## Facts

- Martin Garcia used an online chatroom called “Preteen Postings & Trading” and began chatting with an undercover officer, Special Agent Robert Leazenby, who posed as a 35-year-old mother of two girls, ages 7 and 12, under the username “ibalissasmom.”
- During the chats, Garcia expressed sexual interest in minor girls and reacted favorably when told the girls’ ages were 7 and 12.
- Garcia asked “ibalissasmom” to send photographs of the daughters and indicated he wanted sexually explicit (“nasty”) pictures.
- To obtain the requested pictures, Garcia mailed blank film to “ibalissasmom,” expecting it would be used to take photos of the children and send them to him.
- In exchange, Garcia emailed two images of child pornography to “ibalissasmom.”
- Federal prosecutors charged Garcia with interstate transportation/distribution of child pornography under 18 U.S.C. §§ 2252A(a)(1) and (b)(1), and Garcia pleaded guilty.
- At sentencing, the district court started with the guideline for trafficking in child pornography (U.S.S.G. § 2G2.2) and applied the cross-reference in § 2G2.2(c)(1) to the guideline for sexual exploitation/production (U.S.S.G. § 2G2.1) based on Garcia’s solicitation of new images.
- The district court also applied a two-level increase based on the offense involving a child under 12, then applied a reduction for acceptance of responsibility, resulting in an advisory range of 97 to 121 months.
- The court imposed a 97-month sentence, and Garcia appealed, challenging the guideline calculations, the denial of a lower sentence based on the agent’s conduct, and the sentence’s constitutionality after United States v. Booker.

## Issues

1. Did the district court err by applying U.S.S.G. § 2G2.2(c)(1)’s cross-reference to U.S.S.G. § 2G2.1 on the ground that Garcia “sought or solicited” the production of child pornography?
2. Could Garcia obtain appellate review of the district court’s refusal to impose a lower sentence based on alleged government misconduct in the undercover operation?
3. Did the sentence violate United States v. Booker because the judge relied on sentencing facts not found by a jury beyond a reasonable doubt?

## Decision

- The Tenth Circuit affirmed Garcia’s sentence.
- The court held the § 2G2.2(c)(1) cross-reference was properly applied because Garcia requested sexually explicit photos of the purported children and supplied blank film to obtain those images, which qualified as seeking or soliciting production.
- The court held it lacked jurisdiction to review the district court’s discretionary refusal to impose a lower sentence for alleged government misconduct where the district court understood its authority and simply declined to reduce the sentence.
- The court rejected Garcia’s Booker challenge, concluding any possible Booker-related error did not warrant relief on this record.

## Legal Principles

- The child-pornography guidelines may require use of a cross-reference when the offense conduct includes “seeking or soliciting” the production of sexually explicit images of minors; actual production by a real child is not required when the defendant’s conduct constitutes solicitation.
- In applying guideline provisions tied to victim age or offense intent, sentencing courts may consider what the defendant requested or intended when the record supports that finding.
- A court of appeals generally cannot review a district court’s discretionary refusal to grant a lower sentence (departure) when the district court recognized its authority to do so but chose not to exercise it.
- After United States v. Booker, constitutional sentencing error claims focus on whether judge-found facts were used in a way that requires reversal; where the record shows no basis for relief, the sentence may be affirmed.

## Conclusion

United States v. Garcia affirmed a 97-month sentence imposed after Garcia pleaded guilty to interstate child-pornography trafficking, holding that his requests for explicit photos of purported minors and his sending of blank film supported the guideline cross-reference for soliciting production, that the denial of a discretionary reduction based on the undercover operation was not reviewable, and that his Booker challenge did not justify disturbing the sentence.


United States v. Garcia, 411 F.3d 1173 (2005)