United States v. Jonathan Calvo

concurring in part and dissenting in part:

I agree that the district court did not abuse its discretion by applying a five-level enhancement under U.S.S.G. § 4B1.5(b), and concur with that part of the majority’s disposition.

Because, in my view, Calvo has not shown that the district court abused its discretion by applying the two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B), I respectfully dissent from that part of the majority’s reasoning. The record contains evidence that the victim was groomed. This supports the district court’s finding of undue influence. The majority concludes that Calvo rebutted the presumption of undue influence through evidence of the victim’s voluntariness, but that evidence is consistent with a victim subject to the influence of an online predator. L.S. willingly engaged in an online relationship with Calvo and requested that he pick her up, but this does not establish that she “willingly engaged in the sexual acts at issue.” As several of our sister circuits have held, under these circumstances evidence of a victim’s willingness does not render a district court’s finding of undue influence clearly erroneous. See United States v. Watkins, 667 F.3d…

FILED

NOT FOR PUBLICATION JAN 08 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50064

Plaintiff - Appellee, D.C. No. 5:11-cr-00070-VAP-1

v.

MEMORANDUM*

JONATHAN PAUL CALVO,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Submitted December 10, 2014** Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

Defendant Jonathan Paul Calvo appeals his 240-month sentence imposed

following his guilty plea to enticement of a minor to engage in sexual activity, in

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). -2- violation of 18 U.S.C. § 2422(b). We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm in part, reverse in part, and remand for resentencing.

On appeal, Calvo…

MEMORANDUM **

Defendant Jonathan Paul Calvo appeals his 240-month sentence imposed following his guilty plea to enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422 (b). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand for resentencing.

On appeal, Calvo challenges the district court’s imposition of certain sentencing en *543 hancements and the substantive reasonableness of his sentence. When reviewing a sentence, we first consider whether the district court committed significant procedural error. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). “In determining whether the district court committed procedural error, we review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of a case for abuse of discretion, and the district court’s factual findings for clear error.” United States v. Brooks, 610 F.3d 1186, 1198 (9th Cir.2010).

First, Calvo challenges the district court’s imposition of a five-level sentencing enhancement under U.S.S.G. § 4B1.5(b) for engaging in a pattern of…