PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-3134

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UNITED STATES OF AMERICA

v.

LORENZO AGUIRRE-MIRON,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-18-cr-00521-001)

District Judge: Honorable Eduardo C. Robreno

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Submitted Under Third Circuit L.A.R. 34.1(a):

September 24, 2020

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Before: AMBRO, PORTER, and ROTH,

Circuit Judges.

(Filed: February 23, 2021)
2

Abigail E. Horn

Brett G. Sweitzer

Leigh M. Skipper

Federal Community Defender Office

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Robert A. Zauzmer

Megan Curran

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION

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PORTER, Circuit Judge.

Lorenzo Aguirre-Miron pleaded guilty to five childpornography crimes. When sentencing Aguirre-Miron, the 

District Court failed to group certain counts as required by the 

United States Sentencing Guidelines. The District Court’s 

failure was a plain error that affected Aguirre-Miron’s 

substantial rights, and, as explained below, we will exercise 

our discretion to cure the plain error. We will therefore vacate

Aguirre-Miron’s sentence and remand for resentencing.
3

I

Aguirre-Miron pleaded guilty to five child-pornography 

offenses: three counts of production, in violation of 18 U.S.C. 

§ 2251(a), (e); one count of receipt, in violation of 18 U.S.C. 

§ 2252(a)(2), (b)(1); and one count of possession, in violation 

of 18 U.S.C. § 2252(a)(4)(B), (b)(2).1 At sentencing, the 

District Court adopted the Sentencing Guidelines calculations 

from the Presentence Investigation Report (“PSR”).

The Sentencing Guidelines require grouping of certain 

closely related counts. The PSR grouped Aguirre-Miron’s 

receipt and possession counts. But the PSR did not group 

Aguirre-Miron’s three production counts; nor did it group the 

production counts with the receipt and possession counts. 

Thus, the PSR listed four groups of offenses.

After grouping the counts, the PSR determined that the 

offense level for the production counts was 38 and the offense 

level for the receipt and possession counts was 40. Relevant

here, the receipt and possession offense level of 40 included a 

five-level pattern enhancement under U.S.S.G. § 2G2.2(b)(5).

The District Court applied the pattern enhancement because 

Aguirre-Miron “engaged in a pattern of activity involving the 

sexual abuse or exploitation of a minor” when he produced

child pornography. U.S.S.G. § 2G2.2(b)(5).

1 The conduct prompting Aguirre-Miron’s indictment included 

the production of three video depictions of child pornography 

of the same minor on three different occasions, the knowing 

receipt of one image of child pornography, and the storage of

thousands of pornographic images depicting children on two 

phones and in a Google account.
4

After calculating Aguirre-Miron’s combined offense 

level under U.S.S.G. § 3D1.4 and accounting for other 

enhancements and reductions, the PSR arrived at an offense 

level of 46, which was capped by the Sentencing Guidelines at 

43. See U.S.S.G. ch. 5 pt. A app. n.2. The resulting Guidelines 

sentence was 130 years’ imprisonment—effectively life 

imprisonment.2 The District Court then granted a one-level

downward variance to offense level 42, which produced a 

Guidelines range of 360 months to life imprisonment. Finally, 

the District Court sentenced Aguirre-Miron to 360 months’ 

imprisonment.3

Aguirre-Miron timely appealed. He challenges the 

PSR’s four-level enhancement under U.S.S.G. § 3D1.4 

because he believes that the production counts should have 

been grouped with his receipt and possession counts under 

U.S.S.G. § 3D1.2(c).

II4

The only issue on appeal is whether the District Court 

miscalculated the Sentencing Guidelines range by not grouping

the production counts with the receipt and possession counts

under U.S.S.G. § 3D1.2(c). Because Aguirre-Miron did not 

2 We adopt the parties’ practice of referring to the top of the 

Guidelines range as life imprisonment.

3 Aguirre-Miron’s sentence was 360 months’ imprisonment on 

each of his production counts, 240 months’ imprisonment on

his receipt count, and 240 months’ imprisonment on his 

possession count, each to run concurrently.

4 The District Court had subject-matter jurisdiction under 18 

U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. 

§ 1291 and 18 U.S.C. § 3742(a).
5

object to the Guidelines range during his sentencing, we review

his claim for plain error under Federal Rule of Criminal 

Procedure 52(b). United States v. Flores-Mejia, 759 F.3d 253, 

256 (3d Cir. 2014) (en banc).

Under plain-error review, the defendant bears the 

burden of persuasion. United States v. Olano, 507 U.S. 725, 

734–35 (1993). He must show that there is: (1) an error, (2) 

that is plain, and (3) that the plain error affects his substantial 

rights. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 

1904 (2018). If all three conditions are met, we may exercise 

our discretion to correct the forfeited error if it “seriously 

affects the fairness, integrity[,] or public reputation of judicial

proceedings.” Id. at 1905 (citation omitted).

A

At Olano prong one, “there must be an error that has not 

been intentionally relinquished or abandoned.” Id. at 1904 

(citation omitted). Because Aguirre-Miron did not 

intentionally relinquish his current challenge, our first task is

to determine whether the District Court committed an error by 

failing to group counts under § 3D1.2(c).

A district court’s first step at sentencing is “to calculate 

a defendant’s Guidelines sentence.” United States v. Gunter, 

462 F.3d 237, 247 (3d Cir. 2006). When a defendant is 

convicted of more than one count, a district court’s calculation 

involves grouping together “[a]ll counts involving 

substantially the same harm.” U.S.S.G. § 3D1.2. In relevant 

part, counts involve substantially the same harm “[w]hen one 

of the counts embodies conduct that is treated as a specific 

offense characteristic in, or other adjustment to, the guideline 

applicable to another of the counts.” U.S.S.G. § 3D1.2(c).
6

A pattern enhancement under U.S.S.G. § 2G2.2(b)(5) is 

a specific offense characteristic in child pornography cases. 

See U.S.S.G. § 2G2.2(b) (“Specific Offense Characteristics” 

heading). So, if a child-pornography defendant’s offense level 

is increased five levels under § 2G2.2(b)(5) because he 

“engaged in a pattern of activity involving the sexual abuse or 

exploitation of a minor,” then the counts leading to the pattern 

enhancement must be grouped under § 3D1.2(c).

Here, the offense level of Aguirre-Miron’s receipt and 

possession counts was increased five levels because of a 

pattern enhancement based on the conduct embodied in his 

production counts. If the District Court had properly grouped 

the counts, Aguirre-Miron’s final offense level would have 

been 42, resulting in a Guidelines range of 360 months to life

imprisonment. Thus, by failing to group Aguirre-Miron’s 

production counts with the receipt and possession counts, the 

District Court erred.

B

At Olano prong two, we must determine whether a 

district court’s error was “plain—that is to say, clear or 

obvious.” Rosales-Mireles, 138 S. Ct. at 1904 (citation 

omitted). The error must be clear under current law (either at 

the time of sentencing or on appeal). See Johnson v. United 

States, 520 U.S. 461, 467–68 (1997). The District Court’s error 

was clear or obvious for two reasons.

First is the plain meaning of the Sentencing Guidelines.

The Sentencing Guidelines require “[a]ll counts involving 

substantially the same harm” to be grouped. U.S.S.G. § 3D1.2. 

And counts involve substantially the same harm “[w]hen one 

of the counts embodies conduct that is treated as a specific 
7

offense characteristic in, or other adjustment to, the guideline 

applicable to another of the counts.” U.S.S.G. § 3D1.2(c). The 

conduct embodied by Aguirre-Miron’s production counts was 

a specific offense characteristic leading to a pattern 

enhancement, so the production counts had to be grouped with 

Aguirre-Miron’s receipt and possession counts under U.S.S.G. 

§ 3D1.2(c). Cf. United States v. Stinson, 734 F.3d 180, 187 (3d 

Cir. 2013) (“That error was clear in light of the plain language 

of the relevant Guidelines provision.”).

Second, our precedent requires grouping in this case. 

When addressing the same Guidelines provision, we explained 

that a district court’s finding that certain exploitative conduct 

constituted a pattern enhancement “require[d] grouping under 

U.S.S.G. § 3D1.2(c).” United States v. Ketcham, 80 F.3d 789, 

794 (3d Cir. 1996).5

The government argues that Ketcham is inapplicable for 

three reasons. First, the government contends that Ketcham is 

irrelevant because it did not involve a production count. But

the underlying offense does not change the interaction between

§ 3D1.2(c) and § 2G2.2(b)(5).

Next, the government argues that Ketcham’s statements 

about grouping are dicta because we held that the district court 

had improperly applied the pattern enhancement that triggered 

the grouping requirement. Ketcham, 80 F.3d at 795. The appeal 

specifically challenged the District Court’s grouping of counts. 

See id. at 790. We reached the pattern-enhancement issue in 

5 Although United States v. Ketcham addressed U.S.S.G. 

§ 2G2.2(b)(4), that provision contained the exact language as 

the current § 2G2.2(b)(5). Compare 80 F.3d 789, 793 (3d Cir. 

1996), with U.S.S.G. § 2G2.2(b)(5).
8

the alternative only because the District Court properly 

grouped the counts. But even if Ketcham’s statements were 

dicta, the case shows that the plain language of the Sentencing 

Guidelines requires grouping of counts in a case like AguirreMiron’s.

Lastly, the government asserts that it was not AguirreMiron’s production counts that led to the pattern enhancement,

but rather it was the conduct underlying those counts. Although 

the PSR could be read as supporting this approach, the

grouping requirement is not triggered merely by conduct. 

Rather, it is triggered “[w]hen one of the counts embodies 

conduct that is treated as a specific offense characteristic.” 

U.S.S.G. § 3D1.2(c) (emphasis added). For this reason, the 

government’s argument fails.

C

An error affects a defendant’s substantial rights under 

Olano prong three if the defendant “show[s] a reasonable 

probability that, but for the error, the outcome of the 

proceeding would have been different.” Rosales-Mireles, 138 

S. Ct. at 1904–05 (internal quotation marks and citation 

omitted). Yet, even though the defendant ordinarily carries the 

burden of persuasion, “[w]hen [he] is sentenced under an 

incorrect Guidelines range—whether or not [his] ultimate 

sentence falls within the correct range—the error itself can, and 

most often will, be sufficient” to satisfy the third prong of 

plain-error review. Molina-Martinez v. United States, 136 S. 

Ct. 1338, 1345 (2016).6“Absent unusual circumstances,” the 

6 Based on this precedent, it is irrelevant that the District Court 

granted a downward variance and sentenced Aguirre-Miron 
9

defendant need not show more than that he was sentenced 

under a plainly erroneous Guidelines range. Id. at 1347.

So, in the context of an unpreserved objection to a

plainly incorrect Guidelines range at sentencing, we presume

prejudice. The government is then “free to point to parts of the 

record—including relevant statements by the judge—to 

counter any ostensible showing of prejudice the defendant may 

make.” Id. (internal quotation marks and citation omitted).

The government raises two arguments that unusual 

circumstances show that Aguirre-Miron’s substantial rights 

were not affected by the District Court’s plainly erroneous 

Guidelines calculation.

First, the government argues that grouping is 

inappropriate because the harms arising from Aguirre-Miron’s 

production counts and receipt and possession counts are 

different. But this argument fails because, under § 3D1.2, 

counts involve “substantially the same harm” if they embody 

conduct that is a specific offense characteristic of another 

count. See U.S.S.G. § 3D1.2(c).

Second, the government asserts that, had Aguirre-Miron 

raised his grouping objection during sentencing, it “would have 

argued that [§] 3D1.2(c) only required grouping of two of the 

production counts, as only two instances were required to 

support application of the pattern enhancement.” Appellee’s 

Br. 37. But this counterfactual lacks a basis in the record. So 

we will not consider it for the first time on appellate review.

under the Guidelines range he now asks for (360 months to life 

imprisonment). 
10

The government thus fails to point to record evidence to 

overcome the presumption that the District Court’s plain 

sentencing error affected Aguirre-Miron’s substantial rights.

D

Having found that the District Court committed a plain 

error that affected Aguirre-Miron’s substantial rights, we must 

decide whether to exercise our discretion to cure the plain 

error. We may exercise our discretion if an error “seriously 

affects the fairness, integrity[,] or public reputation of judicial

proceedings.” Rosales-Mireles, 138 S. Ct. at 1905 (citation 

omitted). 

Here, the District Court sentenced Aguirre-Miron under 

an incorrect sentencing Guidelines range. A citizen might bear 

a “diminished view of the judicial process and its integrity if 

courts refused to correct” this kind of plain error. Id. at 1908. 

And “correcting sentencing errors is far less burdensome than 

a retrial, or other jury proceedings,” and does not demand 

“such a high degree of caution.” United States v. Payano, 930 

F.3d 186, 199 (3d Cir. 2019) (quoting Rosales-Mireles, 138 S. 

Ct. at 1909) (internal quotation marks omitted). Because the 

District Court’s plain error does not upset a jury’s verdict, 

affects only sentencing, and can be fixed on remand without 

taxing the District Court, we will exercise our discretion to cure 

the plain error.

* * *

Because we exercise our discretion to cure the District 

Court’s plain error, we will vacate the District Court’s sentence 

and remand for resentencing.