NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10174
Plaintiff - Appellee, D.C. No. 4:07-cr-02025-FRZ-GEE
v.
MEMORANDUM*
JUSTIN MICHAEL ANTONE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted April 12, 2010**
San Francisco, California
Before: NOONAN and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***
*
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).
***
The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
Justin Michael Antone (“Antone”) appeals the sentence imposed following
his jury conviction of three counts of sexual abuse of a minor in violation of 18
U.S.C. §§ 2243(a), 2246(C), and 1153(a). On April 21, 2009, Antone was
sentenced to 84 months for each count, served concurrently, followed by lifetime
supervised release. He contends that the district court erred in calculating the
applicable advisory Sentencing Guidelines range.1 We review the district court’s
interpretation of the Sentencing Guidelines de novo, application of the Guidelines
to the facts for abuse of discretion, and factual findings for clear error. United
States v. Loew, 593 F.3d 1136, 1139 (9th Cir. 2010). We affirm.
First, the district court did not err by failing to group the offenses of
conviction pursuant to U.S.S.G. § 3D1.2. Antone’s offenses are explicitly
excluded from grouping under Subsection 3D1.2(d). Grouping would be
inappropriate under Subsection 3D1.2(b), because Antone’s three offenses against
the victim occurred on separate dates and involved “multiple, separate instances of
fear and risk of harm” rather than “one composite harm.” See U.S.S.G. § 3D1.2
n.4.
1
Antone does not dispute that the district court was correct to rely on the
2008 version of the Sentencing Guidelines.
2
Second, the district court did not err in applying a four-level increase
pursuant to U.S.S.G. § 2A3.2(b)(2)(ii) for “unduly influenc[ing] the minor to
engage in prohibited sexual conduct.” The application note provides for a
rebuttable presumption of undue influence when a participant in the sexual activity
is at least ten years older than the minor. See U.S.S.G. § 2.A3.2 n.3(B). Because
Antone was twenty-nine years older than the victim, this presumption applies. In
addition to the age difference, the district judge also cited the following facts
supporting his conclusion that the enhancement was warranted: first, Antone was
related to the victim; and second, the victim was “in a situation that led to the
defendant being able to exert undue influence over her based on the fact that she
was in his home at the behest of her mother asking for basically the basic
necessities of life.” These factual findings have ample support in the record.
Antone, the victim, and the victim’s mother testified that the victim and her family
would ask Antone for food, use of the phone, or for transportation. Antone’s
arguments are insufficient to rebut the presumption of undue influence.
Finally, the district court did not err in applying a five-level increase
pursuant to U.S.S.G. § 4B1.5(b) for a “pattern of activity of prohibited sexual
conduct.” The application note provides that “[f]or purposes of subsection (b), the
defendant engaged in a pattern of activity involving prohibited sexual conduct if on
3
at least two separate occasions, the defendant engaged in prohibited sexual conduct
with a minor.” Id. at n.4(B)(i). An occasion of prohibited sexual conduct may be
considered for Subsection (b) regardless of whether it occurred “during the course
of the instant offense.” Id. at n.4(B)(ii). The district court found that there was
“no question” that Antone engaged in a pattern of activity involving sexual
conduct with the victim and admitted to the acts for which he was convicted. This
finding is supported by the record. Antone’s arguments as to why the
enhancement should not apply are without merit.
AFFIRMED.
4