USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 1 of 6
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4731
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS RAMIREZ AVILA,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:22-cr-00122-RJC-SCR-1)
Argued: January 28, 2025 Decided: April 14, 2025
Before GREGORY, WYNN, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Heytens wrote the opinion, which Judge Gregory and Judge Wynn joined.
ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, Ann L. Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 2 of 6
TOBY HEYTENS, Circuit Judge:
The Federal Sentencing Guidelines prescribe an enhanced offense level if “the
offense involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct.” U.S.S.G. § 2G2.2(c)(1). Luis Avila asserts the district
court committed procedural error in increasing his offense level under that provision
because the court’s factual findings were legally insufficient to support its application. We
agree and thus vacate and remand for resentencing.
I.
In 2021, Avila pleaded guilty to three counts of violating 18 U.S.C. § 2252A(a)(2)
and (b)(1). Because his offenses involved “possessing material involving the sexual
exploitation of a minor” within the meaning of Section 2G2.2 of the Federal Sentencing
Guidelines, the probation officer calculated Avila’s advisory guideline range using that
provision. Section 2G2.2 starts with a base offense level of 22 for Avila’s offenses of
conviction, see U.S.S.G. § 2G2.2(a)(2), and outlines several fact-specific enhancements
that together increased Avila’s offense level to 35, see § 2G2.2(b).
Avila challenges what happened next. Section 2G2.2(c)(1)—captioned
“Cross Reference”—directs district courts to use a different provision to calculate a
defendant’s offense level if certain requirements are satisfied and “the resulting offense
level is greater” than Section 2G2.2 would otherwise prescribe. The probation officer
concluded the cross-reference was triggered here because using the other provision would
generate a higher offense level (38) and Avila’s “offense involved causing, transporting,
2 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 3 of 6
permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G.
§ 2G2.2(c)(1). The probation officer recommended a three-level decrease for acceptance
of responsibility, resulting in a guidelines range of 168 to 210 months.
Avila challenged the use of the cross-reference, both in written objections to the
presentence report and during the sentencing hearing. His argument was “that nothing [he]
did caused the sexually explicit material” to be created in the first place because the victims
were sending the same videos to other people and the government could not prove that his
requests were what prompted the victims to make them. JA 32 (emphasis added). In
response, the government asserted “that ‘caused’ and ‘involved’ are quite broad terms” and
that the evidence showed Avila “wanted videos of certain conduct and offered to pay, and
did pay,” one of the victims “for those videos.” JA 40. “[B]y coercing and enticing [the
victim] with the money,” the government argued, Avila “caused [the victim] to make the
videos and send the videos to him.” Id.
The district court overruled Avila’s objection and applied the cross-reference. The
court’s explanation reads, in full:
I’m going to overrule the objection. I do think that the language of the cross- reference is quite broad involving causing, transporting, permitting, or offering, or seeking by notice or advertisement a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live, visual depiction of such conduct.
It does appear to the Court that this is exactly the offense conduct involved in the factual basis, that there was money offered for specific conduct that meets the elements of the cross-reference (c)(1).
3 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 4 of 6
JA 40−41. The district court sentenced Avila to 132 months of imprisonment followed by
30 years of supervised release.
II.
The district court procedurally erred in sentencing Avila because the court’s factual
findings were legally insufficient to support application of the cross-reference. The proper
interpretation of a Guidelines provision is a legal question that we review de novo.
See United States v. Mitchell, 120 F.4th 1233, 1237 (4th Cir. 2024). Applying that
standard, we conclude that what the district court found—offering money for specific
conduct—and “causing” that conduct to happen are different things and that proving the
former is not enough to prove the latter. We thus vacate the district court’s judgment and
remand for resentencing.
The government’s concessions streamline our task. Although the cross-reference is
triggered by four actions—“causing, transporting, permitting, or offering or seeking by
notice or advertisement,” U.S.S.G. § 2G2.2(c)(1)—the government admits it only raised a
“causing” theory before the district court and is only raising such a theory before us.
See Oral Arg. 21:50−22:00. We thus begin by determining what it means for an offense to
“involve[] causing . . . a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct.” U.S.S.G. § 2G2.2(c)(1).
Section 2G2.2(c)(1) does not define “causing,” so we look to “the[] ordinary,
contemporary, common meaning” of that term. Johnson v. Zimmer, 686 F.3d 224, 232
(4th Cir. 2012) (quotation marks removed). The parties agree that “cause” means to “make
(something, typically something bad) happen” and that the “cause” of something is “a
4 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 5 of 6
person or thing that gives rise to an action, phenomenon, or condition.” Cause, New Oxford
American Dictionary 276−77 (3d ed. 2010). The government also agrees that—at least in
common parlance—a person’s action cannot “cause” something that happened before that
action was taken. See Oral Arg. 22:45−23:22. Thus, the question before us is whether the
district court found that at least one victim made sexually explicit videos after and in
response to Avila’s request.
We conclude the district court made no such finding.
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USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 1 of 6
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4731
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS RAMIREZ AVILA,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:22-cr-00122-RJC-SCR-1)
Argued: January 28, 2025 Decided: April 14, 2025
Before GREGORY, WYNN, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Heytens wrote the opinion, which Judge Gregory and Judge Wynn joined.
ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, Ann L. Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 2 of 6
TOBY HEYTENS, Circuit Judge:
The Federal Sentencing Guidelines prescribe an enhanced offense level if “the
offense involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct.” U.S.S.G. § 2G2.2(c)(1). Luis Avila asserts the district
court committed procedural error in increasing his offense level under that provision
because the court’s factual findings were legally insufficient to support its application. We
agree and thus vacate and remand for resentencing.
I.
In 2021, Avila pleaded guilty to three counts of violating 18 U.S.C. § 2252A(a)(2)
and (b)(1). Because his offenses involved “possessing material involving the sexual
exploitation of a minor” within the meaning of Section 2G2.2 of the Federal Sentencing
Guidelines, the probation officer calculated Avila’s advisory guideline range using that
provision. Section 2G2.2 starts with a base offense level of 22 for Avila’s offenses of
conviction, see U.S.S.G. § 2G2.2(a)(2), and outlines several fact-specific enhancements
that together increased Avila’s offense level to 35, see § 2G2.2(b).
Avila challenges what happened next. Section 2G2.2(c)(1)—captioned
“Cross Reference”—directs district courts to use a different provision to calculate a
defendant’s offense level if certain requirements are satisfied and “the resulting offense
level is greater” than Section 2G2.2 would otherwise prescribe. The probation officer
concluded the cross-reference was triggered here because using the other provision would
generate a higher offense level (38) and Avila’s “offense involved causing, transporting,
2 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 3 of 6
permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G.
§ 2G2.2(c)(1). The probation officer recommended a three-level decrease for acceptance
of responsibility, resulting in a guidelines range of 168 to 210 months.
Avila challenged the use of the cross-reference, both in written objections to the
presentence report and during the sentencing hearing. His argument was “that nothing [he]
did caused the sexually explicit material” to be created in the first place because the victims
were sending the same videos to other people and the government could not prove that his
requests were what prompted the victims to make them. JA 32 (emphasis added). In
response, the government asserted “that ‘caused’ and ‘involved’ are quite broad terms” and
that the evidence showed Avila “wanted videos of certain conduct and offered to pay, and
did pay,” one of the victims “for those videos.” JA 40. “[B]y coercing and enticing [the
victim] with the money,” the government argued, Avila “caused [the victim] to make the
videos and send the videos to him.” Id.
The district court overruled Avila’s objection and applied the cross-reference. The
court’s explanation reads, in full:
I’m going to overrule the objection. I do think that the language of the cross- reference is quite broad involving causing, transporting, permitting, or offering, or seeking by notice or advertisement a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live, visual depiction of such conduct.
It does appear to the Court that this is exactly the offense conduct involved in the factual basis, that there was money offered for specific conduct that meets the elements of the cross-reference (c)(1).
3 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 4 of 6
JA 40−41. The district court sentenced Avila to 132 months of imprisonment followed by
30 years of supervised release.
II.
The district court procedurally erred in sentencing Avila because the court’s factual
findings were legally insufficient to support application of the cross-reference. The proper
interpretation of a Guidelines provision is a legal question that we review de novo.
See United States v. Mitchell, 120 F.4th 1233, 1237 (4th Cir. 2024). Applying that
standard, we conclude that what the district court found—offering money for specific
conduct—and “causing” that conduct to happen are different things and that proving the
former is not enough to prove the latter. We thus vacate the district court’s judgment and
remand for resentencing.
The government’s concessions streamline our task. Although the cross-reference is
triggered by four actions—“causing, transporting, permitting, or offering or seeking by
notice or advertisement,” U.S.S.G. § 2G2.2(c)(1)—the government admits it only raised a
“causing” theory before the district court and is only raising such a theory before us.
See Oral Arg. 21:50−22:00. We thus begin by determining what it means for an offense to
“involve[] causing . . . a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct.” U.S.S.G. § 2G2.2(c)(1).
Section 2G2.2(c)(1) does not define “causing,” so we look to “the[] ordinary,
contemporary, common meaning” of that term. Johnson v. Zimmer, 686 F.3d 224, 232
(4th Cir. 2012) (quotation marks removed). The parties agree that “cause” means to “make
(something, typically something bad) happen” and that the “cause” of something is “a
4 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 5 of 6
person or thing that gives rise to an action, phenomenon, or condition.” Cause, New Oxford
American Dictionary 276−77 (3d ed. 2010). The government also agrees that—at least in
common parlance—a person’s action cannot “cause” something that happened before that
action was taken. See Oral Arg. 22:45−23:22. Thus, the question before us is whether the
district court found that at least one victim made sexually explicit videos after and in
response to Avila’s request.
We conclude the district court made no such finding. The court described “the
language of the cross-reference” as “quite broad,” quoted the entire provision almost
verbatim, and then stated: “It does appear to the Court that this is exactly the offense
conduct involved in the factual basis, that there was money offered for specific conduct
that meets the elements of the cross-reference (c)(1).” JA 40−41. But the district court said
nothing else. And the fact that Avila offered money for specific conduct does not establish
that any victim made a video after—much less in response to—Avila’s requests.
When asked about this point at oral argument, the government replied by citing this
Court’s statement in United States v. Gross, that, “[a]bsent evidence to the contrary, we
presume that the district court knew the law and applied it in making its decisions.” 90 F.4th
715, 721 (4th Cir. 2024). But that presumption applies when there is no dispute about what
“the correct legal standard” is and the disagreement involves whether the district court said
enough to make clear it was applying the right standard. Id. This case, in contrast, presents
a situation in which Gross indicates no such presumption is appropriate: one where a
district court’s explanation for its ruling suggests “it was relying on a rule of general
5 USCA4 Appeal: 23-4731 Doc: 60 Filed: 04/14/2025 Pg: 6 of 6
application that differed from the one set out in the Guidelines.” Id.
The government also argues that “[t]he facts in the presentence report the district
court properly adopted” would have supported a “finding” that at least one victim made at
least some videos after and in direct response to Avila’s requests. U.S. Br. 11. But whether
the district court could have made a finding that would have survived appellate review is
different from whether the court actually made that finding. Just as “we are not permitted
to guess at the district court’s rationale by searching the record for statements that might
explain a sentence,” United States v. Provance, 944 F.3d 213, 219 (4th Cir. 2019)
(alterations and quotation marks removed), we may not affirm a district court’s judgment
based on factual findings the court never made. And because “we are a court of review, not
first view,” Biggs v. North Carolina Dep’t of Pub. Safety, 953 F.3d 236, 243 (4th Cir.
2020), we vacate and remand for resentencing without considering whether the record
could have supported the required finding under the correct legal standard.
* * *
A finding that Avila offered money for videos depicting specific conduct does not
establish that he caused anyone to engage in that conduct within the meaning of Guidelines
§ 2G2.2(c)(1). We thus vacate the district court’s judgment and remand for resentencing.
SO ORDERED