United States v. Guerrero

89 F.4th 694

UNITED STATES of America, Plaintiff-Appellee, v. Christopher De Leon GUERRERO, Defendant-Appellant.

No. 22-10042

United States Court of Appeals, Ninth Circuit

Argued and Submitted October 3, 2023 Honolulu, Hawaii

Filed December 26, 2023

Appeal from the United States District Court for the District of Guam, Frances Tydingco-Gatewood, Chief District Judge, Presiding, D.C. No. 1:20-cr-00029-FMTG-1

Sonam A.H. Henderson (argued), Assistant Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal

Public Defender's Office, Los Angeles, California; for Defendant-Appellant.

Benjamin K. Petersburg (argued), Assistant United States Attorney, United States Attorney's Office, Hagatna, Guam, for Plaintiff-Appellee.

Before: Marsha S. Berzon, Eric D. Miller, and Lawrence VanDyke, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Berzon

OPINION

PER CURIAM:

Christopher De Leon Guerrero appeals from his convictions and sentence on two counts of attempted enticement of a minor. We affirm his convictions and sentence, except that we reverse, vacate, and remand as to three special conditions of supervised release.

I. Background

In November 2020, De Leon Guerrero replied to an online post by "Emily." He believed she was a thirteen-year-old girl living on Andersen Air Force Base. In actuality, "Emily" was a make-believe persona created by federal agents as part of an undercover operation to identify individuals "with access to Andersen Air Force Base who were willing to engage in sexual conversation or attempt to meet a minor for sexual contact."

De Leon Guerrero and "Emily" had online conversations over several days, during which they discussed engaging in sexual activity together. The two talked about meeting on Andersen Air Force Base over an upcoming weekend. Among other sexual activities, De Leon Guerrero discussed performing oral sex on "Emily" and having sexual intercourse with her.

On November 19, De Leon Guerrero told "Emily" that he would buy condoms before they met. The next day, they made plans to meet at "Emily's" house on Andersen Air Force Base. That evening, De Leon Guerrero arrived at the on-base house he believed to be "Emily's" with condoms in his truck. After parking, he was questioned and arrested by federal agents.

A grand jury returned an indictment charging De Leon Guerrero with two counts of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. § 2. Section 2422(b) provides that

[w]hoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b). Each count specified a chargeable predicate offense under Guam law, namely first-degree criminal sexual conduct in violation of 9 Guam Code Ann. § 25.15(a)(1)¹ and second-degree criminal sexual conduct in violation of 9 Guam Code Ann. § 25.20(a)(1).²

After De Leon Guerrero was convicted on both counts, the district court sentenced him to a ten-year mandatory minimum term in prison and five years of supervised release. As part of De Leon Guerrero's supervised release, the district court imposed several special conditions, described orally at his sentencing and in the written judgment that followed.

II. Convictions

Because De Leon Guerrero "did not make a Rule 29(a) motion" to preserve his objection to the sufficiency of the evidence, we "review his claim for plain error." United States v. Chu, 5 F.3d 1244, 1248 (9th Cir. 1993).

De Leon Guerrero objects that his convictions under § 2422(b) are not supported by sufficient evidence. He could not have been charged under Guam law, he contends, for actions that took place on a federal enclave, Andersen Air Force Base, so the predicate-offense element of § 2422(b) was not established. We agree with both parties that our precedent in United States v. Lopez forecloses that challenge. 4 F.4th 706 (9th Cir. 2021).

The defendant in Lopez was arrested in Guam after arranging to meet up for sexual activity on Andersen Air Force Base with "Brit," whom he believed to be a thirteen-year-old girl but who was in fact a federal agent. Id. at 712-13. An indictment charged Lopez with violating § 2422(b) by attempting to entice a minor to engage in a chargeable sexual activity, namely sexual penetration of a minor in violation of § 25.15(a)(1). Id. at 713. He was convicted. Id. at 712. On appeal, Lopez challenged the sufficiency of the evidence in support of that conviction; he disputed that the predicate Guam offense was chargeable, maintaining that his contemplated conduct was on-base and so beyond Guam's criminal jurisdiction. Id. at 718-19. This court affirmed his conviction, reasoning that § 2422(b)'s chargeable-offense element was satisfied as Lopez could have been charged for a different predicate offense given his off-base conduct—namely attempted sexual penetration of a minor under 9 Guam Code Ann. § 13.10 with reference to § 25.15(a)(1). See id. at 724. We concluded that the attempt conduct—Lopez's emails and text messages—took place off-base in Guam, so he could have been prosecuted for it. Id. at 724.

Following Lopez, we affirm De Leon Guerrero's § 2422(b) convictions by referencing another predicate offense, not specified in the indictment, with which he could have been charged. See id. at 724-25. Both of De Leon Guerrero's convictions under § 2422(b) can be supported by § 13.10, the Guam criminal attempt statute relied upon in Lopez. See id.

Under that statute, "[a]n attempt conviction requires proof of the defendant's 'intent to engage in conduct which would constitute such crime' and 'a substantial step toward commission of the crime.' " Lopez, 4 F.4th at 724 (quoting 9 Guam Code Ann. § 13.10). "That is exactly what happened here when [De Leon Guerrero] intentionally communicated with ['Emily'] from within the Territory of Guam in furtherance of his goal of sexual penetration" in violation of § 25.15(a)(1) and of sexual conduct in violation of § 25.20(a)(1). Id. The full § 13.10 predicate offenses for purposes of § 2422(b) would thus be attempted sexual penetration of a minor (as in Lopez) and attempted sexual conduct with a minor.

At trial, the government "introduced records of [online] communications in which [De Leon Guerrero] discussed sex with ['Emily'] and sought to persuade 'her' to have sex when they met in person." Id. "A reasonable jury could conclude some of the communications with ['Emily'] were sent from off-base locations, including from [De Leon Guerrero's] home, where he spent substantial time and likely formed the intent sexually to penetrate [and have sexual conduct with] a minor. It is well established that communications intended to groom a victim to engage in sexual activity in the future constitute substantial steps toward the completion of a crime." Id.

In light of Lopez, we conclude, after identifying a predicate offense for each count with which he could have been charged based on off-base conduct, that "it was not error, let alone plain error, for the district court to enter a judgment of conviction" on that record as to both counts under § 2422(b). Id. at 719.

III. Sentence

The parties agree that De Leon Guerrero's sentence should be reversed, vacated, and remanded to the district court for reconsideration of three special conditions imposed on his supervised release. We have previously remanded criminal cases for resentencing where both parties so request. See, e.g., United States v. Gurolla, 333 F.3d 944, 958 (9th Cir. 2003). Remand is warranted here based on our precedents disapproving of comparable conditions of supervised release.

1. Special Condition 2 provides that De Leon Guerrero "must not go to, or remain at, any place where [he] know[s] children under the age of 18 are likely to be, including parks, libraries, schools, playgrounds, and childcare facilities without prior approval of the probation officer." That condition, as written, sweeps too broadly. It is not limited to the five examples given but would ban De Leon Guerrero from a wide range of locations where children often go, including hospitals, courthouses, places of worship, grocery stores, and gas stations. Additionally, it will require him to engage in a probabilistic guessing game to determine where children are "likely to be."

We have approved similar conditions that, as worded, do not have the defects of this one. United States v. Bee upheld a condition that banned the defendant while on supervised release from "loiter[ing] within 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by" children. 162 F.3d 1232, 1235-36 (9th Cir. 1998). Both parties favorably referenced this language from Bee. We remand with instructions that the district court conform Special Condition 2 to refer, as in Bee, to locations "primarily used by" children under 18.

2. Special Condition 4 as included in the written judgment provides that De Leon Guerrero "must not view or possess any 'visual depiction' (as defined in 18 U.S.C. § 2256), including any photograph, film, video, picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of 'sexually explicit conduct' (as defined in 18 U.S.C. § 2256)."³

Our court has cautioned that conditions of supervised release that too broadly restrict access to sexual images raise serious First Amendment issues. See United States v. Gnirke, 775 F.3d 1155, 1163-65 (9th Cir. 2015). Gnirke offered guidance for appropriately tailoring such restrictions, construing a similar condition of supervised release to apply "(1) to any materials with...