and a 135–138 month range.
Two sets of images were produced by Romero: one set depicting minor victim #1 sleeping, the other while swinging on a jungle gym, both with added captions indicating sexual intent.
Romero admitted to creating the images; indictment charged §2252A(a)(2) and (a)(5)(B); he pled guilty to both counts.
On appeal, the Fifth Circuit vacated the sentence and remanded for resentencing, concluding the cross reference was misapplied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the § 2G2.2(c)(1) cross reference was properly applied	Romero argued against applying the cross reference	Government contended the cross reference should apply to increase punishment	Cross reference misapplied; vacate and remand
Whether the cross reference is supported by the lasciviousness of the images	Romero contends photos do not show lascivious exhibition	Government maintains the total content supports lasciviousness	Court held the cross reference not warranted by these images; remand for resentencing

United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (definition of lascivious exhibition and factors used to evaluate it)
United States v. Grimes, 244 F.3d 375 (5th Cir. 2001) (factors for lasciviousness or total content evaluation)
United States v. Carroll, 190 F.3d 290 (5th Cir. 1999) (discussion of whether minor must affirmatively commit sexual act; interpretation of lascivious conduct)
United States v. Johnson, 639 F.3d 433 (8th Cir. 2011) (interpretation of lascivious exhibition of a minor)
United States v. Horn, 187 F.3d 781 (5th Cir. 1999) (surreptitious recordings; dental discussion of lasciviousness)