596 F. App'x 541
9th Cir.2015Background
- Calvo appeals a 240-month sentence after pleading guilty to enticement of a minor to engage in sexual activity under 18 U.S.C. § 2422(b).
- The case proceeded in the district court with sentencing enhancements challenged on appeal.
- Court has jurisdiction under 28 U.S.C. § 1291; the panel affirms in part, reverses in part, and remands for resentencing.
- Calvo challenges the district court’s application of two sentencing enhancements and the sentence’s substantive reasonableness.
- The court first reviews procedural errors under Carty and applies de novo review to Guidelines interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 5-level enhancement under § 4B1.5(b) was proper. | Calvo argues the 5-level enhancement was improper. | Calvo contends the district court abused its discretion by applying the enhancement; the government argues it was proper. | Properly applied; no abuse of discretion. |
| Whether 2G1.3(b)(2)(B) undue-influence enhancement should apply. | Calvo argues the enhancement should apply due to undue influence evidence. | Calvo contends the presumption rebutted and there is insufficient evidence of undue influence. | Not applied; remand for resentencing due to procedural error. |
Key Cases Cited
- United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009) (supports 5-level enhancement under § 4B1.5(b))
- United States v. Smith, 719 F.3d 1120 (9th Cir. 2013) (defines undue-influence standard under § 2G1.3 cmt. n. 3(B))
- United States v. Patterson, 576 F.3d 431 (7th Cir. 2009) (discusses undue-influence concept ')
- United States v. Brooks, 610 F.3d 1186 (9th Cir. 2010) (distinguishes online-victim willingness analysis in undue-influence context)
- United States v. Forrester, 616 F.3d 929 (9th Cir. 2010) (discusses procedural error and remand in sentencing)