F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 15, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-8012
MARTIN GARCIA,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 03-CR-189-D)
George W. Aristotelidis, San Antonio, Texas, for Defendant-Appellant.
James C. Anderson, Assistant United States Attorney, (Matthew H. Mead, United
States Attorney, District of Wyoming, with him on the brief) Cheyenne,
Wyoming, for Plaintiff-Appellee.
Before O’BRIEN , ANDERSON , and McCONNELL , Circuit Judges.
McCONNELL , Circuit Judge.
Martin Garcia pleaded guilty to charges of interstate transportation of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1). Pursuant to
the then-mandatory Federal Sentencing Guidelines, the district court applied the
cross-reference found at U.S.S.G. § 2G2.2(c)(1) and, after applying two sentence
enhancements and one sentence reduction, determined that Mr. Garcia’s final base
offense level was 30. The district court sentenced Mr. Garcia to 97 months’
imprisonment, the low end of the applicable range. Mr. Garcia raises three
arguments on appeal: (1) the district court erred in applying the cross-reference;
(2) the district court erred in refusing to grant a downward departure in
sentencing for government misconduct; and (3) his sentence is unconstitutional in
light of United States v. Booker, 125 S.Ct. 738 (2005).
I. Factual and Procedural Background
On July 17, 2003, Special Agent Robert Leazenby of the Wyoming Division
of Criminal Investigation (“DCI”) entered an internet chat room entitled
“PRETEEN POSTINGS & TRADING.” Agent Leazenby engaged in internet chat
via Yahoo Instant Messenger, using the undercover identity of “ibalissasmom.”
Mr. Garcia, located in Texas, sent an instant message to “ibalissasmom,”
initiating a private conversation. Agent Leazenby portrayed “ibalissasmom” as a
35 year-old mother with two daughters. When Mr. Garcia learned that the
daughters’ ages were 7 and 12, he replied “mmmmmmmmmm perfect ages.”
Aplt. Br. Appx., at 8. During the course of the conversation, Mr. Garcia
expressed interest in becoming sexually active with minor girls, and stated a
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particular preference for girls ages 11-15. Mr. Garcia also stated that he wished
he “could meet someone who was willing to share.” Id., at 9. From the context
of their conversation, it is evident that Mr. Garcia meant that he was seeking to
sexually abuse minor children with the consent of the parent.
The next day, Mr. Garcia again initiated an internet chat with
“ibalissasmom.” Mr. Garcia asked “ibalissasmom” to send him pictures of herself
and her girls. When asked what kind of pictures he wanted, Mr. Garcia replied
“nasty would be great but id settle for sexy or whatever you want to send.” Id., at
12. “Ibalissasmom” claimed not to have digital pictures that could be sent via the
internet. “Ibalissasmom” also stated that she did not “have the nasty ones, [but]
would need to photo them.” Id. Mr. Garcia then made the following offer: “ill
send u [polaroid film] if u will take some nasty [pictures] for me.” Id. at 13. Mr.
Garcia then described explicit sexual acts that he wanted the mother and both
daughters to perform for the camera. Agent Leazenby gave Mr. Garcia the
address of a post office box in Cheyenne, Wyoming, to which he should send the
film. Unbeknownst to Mr. Garcia, the post office box belonged to DCI. Mr.
Garcia sent Polaroid film that day and it arrived in the DCI post office box on
July 23, 2003.
On July 25, 2003, “ibalissasmom” sent an e-mail to Mr. Garcia asking him
again to describe what he wanted in the pictures. Mr. Garcia replied via e-mail
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and suggested specific sexual acts involving the mother and both daughters. On
August 3, 2003, Agent Leazenby initiated an internet chat with Mr. Garcia for
purposes of obtaining a photograph of him in order to confirm his identity before
arresting him. Agent Leazenby, still undercover, asked “do you have a pic for
me?” Aplt. Br. Appx., at 22. Mr. Garcia said, “sure what u wanna see?” Id.
Agent Leazenby replied, “I meant of you, but what do you suggest?” Id. Mr.
Garcia then suggested that he send photos depicting minors engaged in sexual
conduct with adults, and he sent two photos. Id. One of the pictures depicted an
adult male ejaculating on the face of an adolescent female. With respect to this
picture, Mr. Garcia said, “heres one that I imagine is me with ur oldest.” Aplt.
Br. Appx., at 22.
Based on the foregoing, Mr. Garcia was charged with interstate distribution
of child pornography in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1). Mr.
Garcia pleaded guilty and in the plea agreement acknowledged that he had been
advised of U.S.S.G. § 1B1.3 regarding the use of relevant conduct in establishing
his sentence. For the crime to which Mr. Garcia pleaded guilty, the base offense
level for purposes of sentencing is normally 17, as provided in U.S.S.G. § 2G2.2
(2003). However, the district court determined that the cross-reference at §
2G2.2(c)(1) should apply. This cross-reference states that “[i]f the offense
involved causing, transporting, permitting, or offering or seeking by notice or
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advertisement, a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct, apply § 2G2.1.” U.S.S.G.
2G2.2(c)(1).
Applying this cross-reference, Mr. Garcia’s original base offense level was
27. The district court then applied a four-level enhancement pursuant to §
2G2.1(b)(1) because the offense involved a victim who had not attained the age of
twelve, a two-level enhancement pursuant to § 2G2.1(b)(3) because the crime
involved the use of a computer, and a three-level reduction pursuant to § 3E1.1(a)
and (b) for acceptance of responsibility. Mr. Garcia’s final base offense level was
therefore 30 and, coupled with a Criminal History Category “I”, his sentencing
range was 97-121 months. The district court sentenced him to 97 months.
II. Application of the Cross-Reference
Mr. Garcia argues that the district court erred when it applied the cross-
reference. “[T]his Court continues to have the same jurisdiction to review
Guidelines sentences as it had before the Supreme Court’s decision in Booker.”
United States v. Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005). In
considering the application of the sentencing guidelines, we review the district
court’s factual findings for clear error, and its legal determinations de novo.
United States v. Dillon, 351 F.3d 1315, 1318 (10th Cir. 2003). We will “give due
deference to the district court’s application of the guidelines to the facts.” United
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States v. Norris, 319 F.3d 1278, 1284 (10th Cir. 2003).
A. Relevant Conduct
Mr. Garcia first argues that the offense with which he was charged did not
“involve” the behavior listed in the cross-reference. According to Mr. Garcia, his
decision to send two pornographic images of children to “ibalissasmom” on
August 3rd was in no way related or relevant to his quest to obtain pornographic
pictures of the two minor daughters of “ibalissasmom.”
The term “offense,” as used in the cross-reference, includes both charged
and uncharged relevant conduct. United States v. Tagore, 158 F.3d 1124, 1128
(10th Cir. 1998); United States v. Miller, 166 F.3d 1153, 1155 (11th Cir. 1999);
U.S.S.G. § 1B1.1 n.1(H). Relevant uncharged conduct must be proven by a
preponderance of the evidence. United States v. Magallanez, – F.3d – WL
1155913 at *8 (10th Cir. 2005). This court has broadly construed the meaning of
relevant conduct. United States v. Asch, 207 F.3d 1238, 1243 (10th Cir. 2000).
Relevant conduct consists of “all acts or omissions . . . that were part of the same
course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(2). The commentary to § 1B1.3 explains what constitutes a
“common scheme” or “the same course of conduct”:
Common scheme or plan. For two or more offenses to constitute part of a
common scheme or plan, they must be substantially connected to each other
by at least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi . . . .
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Same course of conduct. Offenses that do not qualify as part of a common
scheme or plan may nonetheless qualify as part of the same course of
conduct if they are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode, spree, or
ongoing series of offenses . . . .
U.S.S.G. 1B1.3, n.9 (A) and (B).
Mr. Garcia does not dispute that he attempted to persuade “ibalissasmom”
to engage in sexual activity with her two daughters and to photograph the event.
Rather, he argues that this conduct was not related to his decision to send the
child pornography on August 3rd. Specifically, he points to the temporal
relationship between the two events, noting that “the images were sent well after,
and without any connection to the first set of conversations involving the mailing
of the film . . . .” Aplt. Br. at 27.
Mr. Garcia’s argument is not persuasive, for several reasons. The internet
chat room in which Mr. Garcia made the acquaintance of “ibalissasmom” was
entitled “PRETEEN POSTINGS AND TRADING.” “Trading” is defined by
Webster’s Dictionary as “to make an exchange of one thing for another . . . to
pass back and forth.” Webster’s II New Riverside University Dictionary 1223
(1984). “Trading” in this context refers to the exchanging of “preteen”
pornographic material. Mr. Garcia repeatedly offered to make exchanges. He
offered to send beauty products to “ibalissasmom” in exchange for her
“daughters.” He offered to send Polaroid film if she would use it to photograph
7
herself and her daughters. When viewed in this “barter” context, Mr. Garcia’s
decision to send child pornography to “ibalissasmom” is relevant to his quest to
obtain child pornography from “ibalissasmom.”
The fact that Mr. Garcia did not send the two images until a few days after
requesting the Polaroid images does little to bolster his argument. This Court has
held that conduct stretching out over a five-year period was not too remote to be
considered relevant conduct if those acts were part of the same course of conduct.
United States v. Neighbors, 23 F.3d 306, 310-11 (10th Cir. 1994). Here, a mere
eight days had passed from the time that Mr. Garcia requested specific sexual
conduct to be photographed and when he sent child pornography to
“ibalissasmom.”
On August 3rd, Mr. Garcia continued to await the arrival of the pictures he
had “ordered.” During the same conversation in which he sent the two child
pornography images to “ibalissasmom,” he also stated, “can’t wait to see ur pics.”
Mr. Garcia was anxious not only to receive the pictures but to meet in person with
“ibalissasmom” and her daughters. He stated, as he sent one of the two
pornographic pictures, “heres one that I imagine is me with ur oldest [daughter].”
Mr. Garcia’s decision to send the digital pornography and his requests for sexual
images of “ibalissasmom” and her daughters were united by the same purpose -
the eventual sexual abuse of two minor children. This predatory scheme was
8
common throughout the conversations between Mr. Garcia and “ibalissasmom.”
In every chat between the two, Mr. Garcia expressed an interest in both daughters.
His purpose in conversing with “ibalissasmom” is best explained in his own
words: “would u really consider sharing urself and your girls with me? . . .
Really? Then I feel privilged . . . [I] want to visit u and the girls every chance I
got.” Aplt. Br. Appx., at 12.
Mr. Garcia’s quest to obtain sexually explicit images of the daughters of
“ibalissasmom” was part of a common scheme and common course of conduct
that were relevant to his charged conduct. Therefore, the district court judge did
not commit error when he considered this relevant conduct in sentencing Mr.
Garcia.
B. Production
Mr. Garcia relies on two cases, United States v. Wilkinson, 169 F.3d 1236
(10th Cir. 1999) and United States v. Tagore, 158 F.3d 1124 (10th Cir. 1998), for
the proposition that because he did not produce the two photographs that he sent
to “ibalissasmom” on August 3rd the cross-reference does not apply. In
Wilkinson, the district court applied an identical cross-reference for the crime of
possession of child pornography when it found that the defendant “produced the
videos and photographs” in his possession. Wilkinson, 169 F.3d at 1237. In
Tagore, the district court applied the cross-reference for the crime of sending and
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receiving child pornography when it found that although the defendant had not
“produced” child pornography in the sense of taking pictures, he belonged to a
sophisticated internet group that sought to facilitate the production and
distribution of child pornography. Tagore, 158 F.3d at 1126-27. Mr. Garcia
argues that because he did not personally produce the two images that he sent on
August 3, 2003, and because he was not involved in a sophisticated internet group
dedicated to the production of child pornography, the cross-reference does not
apply.
Mr. Garcia’s reliance on Wilkinson and Tagore is misplaced and he
improperly characterizes the reason the district court applied the cross-reference.
The district court applied the cross-reference not because Mr. Garcia produced the
two images sent on August 3rd, but because he sought to have “ibalissasmom”
engage in sexual activity with her two minor daughters and to photograph this
activity. Even if we were to construe Mr. Garcia’s argument as contesting the
finding that he sought to “produce” these latter images, his argument would find
no support in law or fact.
Mr. Garcia urges us to adopt a narrow and hyper-technical interpretation of
the cross-reference. According to Mr. Garcia, if one is not physically standing
behind the camera or involved in a multi-person conspiracy to distribute child
pornography, then one is not “producing” child pornography, and thus the cross-
10
reference does not apply. Such an interpretation is contradicted by a plain
reading of the cross-reference, the commentary following the guideline, and case
law.
The conduct the guideline seeks to punish is not only the actual production
of child pornography, but the active solicitation for the production of such
images. Where, as here, the images are not actually produced, the cross-reference
may still apply so long as the defendant “offer[ed] or [sought] by notice or
advertisement, a minor to engage in sexually explicit conduct . . . .” U.S.S.G.
2G2.2(c)(1). There is no doubt that Mr. Garcia sought to have minors engage in
sexually explicit conduct. Mr. Garcia asked for “nasty” pictures of
“ibalissasmom” and her two daughters. Mr. Garcia offered to send Polaroid film
to “ibalissasmom” if she would take “nasty” pictures for him. Mr. Garcia asked
for pictures of “ibalissasmom” and her daughters “nude doing things to each
other” and described on at least two occasions specific sexual acts of which he
wanted close-up photographs.
The commentary following the guideline states that the cross-reference “is
to be construed broadly to include all instances where the offense involved
employing, using, persuading, inducing, enticing, coercing, transporting,
permitting, or offering or seeking by notice or advertisement, a minor to engage
in sexually explicit conduct for the purpose of producing any visual depiction of
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such conduct.” U.S.S.G. 2G2.2 n.3 (emphasis added). Neither the guideline nor
the commentary states that in cases where actual images are produced, the
defendant must be the one who is behind the camera. A defendant’s conduct may
be one step removed from the actual production and still fall within the ambit of
the cross-reference. United States v. Whitesell, 314 F.3d 1251, 1255 (11th Cir.
2002) (rejecting the defendant’s argument that he did not “cause” the production
of images when he asked a fifteen year old girl to take pictures of herself and
send them to him); United States v. Anderton, 136 F.3d 747, 750 n.2; U.S.S.G.
2G2.2 n.1. It is clear, based on his explicit statements to “ibalissasmom,” that
Mr. Garcia was offering or seeking by notice or advertisement, a minor to engage
in sexual activity.
C. Purpose
Mr. Garcia’s final argument with respect to the application of the cross-
reference is that if the purpose for which a defendant sought to have minors
engage in sexual activity is something other than producing a visual depiction of
the activity, then the cross-reference may not apply. To support this proposition,
he relies on United States v. Crandon, 173 F.3d 122 (3rd Cir. 1999). In Crandon,
the court held that a district court must consider the defendant’s “state of mind to
ensure that the defendant acted for purposes of producing a visual depiction of
[sexually explicit] conduct” when determining whether to apply the cross-
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reference. Crandon, 173 F.3d at 130. The Crandon court posited that “it is
conceivable that [the defendant] did have alternative . . . purposes in taking the
photographs.” Id.
Mr. Garcia’s argument suffers from the same flaw as his previous
argument, namely, that he misconstrues the reason the district court applied the
cross-reference. The cross-reference was not, as he alleges, applied for his
conduct involving the two photographs he sent on August 3, 2003. Rather, it was
applied for his entire course of conduct involving “ibalissasmom” and her two
daughters. When the issue is properly re-framed as, “for what purpose did Mr.
Garcia seek to have the daughters of “ibalissasmom” engage in sexual activity,”
then Crandon is of no help to Mr. Garcia. The district judge who sentenced Mr.
Garcia stated that he would be “engage[d] in flights of fantasy and fiction” if he
were to believe that Mr. Garcia’s purpose in seeking to have these two girls
engage in sexual activity was for anything other than producing visual depictions
to satisfy his perverse sexual desires. R. Vol. 4, at 89. Mr. Garcia’s
conversations with “ibalissasmom” reveal that his purpose in asking her to engage
in sex with her two daughters was to produce child pornography. Mr. Garcia told
“ibalissasmom” that it “would be great” if she would take “nasty” pictures of her
daughters and send them to him. Aplt. Br. Appx., at 12. Mr. Garcia said, “ill
send u some [film] if u will take some nasty [pictures] for me.” Id., at 13. Later,
13
he said, “im excited about seeing u and the girls . . . even if it is just on film.”
Id., at 15. Combined with numerous other requests for these pictures and explicit
descriptions of the sexual activity, this evidence clearly establishes that Mr.
Garcia’s purpose was to produce visual depictions of sexually explicit conduct
involving minors.
III. Sentence Manipulation/Outrageous Government Conduct
Mr. Garcia argues that he should have received a downward departure in
his sentence due to government misconduct. Mr. Garcia makes two attacks on the
conduct of Agent Leazenby, who posed online as “ibalissasmom.” First, he
argues that Agent Leazenby enticed him into seeking the sexual exploitation of
the daughters of “ibalissasmom,” and that such enticement constitutes outrageous
government conduct. Second, he argues that Agent Leazenby deliberately
structured the operation in such a way as to achieve the highest sentence possible,
i.e., that Agent Leazenby’s choice to portray one of the daughters as age 7
constitutes sentence manipulation because it leads to the highest enhancement - 4
levels. We have not to date recognized a claim of “sentence manipulation” and
find no occasion to do so here. United States v. Lacey, 86 F.3d 956, 963 (10th
Cir. 1996); United States v. Scull, 321 F.3d 1270, 1276 n.3 (10th Cir. 2003).
However “we have addressed the same concept under the appellation of
“outrageous governmental conduct.” Lacey, 86 F.3d at 963. We will therefore
14
address Mr. Garcia’s allegation that Agent Leazenby deliberately set out to
achieve the highest sentence possible under the rubric of outrageous government
conduct.
Although there are some circumstances in which a district court’s refusal
to depart downward is not subject to review, United States v. Spedalieri, 910 F.2d
707, 712 (10th Cir. 1990), a district court’s refusal to depart based on a
misapprehension of the departure provisions despite a correct application of the
facts to the guidelines is reviewable. United States v. Lowden, 905 F.2d 1448,
1449 (10th Cir. 1990). Here, the district judge justifiably believed that the
PROTECT Act of 2003 prevented him from granting a downward departure for
this claim, a belief which we now know was error in light of United States v.
Booker, 125 S.Ct. 738 (2005). 1 This misapprehension of the guidelines allows us
to review the district court’s refusal to depart downward. Lowden, 905 F.2d at
1449. In analyzing such a decision, we review the district court’s factual findings
for clear error, and its legal determinations de novo. Sierra-Castillo, 405 F.3d at
936 n.2; Dillon, 351 F.3d at 1318. We will continue to give due deference to the
1
The PROTECT ACT, Pub.L. No. 108-21, amended 18 U.S.C. §
3553(b)(2)(A) to eliminate downward departures in cases of child sexual offenses.
The Supreme Court held 18 U.S.C. § 3553(b)(1) unconstitutional and severed it
from the sentencing guidelines in Booker. Although the Supreme Court did not
directly address 18 U.S.C. § 3553(b)(2), this Court recently held that § 3553(b)(2)
has also been severed. United States v. Yazzie, – F.3d – WL 1189822 at *4 (10th
Cir. 2005).
15
district court’s application of the guidelines to the facts. Norris, 319 F.3d at
1284.
“[T]he relevant inquiry” when assessing claims of outrageous government
conduct “is whether, considering the totality of the circumstances . . . the
government’s conduct is so shocking, outrageous and intolerable that it offends
the ‘universal sense of justice.’” Lacey, 86 F.3d at 964, quoting United States v.
Mosley, 965 F.2d 906, 910 (10th Cir. 1992), United States v. Russell, 411 U.S.
423, 432 (1973). This court has recognized the defense of outrageous government
conduct, United States v. Spivey, 508 F.2d 146 (10th Cir. 1975), but has never
rendered a decision upholding such a claim. “The absence of any decision by this
court upholding such a claim . . . bears testament to its narrow scope.” Lacey, 86
F.3d at 964. “To succeed on an outrageous conduct defense, the defendant must
show either (1) excessive government involvement in the creation of the crime, or
(2) significant governmental coercion to induce the crime.” United States v.
Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994).
Even absent the PROTECT Act’s statutory prohibition on downward
departure for claims of outrageous government conduct, Mr. Garcia’s claim
flounders for want of factual support. Mr. Garcia asserts that his “posture [was]
passive” and that “he accepted an offer carefully prepared and suggested by the
16
agent.” Aplt. Br., at 35. He argues that Agent Leazenby “was required to
approach in a substantially less aggressive manner” when he learned that Mr.
Garcia had not yet abused any children. Id. at 34. Mr. Garcia does not cite the
source of this requirement. Contrary to these assertions, the internet and e-mail
conversations show Mr. Garcia to have been actively pursuing not only the
homemade pornography of “ibalissasmom” but also an opportunity to engage in
sexual activity with her daughters. Less than twenty minutes into their initial
conversation, Mr. Garcia suggested, “maybe we could meet . . . sometime.” Aplt.
Br. Appx., at 9. Less than four minutes into their second conversation, Mr.
Garcia asked to sexually abuse the daughters of “ibalissasmom.” Id. at 11.
Shortly thereafter, he made his first request for the pornography - a request that
was to be repeated several times at no prompting from Agent Leazenby. During
their third conversation, Mr. Garcia again suggested they meet and stated that he
could drive to Wyoming if needed. Id. at 18. It was Mr. Garcia, not Agent
Leazenby, who suggested that “ibalissasmom” take “nasty” pictures. Agent
Leazenby did not ask Mr. Garcia to send film for that purpose. Agent Leazenby
did not create the crime nor did he coerce Mr. Garcia to commit the crime.
With respect to sentencing manipulation, Mr. Garcia argues that it was
outrageous for Agent Leazenby to portray one of the daughters of “ibalissasmom”
as seven years old since this led to a four-level enhancement for sexual
17
exploitation of a minor less than twelve years old. His argument is not supported
by any additional facts to suggest misbehavior on the part of Agent Leazenby and
is undermined by his own stated preference for girls ages “11 and up to 15.”
Aplt. Br. Appx., at 8. Sexual abuse of an eleven year old would also lead to a
four-level enhancement. Mr. Garcia apparently is urging us to adopt a per se rule
whereby law enforcement officers are never allowed to structure “bait and hook”
operations where the “bait,” if taken, leads to the highest level sentence
enhancement. We decline to adopt such a rule. “[I]t is not outrageous for the
government . . . to induce a defendant to repeat, continue, or even expand
previous criminal activity.” Pedraza, 27 F.3d at 1521. “[I]n inducing a defendant
to repeat or expand his criminal activity, it is permissible for the government to
suggest the illegal activity . . . .” Id. Here, Agent Leazenby did not even suggest
the activity; Mr. Garcia did. We perceive no misconduct on the part of Agent
Leazenby, let alone conduct that is so outrageous that it “offends the universal
sense of justice.” Lacey, 86 F.3d at 964
IV. Booker Violation
Mr. Garcia argues that his sentence violates his Sixth Amendment right to a
trial by jury because the sentencing judge considered facts that were not proven to
a jury beyond a reasonable doubt and to which he did not admit. The government
concedes that, in light of United States v. Booker, 125 S.Ct. 738 (2005) and this
18
Court’s recent decision in United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005),
Mr. Garcia’s sentence is constitutionally infirm and asks us to grant his motion to
vacate his sentence and remand for resentencing.
V. Conclusion
Based on the foregoing, though we reject Mr. Garcia’s arguments regarding
the application of the cross-reference and outrageous government conduct, his
sentence is VACATED in light of Booker. We REMAND to the district court for
resentencing consistent with the Supreme Court’s decision in Booker.
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