# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 5, 2016

Decided November 3, 2016

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 16

‐ 1681

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

MARIA PORCAYO CARBAJAL,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 14 CR 561

‐ 2

Samuel Der

‐ Yeghiayan,

J udge

.

O R D E R

Maria Porcayo Carbajal pleaded guilty to using a false identification card that

misrepresented her daughter’s age. Because she used the card to prolong sexual abuse of

her daughter, the district court sentenced her to the statutory maximum of 5 years’

imprisonment. See 18 U.S.C. § 1028(a)(2) and (b)(2). Porcayo Carbajal challenges that

sentence on three grounds: (1) the district court did not address her arguments that she

was not a “willing” offender; (2) it did not explain the sentence; and (3) the sentence is

too long. The district court considered her arguments, sufficiently explained the

sentence, and it was reasonable, so we affirm the judgment. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 16

‐ 1681 Page 2

Porcayo Carbajal’s boyfriend Mario sexually abused her young daughter, T.P., for

seven years. The abuse began in 2004, when T.P. was seven, and Mario abused T.P.

almost daily. Porcayo Carbajal learned about the abuse directly from T.P. and indirectly

from a school counselor (to whom T.P. had confided) when T.P. was nine. Two years

later, a family friend reported to the local police that Mario was sexually touching T.P.

When this prompted a social worker to question the family about the abuse allegations,

Porcayo Carbajal and Mario fled with the family to avoid Mario’s arrest. They

absconded through Ohio and Michigan to Illinois, where they lived briefly. Porcayo

Carbajal never re

‐ enrolled her children in school.

Porcayo Carbajal committed her crime midway through the seven years of sexual

abuse by helping to prolong it further. While the family lived in Illinois, Mario vaginally

raped and impregnated T.P., who was then 11 years old. Once Porcayo Carbajal learned

that T.P. was pregnant, she and Mario agreed to falsify an identification card for T.P. so

that T.P. could get prenatal care without raising suspicion about the pregnancy. Porcayo

Carbajal gave Mario a copy of her older daughter’s birth certificate (she was over 18

years old), and he used it to create the fake card.

After Porcayo Carbajal helped create the fake card to conceal T.P.’s true age, the

abuse continued for another three years. Six months after T.P. had her first child, Mario

impregnated her again, but she miscarried because he punched her in the stomach.

Then, three months after the miscarriage, he impregnated her once more, and at age 14

T.P. gave birth to her second child. Each time she was pregnant, T.P. told her mother that

Mario was the father. After her third pregnancy and seven years of abuse, T.P. escaped

with her children in 2012 to New York.

Porcayo Carbajal pleaded guilty to producing the false I.D. card. The district court

calculated a guidelines range of 18 to 24 months. Starting with a base offense level of 6,

U.S.S.G. § 2B1.1(a)(2), the court adjusted it as follows: an increase to 14 because the

offense involved the risk of serious bodily injury, see U.S.S.G. § 2B1.1(b)(15)(A); a 2

‐ level

increase because of a vulnerable victim, see U.S.S.G. § 3A1.1(b)(1); another increase by 2

for use of a minor, see U.S.S.G. § 3B1.4.; and a reduction by 3 levels for acceptance of

responsibility, see U.S.S.G. § 3E1.1. Her criminal

‐ history category was I.

Porcayo Carbajal argued for a sentence between 6 and 18 months. Citing to T.P.’s

testimony at sentencing, her lawyer contended that Porcayo Carbajal was not a willing

accomplice. T.P. had testified as follows:No. 16

‐ 1681 Page 3

I feel that I’m a mother now, I’ll do anything for my children. No

man or woman is going to touch my children. I also feel that [my mother]

was vulnerable back then. She was scared of [Mario]. I never saw any

physical abuse but I always saw verbal and emotional abuse from him

against her.

Her lawyer further asserted that, because Mario did not let her work and she spoke little

English, she was financially and socially dependent on him and “lived in fear that her

children could be taken away.”

The government argued for the maximum sentence of 60 months. It emphasized

that for over seven years Porcayo Carbajal protected Mario instead of T.P. by fleeing the

police, keeping her children out of school, and helping create the fake I.D. Though T.P.

thought her mother was vulnerable and did not want her to serve additional time, the

government argued that the sentence needed to reflect the seriousness of the crime and

its lasting effects on T.P.

In sentencing Porcayo Carbajal to the statutory maximum of five years, the court

acknowledged her argument that she was an unwilling offender, but rejected it:

While defendant claims to have been manipulated and threatened

by her co

‐ defendant, that does not excuse the long seven years that she

allowed her daughter to be abused or the efforts that the defendant herself

undertook to ensure that her co

‐ defendant was able to continue with the

abuse. The defendant had opportunities and did not stop her

co

‐ defendant. The defendant also asserts that her co

‐ defendant was a sole

financial provider for the family but, again, financial help is no excuse to

offer one’s child up for years of sexual abuse. The conduct that the

defendant engaged in is reprehensible as counsel for defendant has also

agreed with and should be strongly condemned in any civilized society.

Children are vulnerable and must be protected in this society from

predators who seek to prey upon them.

Although this defendant may not have herself sexually abused her

daughter, her position of trust and authority over her daughter and to

actively facilitate the abuse makes her even every bit the predator as her

co

‐ defendant and the sentence of this defendant must reflect the

seriousness of the offense.No. 16

‐ 1681 Page 4

The district court also commented on T.P.’s testimony:

[T.P.] loves her own children and she indicated that she would

protect her own children, something that her mother did not do for her.

Yet, as a mother, she has asked this Court to be lenient on her own mother,

her own mother who did not protect her. That is, indeed, commendable.

But it does not give her mother a pass to the consequences of such actions.

The district court addressed the statutory § 3553(a) factors. First it discussed the

history and characteristics of Porcayo Carbajal, see 18 U.S.C. § 3553(a)(1). It noted that

she had no criminal history, had lost custody of her children while she was in detention,

and may be deported. But it explained that the latter two were “consequence[s] of her

own conduct.” Moving on to the seriousness of the offense, see 18 U.S.C. § 3553(a)(2)(A),

it recognized that producing a false I.D. was less serious than other crimes. But, the

district court said, the offense was significantly more serious here because the I.D. “was

used to facilitate the continued rape and impregnation of the defendant’s own minor

daughter.” In discussing deterrence, see 18 U.S.C. § 3553(a)(2)(B), the court said that

“there is a definite need to deter individuals from preying on children in our society who

are vulnerable and need protection” and thought that Porcayo Carbajal abused her trust

and authority over her child by allowing the abuse to continue. The court added that the

“public must be protected from someone who would take part in facilitating the sexual

abuse of a child,” see 18 U.S.C. § 3553(a)(2)(C). Finally the court remarked that Porcayo

Carbajal may need counseling and may be able to receive it in prison, see 18 U.S.C.

§ 3553(a)(2)(D).

On appeal Porcayo Carbajal first argues that the district court did not address her

argument that she was not a “willing accomplice” to her daughter’s sexual abuse.

She breaks this argument into four parts: (1) she was frightened and intimidated by

Mario; (2) she depended on him for financial support; (3) she was afraid of the

authorities because of her undocumented status; and (4) her family moved abruptly

because she was undocumented. Porcayo Carbajal did not make the last argument at

sentencing and the record did not support it, so the district court was not required to

consider it. See United States v. Rosales

, 813 F.3d 634, 637 (7th Cir. 2016).

The district court did address the first three arguments. It acknowledged her

assertions that she was “psychologically or emotionally” abused by Mario, that he was

the “sole financial provider for the family,” and that he “manipulated and threatened”No. 16

‐ 1681 Page 5

her. But the court reasonably found that this did not excuse her conduct because, over

the seven years that Mario abused her daughter, she “had opportunities and did not stop

her co

‐ defendant.” She replies that the court did not identify these “opportunities,” but

they are apparent from the record: (1) she had access to a school counselor who told her

in 2006 that Mario was abusing T.P. but she said nothing about the abuse; (2) two years

later, she also had access to a social worker who came to her house to discuss the abuse

allegations but she and Mario fled with T.P. to evade Mario’s arrest; and (3) another year

later, she agreed to create the fake I.D. to help avoid inquiry into the source of T.P.’s

pregnancy. Even if money worries, deportation fears, and emotional fragility made it

costly for her to turn Mario in, the district court reasonably found that she nonetheless

did not have to enable his sexual attacks on T.P., as she did. This finding contrasts

Porcayo Carbajal’s law

‐ breaking with T.P.’s vow that she would “anything” to ensure

that “no man or woman is going to touch [her] children.”

Next Porcayo Carbajal argues that the district court inadequately explained its

sentence. In reviewing an above

‐ guidelines sentence, as here, we must “ensure that the

justification is sufficiently compelling to support the degree of the variance.” Gall v.

United States

, 552 U.S. 38, 50 (2007); United States v. Bradley

, 675 F.3d 1021, 1025 (7th Cir.

2012). The district court must offer “an adequate statement of its reasons, consistent with

18 U.S.C. § 3553(a), for imposing such a sentence.” United States v. Gill

, 824 F.3d 653, 665

(7th Cir. 2016).

Although the sentence exceeded double the high end of the guidelines range, the

district court adequately addressed each applicable § 3553(a) factor. It discussed Porcayo

Carbajal’s history and characteristics, see 18 U.S.C. § 3553(a)(1), such as her losing

custody of her children while in detention and risking deportation, but it explained that

those were “consequence[s] of her own conduct.” In addressing the crime itself, see 18

U.S.C. § 3553(a)(2)(A), the district court recognized that creating a false I.D. was

generally not a serious crime but here Porcayo Carbajal used the I.D. for “the continued

rape and impregnation” of her own daughter. Finally the court discussed the need for

deterrence, see 18 U.S.C. § 3553(a)(2)(B), shielding the public from those like Porcayo

Carbajal who enable abusers, see 18 U.S.C. § 3553(a)(2)(C), and the counseling that she

may be able to receive in prison, see 18 U.S.C. § 3553(a)(2)(D).

Porcayo Carbajal replies that the guideline range had already been increased to

account for T.P.’s injuries, vulnerability, and minority status; she faults the district court

for not explaining why a greater sentence was necessary. But the court explained that the

enhancements did not fully capture the harms from Porcayo Carbajal’s misconduct. TheNo. 16

‐ 1681 Page 6

increase for conduct involving “a conscious or reckless risk of serious bodily injury”

applied because T.P.’s miscarriage of her second baby required hospitalization. The

increase for a vulnerable victim applied because the fake I.D. prolonged the abuse of a

minor. And the enhancement for using a minor applied because Porcayo Carbajal used

T.P. to obtain state benefits. But these increases did not cover what the district court

explained were Porcayo Carbajal’s “reprehensible” acts of enabling a sexual “predator”

of her own daughter at their home, thereby making herself a predator too, and inflicting

lifelong damage on T.P.

Finally Porcayo Carbajal argues that the district court imposed a substantively

unreasonable sentence. “An above

‐ guidelines sentence is more likely to be reasonable if

it is based on factors [that are] sufficiently particularized to the individual circumstances

of the case rather than factors common to offenders with like crimes.” Bradley

, 675 F.3d at

1026. Porcayo Carbajal argues that she “is not the typical offender in a sexual abuse case

that involved a small child.” That may be, but Porcayo Carbajal pleaded guilty to using a

false I.D., and this is not a typical false

‐ I.D. case. By helping create the fake I.D., Porcayo

Carbajal both concealed and perpetuated years of horrific, ongoing abuse and rape of her

young child. Under these circumstances, the district court did not abuse its discretion in

imposing the maximum, five

‐ year sentence. The judgment of the district court is

AFFIRMED.