19-1764-cr United States v. Quiroz-Martinez
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 26th day of August, two thousand twenty. 4 5 PRESENT: JOSÉ A. CABRANES, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 19-1764 15 16 JOSE ANTONIO QUIROZ-MARTINEZ, 17 18 Defendant-Appellant. 19 ------------------------------------------------------------------ 20 21 22 1 FOR DEFENDANT-APPELLANT: Jon L. Schoenhorn, Jon L. 2 Schoenhorn & Associates, 3 LLC, Hartford, CT. 4 5 FOR APPELLEE: Patrick J. Doherty, Sandra S. 6 Glover, Assistant United States 7 Attorneys, for John H. 8 Durham, United States 9 Attorney for the District of 10 Connecticut, New Haven, CT.
12 Appeal from a judgment of the United States District Court for the District
13 of Connecticut (Alvin W. Thompson, Judge).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the judgment of the District Court is AFFIRMED.
16 Jose Antonio Quiroz-Martinez appeals from a June 12, 2019 judgment of
17 conviction entered by the District Court upon his plea of guilty to using an
18 interstate facility to entice a minor to engage in sexual activity, in violation of 18
19 U.S.C. § 2422(b). Quiroz-Martinez was sentenced principally to a term of
20 imprisonment of 270 months. On appeal, Quiroz-Martinez argues that his
21 sentence is procedurally and substantively unreasonable and that the
22 Government breached its plea agreement by advocating for a higher Guidelines
2 1 range than the agreement provided. We assume the parties’ familiarity with the
2 underlying facts and prior record of proceedings, to which we refer only as
3 necessary to explain our decision to affirm.
4 1. Guidelines Enhancement Under § 4B1.5
5 We review questions of law as to the operation of the Guidelines de novo
6 and findings of fact for clear error, see United States v. Vasquez, 389 F.3d 65, 68
7 (2d Cir. 2004), ever mindful of the teachings of the Supreme Court that the
8 Guidelines are advisory, see United States v. Cavera, 550 F.3d 180, 187 (2d Cir.
9 2008) (en banc) (citing United States v. Booker, 543 U.S. 220, 245 (2005) (rendering
10 the Guidelines “effectively advisory”)). Quiroz-Martinez argues that the District
11 Court improperly applied a five-level enhancement under § 4B1.5(b) of the
12 Sentencing Guidelines because the Government failed to establish that he
13 engaged in sexual misconduct with a minor on more than one occasion. Section
14 4B1.5(b) provides that the enhancement applies when “the defendant engaged in
15 a pattern of activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b). A
16 pattern of activity exists “if on at least two separate occasions, the defendant
17 engaged in prohibited sexual conduct with a minor.” Id. cmt. n.4(B)(i). The
3 1 offense of conviction can constitute one of the two occasions of prohibited sexual
2 conduct. See United States v. Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012).
3 The District Court’s application of the enhancement here rested on its
4 factual finding that Quiroz-Martinez had enticed the minor involved in the
5 offense of conviction to send sexually explicit photographs on three different
6 days, which it treated as three separate occasions.
7 We need not decide whether an offense of conviction that consists of
8 repeated acts of prohibited sexual misconduct against the same minor in a short
9 period of time (here, enticing the same minor to send sexually explicit
10 photographs on three different days over the course of nineteen days) satisfies
11 the “pattern of activity” requirement of § 4B1.5(b). “[W]e may affirm a
12 Guidelines enhancement on any basis for which there is a record sufficient to
13 permit conclusions of law, including grounds upon which the district court did
14 not rely.” Broxmeyer, 699 F.3d at 287 (quotation marks omitted). In this case, the
15 District Court found that Quiroz-Martinez had also engaged in two prior,
16 separate, and uncharged incidents of prohibited sexual misconduct against two
17 minors other than the minor involved in the offense of conviction. As we explain
4 1 below, these findings were not clearly erroneous. Thus, together with the offense
2 of conviction (and even without it), these two uncharged incidents satisfy the
3 pattern of activity requirement under § 4B1.5(b). We affirm the District Court’s
4 application of the five-level enhancement on that basis.
5 2. Factual Findings Under 18 U.S.C. § 3553(a)
6 Quiroz-Martinez also challenges the District Court’s factual findings that
7 he committed the two uncharged incidents and that he possessed child
8 pornography on his cellphone. The District Court relied on these findings in
9 imposing the final sentence under 18 U.S.C. § 3553(a).
10 Based on our review of the record, we conclude that these findings were
11 not clearly erroneous. After giving Quiroz-Martinez the opportunity to
12 challenge the sexual assault allegations as well as the claim that he possessed
13 child pornography, the District Court, pointing to the Presentence Report and
14 other materials, thoroughly explained why these prior incidents of misconduct
15 were established by a preponderance of the evidence.
16 3. Substantive Reasonableness
17 Quiroz-Martinez separately argues that his sentence was substantively
5 1 unreasonable primarily because the District Court assigned undue weight to the
2 uncharged allegations of sexual misconduct and improperly applied the
3 § 4B1.5(b)(1) sentencing enhancement. We will “set aside a district court’s
4 substantive determination only in exceptional cases where the trial court’s
5 decision cannot be located within the range of permissible decisions.” Cavera,
6 550 F.3d at 189 (quotation marks omitted). We have already rejected Quiroz-
7 Martinez’s procedural challenge to the sentencing enhancement and do not
8 revisit the issue in the context of substantive reasonableness. We now also
9 conclude that the District Court adequately considered the factors listed in 18
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19-1764-cr United States v. Quiroz-Martinez
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 26th day of August, two thousand twenty. 4 5 PRESENT: JOSÉ A. CABRANES, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 19-1764 15 16 JOSE ANTONIO QUIROZ-MARTINEZ, 17 18 Defendant-Appellant. 19 ------------------------------------------------------------------ 20 21 22 1 FOR DEFENDANT-APPELLANT: Jon L. Schoenhorn, Jon L. 2 Schoenhorn & Associates, 3 LLC, Hartford, CT. 4 5 FOR APPELLEE: Patrick J. Doherty, Sandra S. 6 Glover, Assistant United States 7 Attorneys, for John H. 8 Durham, United States 9 Attorney for the District of 10 Connecticut, New Haven, CT.
12 Appeal from a judgment of the United States District Court for the District
13 of Connecticut (Alvin W. Thompson, Judge).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the judgment of the District Court is AFFIRMED.
16 Jose Antonio Quiroz-Martinez appeals from a June 12, 2019 judgment of
17 conviction entered by the District Court upon his plea of guilty to using an
18 interstate facility to entice a minor to engage in sexual activity, in violation of 18
19 U.S.C. § 2422(b). Quiroz-Martinez was sentenced principally to a term of
20 imprisonment of 270 months. On appeal, Quiroz-Martinez argues that his
21 sentence is procedurally and substantively unreasonable and that the
22 Government breached its plea agreement by advocating for a higher Guidelines
2 1 range than the agreement provided. We assume the parties’ familiarity with the
2 underlying facts and prior record of proceedings, to which we refer only as
3 necessary to explain our decision to affirm.
4 1. Guidelines Enhancement Under § 4B1.5
5 We review questions of law as to the operation of the Guidelines de novo
6 and findings of fact for clear error, see United States v. Vasquez, 389 F.3d 65, 68
7 (2d Cir. 2004), ever mindful of the teachings of the Supreme Court that the
8 Guidelines are advisory, see United States v. Cavera, 550 F.3d 180, 187 (2d Cir.
9 2008) (en banc) (citing United States v. Booker, 543 U.S. 220, 245 (2005) (rendering
10 the Guidelines “effectively advisory”)). Quiroz-Martinez argues that the District
11 Court improperly applied a five-level enhancement under § 4B1.5(b) of the
12 Sentencing Guidelines because the Government failed to establish that he
13 engaged in sexual misconduct with a minor on more than one occasion. Section
14 4B1.5(b) provides that the enhancement applies when “the defendant engaged in
15 a pattern of activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b). A
16 pattern of activity exists “if on at least two separate occasions, the defendant
17 engaged in prohibited sexual conduct with a minor.” Id. cmt. n.4(B)(i). The
3 1 offense of conviction can constitute one of the two occasions of prohibited sexual
2 conduct. See United States v. Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012).
3 The District Court’s application of the enhancement here rested on its
4 factual finding that Quiroz-Martinez had enticed the minor involved in the
5 offense of conviction to send sexually explicit photographs on three different
6 days, which it treated as three separate occasions.
7 We need not decide whether an offense of conviction that consists of
8 repeated acts of prohibited sexual misconduct against the same minor in a short
9 period of time (here, enticing the same minor to send sexually explicit
10 photographs on three different days over the course of nineteen days) satisfies
11 the “pattern of activity” requirement of § 4B1.5(b). “[W]e may affirm a
12 Guidelines enhancement on any basis for which there is a record sufficient to
13 permit conclusions of law, including grounds upon which the district court did
14 not rely.” Broxmeyer, 699 F.3d at 287 (quotation marks omitted). In this case, the
15 District Court found that Quiroz-Martinez had also engaged in two prior,
16 separate, and uncharged incidents of prohibited sexual misconduct against two
17 minors other than the minor involved in the offense of conviction. As we explain
4 1 below, these findings were not clearly erroneous. Thus, together with the offense
2 of conviction (and even without it), these two uncharged incidents satisfy the
3 pattern of activity requirement under § 4B1.5(b). We affirm the District Court’s
4 application of the five-level enhancement on that basis.
5 2. Factual Findings Under 18 U.S.C. § 3553(a)
6 Quiroz-Martinez also challenges the District Court’s factual findings that
7 he committed the two uncharged incidents and that he possessed child
8 pornography on his cellphone. The District Court relied on these findings in
9 imposing the final sentence under 18 U.S.C. § 3553(a).
10 Based on our review of the record, we conclude that these findings were
11 not clearly erroneous. After giving Quiroz-Martinez the opportunity to
12 challenge the sexual assault allegations as well as the claim that he possessed
13 child pornography, the District Court, pointing to the Presentence Report and
14 other materials, thoroughly explained why these prior incidents of misconduct
15 were established by a preponderance of the evidence.
16 3. Substantive Reasonableness
17 Quiroz-Martinez separately argues that his sentence was substantively
5 1 unreasonable primarily because the District Court assigned undue weight to the
2 uncharged allegations of sexual misconduct and improperly applied the
3 § 4B1.5(b)(1) sentencing enhancement. We will “set aside a district court’s
4 substantive determination only in exceptional cases where the trial court’s
5 decision cannot be located within the range of permissible decisions.” Cavera,
6 550 F.3d at 189 (quotation marks omitted). We have already rejected Quiroz-
7 Martinez’s procedural challenge to the sentencing enhancement and do not
8 revisit the issue in the context of substantive reasonableness. We now also
9 conclude that the District Court adequately considered the factors listed in 18
10 U.S.C. § 3553(a), including the nature and circumstances of the offense. Indeed,
11 the District Court referred to several factors in Quiroz-Martinez’s favor and
12 sentenced him to a below-Guidelines term of imprisonment on the ground that
13 the § 4B1.5(b) sentencing enhancement was “disproportionate to the seriousness
14 of the conduct.” App’x 86. We therefore reject Quiroz-Martinez’s argument that
15 his sentence was substantively unreasonable.
16 4. Breach of the Plea Agreement
17 At the sentencing hearing, the Government advocated for a sentencing
6 1 range of 324 to 405 months. Quiroz-Martinez argues that the Government thus
2 breached the plea agreement, in which it promised to advocate for a Guidelines
3 range of no more than 292 to 365 months. Because Quiroz-Martinez raises this
4 argument for the first time on appeal, we review it for plain error. See Puckett v.
5 United States, 556 U.S. 129, 135–36 (2009).
6 In determining whether the Government breached a plea agreement, we
7 consider “the reasonable understanding of the parties as to the terms of the
8 agreement.” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (quotation
9 marks omitted). Quiroz-Martinez’s claim fails because there was no plea
10 agreement, written or verbal, between the parties when he decided to plead
11 guilty. During his guilty plea proceeding, Quiroz-Martinez understood that he
12 was pleading guilty without the benefit of a plea agreement and without a
13 recommended Guidelines range. The Government later offered Quiroz-Martinez
14 two plea agreements that included proposed Guidelines ranges lower than the
15 range the Government ultimately proposed at sentencing, but Quiroz-Martinez
16 declined both offers. In any event, neither of the plea offers themselves
17 contained a representation by the Government that it would stick to the
7 1 Guidelines ranges reflected in the offers. See United States v. MacPherson, 590
2 F.3d 215, 219 (2d Cir. 2009).
3 We have considered Quiroz-Martinez’s remaining arguments and
4 conclude that they are without merit. For the foregoing reasons, the judgment of
5 the District Court is AFFIRMED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk of Court