United States v. Lucero
2014 U.S. App. LEXIS 8311
| 10th Cir. | 2014Background
- Lucero pled guilty to three counts of receipt and two counts of possession of child pornography under 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), 2256 and §§ 2252(a)(4)(B), 2252(b)(2), 2256.
- At sentencing the district court applied a five-level enhancement under § 2G2.2(b)(5) for a pattern of activity based on molesting two nieces decades earlier.
- The PSR calculated a base level of 22, added various adjustments (including the pattern enhancement to level 28), yielding a guideline range of 78 to 97 months, later refined to 78 to 92 months.
- Lucero objected to the pattern enhancement as remote in time and not related to the current offense; he asked for a variance to 60 months.
- The district court overruled the objection and sentenced Lucero to 78 months in prison followed by 15 years of supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2G2.2(b)(5) may apply to remote conduct | Lucero contends the pattern enhancement should be limited by time and relevance to the offense. | Lucero argues the enhancement is inapplicable given the distant, unrelated prior conduct. | Pattern enhancement applies regardless of when the conduct occurred. |
| Whether the district court should have downwardly varied | Lucero requests a variance due to age of pattern conduct and his personal characteristics. | Lucero argues the court should depart downward because time and personal history lessen the offense’s seriousness. | Court did not abuse discretion; sentence within the Guidelines range is reasonable. |
Key Cases Cited
- Plotts v. United States, 347 F.3d 873 (10th Cir. 2003) (guideline interpretation as statute-like guidance)
- Gonzalez v. United States, None () ()
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (sentencing framework post-Booker; consider § 3553(a))
- Kimbrough v. United States, 552 U.S. 85 (S. Ct. 2007) (policy-based considerations in § 3553(a) deviations)
- Chavez v. United States, 723 F.3d 1226 (10th Cir. 2013) (abuse-of-discretion review and § 3553(a) factors)
- Huckins v. United States, 529 F.3d 1312 (10th Cir. 2008) (procedural/plain-error review standard in sentencing)
- Martinez-Barragan v. United States, 545 F.3d 894 (10th Cir. 2008) (individualized § 3553(a) assessment post-Booker)