### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 11

- 51232

UNITED STATES OF AMERICA , Plaintiff

- Appellee
v. CRUZ ANDRES RAMOS , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas

Before HIGGINBOTHAM, OWEN, AND HIGGINSON, Circuit Judges

. PATRICK E. HIGGINBOTHAM, Circuit Judge : Cruz Andres Ramos ple a d ed 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 vulner able 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. United States Court of Appeals Fifth Circuit 

### FILED January 9, 2014

Lyle W. Cayce Clerk Case: 11-51232 Document: 00512495238 Page: 1 Date Filed: 01/09/2014No. 11

- 51232 I 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 shar ing files associated with child pornography. The IP ad dress 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 sexu al 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. § 2 25 2(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, t he 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 ot her depictions of violence ( “sadistic

- conduct enhancement”). Finally, per U.S.S.G. § 3A1.1(b)(1), it recommended a tw o - level enhancement because Ramos knew or should have known that a victim of the offen se was a vulnerable victim ( “vulnerable

- victim enhancement”). The PSR then recommended a three

- level downward adjustment for acceptance of responsibility, leavi ng a tota l offense level of 36. Ramos had no criminal history, so his criminal hist ory category was I, rendering a G uidelines range of 188 to 235 months for all four counts. But 2 Case: 11-51232 Document: 00512495238 Page: 2 Date Filed: 01/09/2014No. 11

- 51232 pursuant to U.S.S.G. § 5G1.1(a), t he lesser statutory maximum of 120 months for Coun ts III and IV, the two possession counts , became the G uidelines range for those counts. Ramos objected to the PSR’s application of th e vulnerable

- victim enhancement, arguing that it was based only on age and sadistic acts and thus double counted factors al ready 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 ex plained 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

ex ploitation and thu s, vulnerable victims.” At sentencing, Ramos again objected to th e application of the vulnerable

vict im enhancement. The G overnment responded that these were young

c hildren 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 c ount s , to be served concurrently

. II 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 t hat the error was not harmless. The Government argues that the district cour t did not engage in impermissible double counting and, in any event, any error is harmless.

3 Case: 11-51232 Document: 00512495238 Page: 3 Date Filed: 01/09/2014No. 11

- 51232 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, t here are vulnerabilities that can be unaccounted for by the age enhanceme nt. Recently, in United States v. Jenkins , 1 we rej ected an interpretation of the Guidelines c ommentary that would preclude the vulnerable

- victim enhancement from ever being applied to account for a vulnerability that is related to age. For example, child ren may be especially vulnerable as compared to other children because they are unable to walk or resist, whether that inability is due to an age

- related reason like infancy or another reason like paralysis. 2 Other cases agree that the age enhancement for pre

- pubescent children may be too narrow to account for the abuse of infants and toddlers who, being extremely young and small as compared to other children, are thus unusually vulnerable. 3 But in Jenkins itself, we explained that that “the inquiry should focus on whether the factor that makes the person a vulnerable victim is incorporated in the offense guideline.” 4 H ere, where the eight

- to ten

- year - old victims did not have an age related vulnerability as compared to other pre

- p ubescent children, only the bondage left these children more vulnerable than other pre

- pubescent

1 71 2 F.3d 209, 213 (5th Cir. 2013). 2 Id. at 213

- 14. 3 See, e.g. , United States v. Lynn , 636 F.3d 1127, 1138

- 39 (9th Cir. 2011) (no impermissible double counting with age enhancement where victims we re toddlers and thus particularly young, small, and unable to resist); United States v. Wright , 373 F.3d 935, 942

- 43 (9th Cir. 200 4) (same). 4 712 F.3d at 214 (internal quotation marks and citation omitted). 4 Case: 11-51232 Document: 00512495238 Page: 4 Date Filed: 01/09/2014No. 11

- 51232 children

— the same sadistic

- conduct factor for which Ramos’ s Guidelines range was already enhanced

. The G overnment argues that the sadistic

- conduct enhancemen t 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. 5 But Jenkins direct s that our inquiry focus on “t he factor that makes the person a vuln erable victim ” and whether this is already “ incorporated in the offense guideline

. ” 6 Under the specific facts h ere, where the sadistic

conduct enhancement already covered the vulnerability of bondage , counting it again in the form of a vulnerable

- victim e nhancement was im permissible. 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 g overnment 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. ” 7 Second, the Government “must show that the [sentence] the district court imposed was not influenced in any way by the erroneous Guideline calculation. ” 8 And a below

- G uidelines sentence does not automatically render harmless an improper G uidelines cal culation, because the district court may have settled upon its particular non

5 See United States v. Lyckman , 235 F.3d 234, 238

- 39 (5th Cir. 2000) ( S adistic conduct can include images of adults engaging in intercourse with children because such conduct i s “sufficiently painful, coercive, abusive, and degrading to qualify as sadistic or violent

. ”). 6 712 F.3d at 214 (internal quotation marks and citation omitted). 7 United States v. Ibarra

- Luna , 628 F.3d 712, 718

– 19 (5th Cir. 2010). 8 Id. at 719. 5 Case: 11-51232 Document: 00512495238 Page: 5 Date Filed: 01/09/2014No. 11

- 51232 Guidelines sentence by “ subtracting a fixed number of years.” 9 Here, the Government has met its burden of demonstrating harmless error. To begin, it is apparent from the record here that the district court would have imp osed the same sentence had the G uidelines range been properly calculated. Assuming that the vulnerable

- victim enhancement was not properly applied, then the correct offense level would be 34, with a crimin al hist ory category of I. The G uidelines 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 G uidelines sentence for those counts would become 120 months

. 10 In pronouncing the sentence, the district court explained: Mr. Ramos, based on the information provided, the circumstances of this case, and your particular circumstances, in keeping with the goals of the Sentencing Guidelines, and the factors of 3553( a), the Court will find that a fair and reasonable sentence in your case is a sentence of 120 months of incarceration. I am granting a variance as to Counts I and II, because I believe that the 120 is more than sufficient for you under your history and cir cumstances, to promote respect for the law, and provide just punishment. Accordingly, it appears that the district court imposed the 120

- month sentence because it was a lower statutory maximum sentence, and therefore the

9 United States v. Burney , 485 F. App’x 737, 739

- 40 (5th Cir. 2012) ( quoting Ibarra

Luna , 628 F.3d at 718)

. 10 See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutor ily authorized sentence shall be the guideline sentence.”). 6 Case: 11-51232 Document: 00512495238 Page: 6 Date Filed: 01/09/2014No. 11

- 51232 G uidelines sentence , with respect to Counts III and IV

— and would have been the G uidelines 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 believe d su ch a sentence to be sufficient given the § 3553(a) factors. Because it does not appear that the district court calculated downward from improperly calculated G uidelines, the concern raised by Burney

— that is, improperly calculated G uidelines can infect dow nward variance sentences

— is not at issue in the instant case. The Government has shown that the improperly calculated G uidelines did not influence the district court. In explaining the imposed sentence, the district court did not refer to the improperly c alculated G uidelines range. Instead, the district court focused on (i) the nature and circumstances of the offense, (ii) the § 3553(a) factors, and (iii) the G uideli nes sentence of 120 months , pursuant to the statutory maximum, for C ounts II I and I V

. In this regard, United States v. Moore 11 is apposite. There, the defendant alleged that the district court committed a procedural error during sentencing by improperly calculating the defendant’s criminal history category, which resulted in a G uidelines range of 292 to 365 months, instead of what he contended to be the proper range of 262 to 327 months. 12 Rather than sentence the defendant within the G uidelines range, the district court, as here, “imposed the statutory maximum sentence for each charge pursuant to U.S.S.G. § 5G1.1(a)[.]” 13 Accordingly, we held that the defendant’s argument failed because “the district court did not rely on [his] criminal history category to

11 425 F

. App’x 347 (5th Cir. 2011). 12 Id. at 354. 13 Id. 7 Case: 11-51232 Document: 00512495238 Page: 7 Date Filed: 01/09/2014No. 11

- 51232 impose a sentence.” 14 And “even if the district court had procedurally erred, such an err or was harmless because [his] sentence is below the Guideline’s range for either criminal history category.” 15 Applying this principle in accordance with the mandates of Ibarra

- Luna , we conclude on the record here, where the district court imposed a concur rent and correct statutory maximum sentence for Counts III and IV pursuant to § 5G1.1(a) and the § 3553(a) factors , that the sentence imposed was independent of any incorrect Guidelines calculation on Counts I and II

. Accordingly, for these reasons, we h old that any error was harmless and we AFFIRM the district court’s sentence.

14 Id. 15 Id. 8 Case: 11-51232 Document: 00512495238 Page: 8 Date Filed: 01/09/2014