United States of America v. Lorenzo Aguirre-Miron

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
_______________
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)

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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 child-
pornography 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.

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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.

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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).

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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).

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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

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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).

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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 Aguirre-
Miron’s.
Lastly, the government asserts that it was not Aguirre-
Miron’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

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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).

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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.

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