# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-3077

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v. Francisco Zayas, also known as Juan Marin

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines

____________ Submitted: April 18, 2014 Filed: July 11, 2014

____________ Before LOKEN and MURPHY, Circuit Judges, and SIPPEL, 1 District Judge.

____________ MURPHY, Circuit Judge.

1 The Honorable Rodney W. Si ppel, United States District Judge for the Eastern District of Missouri, sitting by designation.Francisco Zayas pled guilty to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The district court 2applied U.S.S.G. § 2G2.1 and sentenced him to twenty years imprisonment. He now appeals, challenging the application of the sentencing guideline and the reasonableness of his sentence. We affirm.

Law enforcement officials us ed the ARES peer to p eer network in September 2012 to investigate Francisco Zayas, also known as Juan Marin, for downloading and sharing images of child pornography. Af ter officials discovered that Marin had received and possessed child pornography, th ey used the network to download five videos containing child pornography from Marin's computer. Officers executed a search warrant at Marin's Iowa residence on November 7, 2012. They seized a computer, two USB drives, a nd a compact disc; a prelimin ary forensic examination of the seized items showed that they cont ained hundreds of images and videos of child pornography. Marin was arrested that day and told officers that eight years earlier while residing in Mexico he had taken pi ctures of himself having sexual intercourse with his eleven year old nephew. Marin was charged on December 18, 2012 with receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of § 2252(a)(4 )(B). He pled guilty to receiving child pornography on June 11, 2013.

At sentencing on September 13, 2013, the district court applied the U.S.S.G. § 2G2.1 guideline on a cross reference from § 2G2.2. Section 2G2.2 is the applicable guideline for receipt of child pornography, a nd § 2G2.2(c)(1) indicates that § 2G2.1 applies “[i]f the offense involved causing, . . . [or] permitting . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” Because of Marin' s admission that he had phot ographed himself in Mexico sexually abusing his eleven year old ne phew, the district court applied the base

2 The Honorable James E. Gritzner, Chief Judge, United States District Court for the Southern District of Iowa.
-2-offense level of 32 required by § 2G2.1. It added a f our level enhancement under § 2G2.1(b)(1)(A) for an offense involving a minor who has not yet attained the age of twelve years, a two level enhancem ent under § 2G2.1(b)(2)(A) for an offense involving the commission of a sexual act or sexual contact, and a two level enhancement under § 2G2.1(b)(5) for an o ffense by a parent, relative, or legal guardian of the minor.

Marin objected to the use of the § 2G2.2( c)(1) cross reference to apply § 2G2.1 and its enhancements on the grounds that th e visual depictions of his sexual activity with his nephew were merely collateral to the isolated, unc orroborated incident which occurred more than eight years earlier. The district court ove rruled his objections, however, and found that the circumstances supported the application of the § 2G2.1 guideline and its enhancements. With a total offense level of 43 and a criminal history of I, Marin's advisory guideline range wa s life. Because the maximum statutorily authorized sentence for receipt of child pornography was less than the advisory guideline range, the district court applied § 5G1.1(a) and reduced Marin's guideline range to the statutory maximum of twenty years. Marin then requested a downward departure and variance based on his age, physical condition, and lack of criminal history. The district court declined to depart or vary downward and imposed a sentence of twenty years. Marin now appeals.

Marin first argues that the district court erred in calculating his advisory guideline range. We review the districtcourt’s application of the sentencing guidelines de novo. United States v. Flying By , 511 F.3d 773, 778 (8th Cir. 2007). Marin contends that it was improper to apply U.S.S.G. § 2G2.1 (on cross reference from § 2G2.2) and to add e nhancements under § 2G2.1(b)(1 )(A), (b)(2)(A), and (b)(5) because his underlying sexual act occurred outside of the United States in Mexico. The Seventh Circuit has considered and re jected the same territorial issue which Marin raises. See United States v. Dawn , 129 F.3d 878 (7th Cir. 1997). The defendant argued in Dawn that his production of child pornography in Honduras could

-3-not lead to the application of § 2G2.1 because the underlying activity occurred outside of the United States. Id. at 880–81. The Seventh Circuit concluded however that §§ 2G2.1 and 2G2.2 contain no geographic limitation but rather depend “upon the factual and logical relationship between th e offense of convicti on and the defendant's other acts, wherever they may have occurred.” Id. at 882. Other circuits have reached the same conclusion, see United States v. Castro-Valenzuela , 304 F. App'x 986, 992 (3d Cir. 2008) (concluding that extraterrito rial rape and creati on of child pornography was properly considered in sentencing).

Despite acknowledging that he was charged under 18 U.S.C. § 2252, Marin relies on 18 U.S.C. §§ 2242 and 2243. Those sections apply to sexual abuse and sexual abuse of a minor by those "in the sp ecial maritime and territorial jurisdiction of the United States," as well as by those in prisons and other federal institutions. It is uncontested however that Marin was char ged and pled guilty to receipt of child pornography under § 2252, a statute containing no such geographic limitation. We conclude that the district court properly applied the cross refere nce to § 2G2.1 and its related sentencing enhancements based on Marin's admission that he photographed himself having sexual inte rcourse with his eleven year old nephew. See Dawn , 129 F.3d at 882.

Marin alternatively contends that it wa s error to apply the enhancement under § 2G2.1(b)(1)(A), which app lies to offenses involving a minor who has not attained the age of twelve years. He points out th at the only evidence of his nephew’s age was his own admission that the boy was eleven. A sentencing court makes findings about relevant conduct by a pr eponderance of the evidence, and ourreview is for clear error. United States v. Boyce , 564 F.3d 911, 915 (8th Cir. 2009). The district court may rely on factual allegations in a presentence report even though the defendant has objected to the report's recommendation based on those facts as long as he has not objected to the facts themselves. United States v. Bledsoe , 445 F.3d 1069, 1073 (8th Cir. 2006). Marin made no objection to the factual alle gation that he admitted to having abused

-4-his eleven year old nephew. Moreover, th e record provides no evidence that conflicts with Marin's voluntary admission regarding hi s nephew’s age. We conclude that the district court did not clearly err in finding that the victim had been under twelve years of age at the time of the sexual offens e so as to apply the § 2G2.1(b)(1)(A) enhancement.

Marin also contends that the senten cing court committed procedural error in imposing the statutory maximum by not adequately explaining its reasoning and by weighing factors inappropriately. We re view the procedural and substantive reasonableness of a sentence under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). A sentencing court abuses its discretion in imposing a sentence under 18 U.S.C. § 3553(a) if it fails to consider a rele vant factor, gives significant weight to an irrelevant factor , or commits a clear error of judgment in weighing the appropriate factors. United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009). We do not require the district court to provide a mechanical recitation of all the § 3553(a) factors, but rather to show clearly that it consid ered those factors in determining the sentence. Id. The district court found that Marin's sexual abuse of his nephew made his crime more serious than the average conviction for receipt of child pornography, noting the known risk of recidivism for defendants who sexually abuse children. Its comments show that the court considered relevant § 3553(a) factors, such as the seriousness of the offe nse and the need to protect the public from further crimes of the defendant. Given thatthe district court did not consider any impermissible factors and carefully weighed all of the relevant factors and evidence, we conclude that it did not abuse its disc retion in sentencing Marin to twenty years.

In addition Marin argues that his sentence is substantively unreasonable because the district court failed to vary or depart from his guideline range sentence of twenty years. On appellate review we may apply a presumption of reasonableness to a sentence within the guideline range, Gall , 552 U.S. at 51, and we conclude that the district court did not abuse its discretion in sentencing Marin to twenty years. Marin's

-5-calculated guideline range of life was redu ced to the statutory maximum of twenty years under § 5G1.1(a), and the court carefu lly considered the statutory sentencing factors. See Gall , 552 U.S. at 51.

In sum, the district court did not err in cross referencing and applying enhancements under U.S.S.G. § 2G2.1 base d on Marin's admission about his prior sexual conduct in Mexico. The court did not clearly err by finding that Marin's nephew was under the age of twelve at the time of the incident. Finally, the court reasonably applied the § 3553(a) factors in sentencing Marin to the guideline range of twenty years imprisonment. Accordingl y, we affirm the judgment of the district
court.

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