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 pleaded 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 vulnerable 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

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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 sharing files associated with child pornography. The IP address 

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 sexual 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. § 2252(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, the 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 other depictions of 

violence (“sadistic-conduct enhancement”). Finally, per U.S.S.G. § 3A1.1(b)(1), 

it recommended a two-level enhancement because Ramos knew or should have 

known that a victim of the offense was a vulnerable victim (“vulnerable-victim 

enhancement”). The PSR then recommended a three-level downward 

adjustment for acceptance of responsibility, leaving a total offense level of 36. 

Ramos had no criminal history, so his criminal history category was I, 

rendering a Guidelines range of 188 to 235 months for all four counts. But

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pursuant to U.S.S.G. § 5G1.1(a), the lesser statutory maximum of 120 months 

for Counts III and IV, the two possession counts, became the Guidelines range 

for those counts.

Ramos objected to the PSR’s application of the vulnerable-victim 

enhancement, arguing that it was based only on age and sadistic acts and thus 

double counted factors already 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 explained 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 

exploitation and thus, vulnerable victims.”

At sentencing, Ramos again objected to the application of the vulnerablevictim enhancement. The Government responded that these were young 

children 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 counts, 

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 that the error 

was not harmless. The Government argues that the district court did not 

engage in impermissible double counting and, in any event, any error is 

harmless.

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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, there are vulnerabilities that 

can be unaccounted for by the age enhancement. Recently, in United States v. 

Jenkins,1 we rejected an interpretation of the Guidelines commentary that 

would preclude the vulnerable-victim enhancement from ever being applied to 

account for a vulnerability that is related to age. For example, children 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 Here, where the eight- to ten-year-old victims did not have an agerelated vulnerability as compared to other pre-pubescent children, only the 

bondage left these children more vulnerable than other pre-pubescent 

1 712 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 were toddlers and thus 

particularly young, small, and unable to resist); United States v. Wright, 373 F.3d 935, 942-

43 (9th Cir. 2004) (same). 

4 712 F.3d at 214 (internal quotation marks and citation omitted).

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children—the same sadistic-conduct factor for which Ramos’s Guidelines range 

was already enhanced. 

The Government argues that the sadistic-conduct enhancement 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 directs that our inquiry focus on “the factor that makes 

the person a vulnerable victim” and whether this is already “incorporated in 

the offense guideline.”6 Under the specific facts here, where the sadisticconduct enhancement already covered the vulnerability of bondage, counting 

it again in the form of a vulnerable-victim enhancement was impermissible. 

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 government 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-Guidelines 

sentence does not automatically render harmless an improper Guidelines 

calculation, because the district court may have settled upon its particular non5 See United States v. Lyckman, 235 F.3d 234, 238-39 (5th Cir. 2000) (Sadistic conduct 

can include images of adults engaging in intercourse with children because such conduct is 

“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.

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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 imposed the same sentence had the Guidelines range been properly 

calculated. Assuming that the vulnerable-victim enhancement was not 

properly applied, then the correct offense level would be 34, with a criminal 

history category of I. The Guidelines 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 Guidelines 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 circumstances, 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 IbarraLuna, 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 statutorily authorized sentence 

shall be the guideline sentence.”).

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Guidelines sentence, with respect to Counts III and IV—and would have been 

the Guidelines 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 believed such a sentence to be sufficient given the 

§ 3553(a) factors. Because it does not appear that the district court calculated 

downward from improperly calculated Guidelines, the concern raised by 

Burney—that is, improperly calculated Guidelines can infect downward 

variance sentences—is not at issue in the instant case.

The Government has shown that the improperly calculated Guidelines 

did not influence the district court. In explaining the imposed sentence, the 

district court did not refer to the improperly calculated Guidelines range. 

Instead, the district court focused on (i) the nature and circumstances of the 

offense, (ii) the § 3553(a) factors, and (iii) the Guidelines sentence of 120 

months, pursuant to the statutory maximum, for Counts III and IV. In this 

regard, United States v. Moore11 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 Guidelines 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 Guidelines 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. 

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impose a sentence.”14 And “even if the district court had procedurally erred, 

such an error 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 concurrent 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 hold that any error was harmless and 

we AFFIRM the district court’s sentence.

14 Id.

15 Id. 

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