John T. Floyd Law Firm
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Comments on Criminal Issues
July 12, 2007
INTERNET SEARCH FOR TEEN SEX A COSTLY PROPOSITION
Chris C. was really a small town gentleman living in a big city, Houston, Texas. He was married, mid-40s, professional with a nice home, and a secure job. All outward appearances indicated he was a normal, hard-working husband/father, but he had a problem. He had a perverse desire to have sex with a teenage girl. He wanted the sex to be safe, anonymous, and away from home. He had heard of the opportunities to find such sex on the Internet. He was initially hesitant, afraid, knowing that the Internet was filled with traps.
But the desire was stronger than logic. He started surfing the Internet in search of a teenage sex partner. He found one, or so he thought, who was fourteen years of age. The young teenager on the other side of the computer screen was receptive, even encouraging. Chris was cautious at first, but the anonymous seductive teenage voice on the other side of the computer screen beckoned, tempting him to press forward with his Lolita desire. He did.
But the alluring voice was not a teenage girl. It was a male undercover cop trolling the Internet hoping to ensnare a “child predator” like Chris. And he hooked Chris, reeling him in with promises of the kind of Lolita sex he was looking for. A meeting place was arranged. Chris told his teenaged computer lover how he would be dressed, that he would have a fancy vintage Mont Blanc ink pen in his shirt pocket, an expensive Cuban cigar in the other and that he would be driving a gold Porsche Cayenne Turbo when they met.
And on the designated day at the appointed time Chris pulled his vehicle into a shopping mall parking lot. Almost immediately he was surrounded by Federal agents who handcuffed him, read him his Miranda rights, and escorted him to a federal detention facility. As with so many others liked him, Chris was charged with violating 18 U.S.C. § 2422(b) which provides:
“Whoever, 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 prostitution or 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.”
Chris hired an experienced criminal defense attorney but found his § 2422(b) case would be extremely difficult to defend. The Government had the transcripts of the online sex communications. The “child predator,” as he became known, had been lured into making overt sexual suggestions, and encouraged to persuade, induce, or entice the perceived teenager to a meeting place where he hoped the online sexual suggestions would become reality. Chris described how he would be dressed, telling his proposed teenaged date how much money he would be carrying, the type of condoms he was bringing and what kind of vehicle he would be driving. As in most cases, he had provided the teenager with several digital photographs of himself and his genitals. She had also sent several to him, one in her freshman cheer leader outfit, clearly indicating her age. Federal agents seized the “predator” as soon as he arrived at the designated meeting place. Finally, afraid and in a daze, Chris gave a complete video taped confession of his plans to have sex with the under-aged girl, then signed the written confession with his beloved Mont Blanc, which the surrendered to authorities as evidence. Authorities also seized a bottle of 18 year old Glenmorangie scotch, a bottle of Viagra, and a pink vibrator.
For purposes of this discussion, the fictional was created so the defense attorney has almost nothing to work with. Guilt is almost a virtual certainty. Determining and limiting the potential sentence exposure would be the first line of defense. 18 U.S.C. § 3553(a) lists the factors the court must consider in imposing sentence:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.
The court, in determining the particular sentence to be imposed, shall consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
This statutory provision is part of the Sentencing Reform Act of 1984. See, 18 U.S.C. §§ 3551-3673. That Act fundamentally changed the way defendants are sentenced in federal courts. Previous sentencing laws allowed federal courts to impose indeterminate sentences under criminal statutes that set sentencing limits. The United States Sentencing Commission was formed pursuant to the SRA, and established “Sentencing Guidelines” that now determine the range of sentence to be imposed by federal courts. The purpose of the SRA was to abolish parole and establish Guidelines which would create a determinate sentencing scheme that would represent the actual period of incarceration. The Guidelines were considered mandatory, severely limiting a federal judge’s discretion in imposing sentence. See: 36 Geo.L.J.Ann.Rev.Crim.Proc., 670 (2007).
But the United States Supreme Court in 2005 ruled that the mandatory provisions of the Guidelines were unconstitutional. See, United States v. Booker, 543 U.S. 226, 244 (2005). Specifically, the Booker court found unconstitutional a federal judge’s prerogative to determine a sentencing fact not admitted to by the defendant or found by a jury. Id. The Supreme Court limited the maximum penalty a sentencing judge can impose to the statutory maximum based on facts (1) “reflected in the jury verdict”; (2) admitted to by the defendant; (3) contained in the defendant’s guilty plea; or (4) that are prior convictions. Id., at 228. [citing Blakely v. Washington, 542 U.S. 296, 303 (2004)]. See also: 36 Geo.L.J.Ann.Rev.Crim.Proc., 671 (2007).
In a separate remedial opinion, the Supreme Court in Booker “severed and excised” those provisions of 18 U.S.C. §§ 3553(b)(1) and 3742(e) that made the Guidelines mandatory. See, United States v. Booker, 543 U.S. 220, 245, 258-59 (2005). While the sentencing court is still required to consider the Guideline ranges, it may depart from the Guidelines if, at its discretion, the court finds other statutory concerns that warrant such departure. Id., 543 U.S. at 245-46. The Supreme Court said that all federal sentences will be reviewed on appeal under a standard of “unreasonableness.”Id., Most federal circuits have held that sentences imposed within the range recommended by the Guidelines are presumed to be “reasonable.” See, e.g., United States v. Hardin, 437 F.3d 463, 471 (5th Cir. 2006),
The Guidelines are actually a sentencing table that consists of forty-three offense levels and six criminal history categories. See, Sentencing Guidelines, § 4A1.1. See also: 36 Geo.L.J.Ann.Rev.Crim.Proc. 673 (2007).
This table identifies the applicable sentencing range for a particular defendant. Id., SG § 5A.
The “Offense Level” is the most important Guideline considered by the sentencing judge, particularly in § 2422(b) cases. An Offense Level determination is made by the judge selecting the offense guideline that matches a defendant’s conviction, and then “ … determines the base offense level from that guideline, and adjusts that offense level characteristics and special instructions contained in the section.” Id., 36 Geo.L.J. See also: SG § 1B1.1. The judge may then use the following five factors to adjust a defendant’s offense level:
(1) the defendant’s role in the offense;
(2) the defendant’s role in any obstructive conduct;
(3) the relationship between multiple counts for which defendant was
convicted;
(4) defendant’s acceptance of personal responsibility for the offense;
and;
(5) the level of harm to the victim.
See: 36 Geo.L.J.Ann.Rev.Crim.Proc. 673 (2007); SG § 1B1.1.
A defendant’s role in an offense is determined by the number of people involved in the offense and the extent of the offense; and whether the defendant was the leader, middleman, or minor participant in the criminal scheme. See: United States v. Narvaez, 38 F.3d 162, 166 (5th Cir. 1994)[person of unknown identify was participant because there was proof that an unidentified person was involved in precise transaction underlying the conviction]; United States v. Betancourt, 422 F.3d 240, 245-46 (5th Cir. 2005)[§ 3B1.1 applied because defendant directed a participant to build the press and storage cage for the cocaine preparation and its distribution, moved operations to various locations without informing other participants, and had others working on his behalf]. But see: United States v. Alred, 144 F.3d 1415, 1422 (11th Cir. 1998)[no leadership enhancement because defendant was only buyer and seller of drugs and had no decision-making authority within drug ring]; United States v. Samos, 357 F.3d 136, 143 (1st Cir. 2004)[mitigating role adjustment available because defendant least culpable of all coconspirators]. See also: 36 Geo.L.J.Ann.Rev.Crim.Proc. 674-75 (2007).
Other factors that will be considered by the court are: did the defendant use someone under age to help facilitate the crime; or did the crime itself require “special skills” to accomplish; or did the defendant violate any position of private or public trust. See, United States v. Partida, 385 F.3d 546, 567 (5th Cir. 2004) [§ 3B1.3 applied because the defendant managed investment companies]; United States v. Ross, 190 F.3d 446, 454 (6th Cir. 1999) [§ 3B1.3 applied because defendant, an attorney, used “special skill” to facilitate money-laundering and drug distribution conspiracies by providing legal assistance in arranging real estate transfers]; United States v. Murphy, 254 F.3d 511, 513 (4th Cir. 2001) [§ 3B1.3 applied because defendant utilized a juvenile to point a gun during a high speed chase].
But one of the most critical factor considered by the court in § 2422(b) cases is conduct by the defendant that allegedly obstructs or impedes the investigation, prosecution, or sentencing. See, e.g., United States v. Harms, 442 F.3d367, 378 (5th Cir. 2006) [§ 3C1.1 applied because defendant concealed a relevant subpoenaed document and told witnesses to lie about its existence]. This factor also includes a defendant testifying falsely under oath; namely, that he did not commit the offense. See, e.g., McCauley v. United States, 253 F.3d 815, 821 (5th Cir. 2001) [enhancement under § 3C1.1 approved because district court found the defendant committed perjury at trial by contradicting pretrial statements].
The U.S. Supreme Court has held that when a defendant challenges application of § 3C1.1), a district court must make an independent finding that the defendant did, in fact, commit perjury. See, United States v. Dunnigan, 507 U.S. 87, 95 (1993). In effect, this means a § 2422(b) defendant cannot take the witness and deny involvement in the offense. Whatever evidence the prosecution utilizes to bring the indictment in the first place is generally substantial and quite sufficient to make a finding of perjury. And despite Dunnigan, some federal circuits have held that the perjury finding does not have to be specific. For example, the Fifth Circuit in United States v. Creech, 408 F.3d 264 (5th Cir. 2005) held that application of § 3C1.1 was appropriate even though district court did not find every element of perjury but did find the predicates of perjury. Id., at 271. See also: United States v. Johns, 324 F.3d 94, 97-98 (2nd Cir. 2004) [§ 13C.1 finding appropriate without specific perjury finding because district court adopted a detailed PSR’s (Presentence Report) finding of false testimony].
Another critical sentencing factor in § 2422(b) cases is the defendant’s acceptance of personal responsibility. See, SG 1B1.1(e). This guideline requires an affirmative showing of acceptance of responsibility. The Fifth Circuit, for example, in United States v. Angeles-Mendoza, 407 F.3d 742 (5th Cir. 2005) denied the two-level § 1B1.1(a) sentence reduction after the defendant made contradictory statements before the court in an effort to minimize his role in the offense. Id., at 753. See also: United States v. Thomas, 315 F.3d 190, 205-06 (3rd Cir. 2002) [§ 1B1.1(a) reduction denied after the defendant went to trial with no “colorable legal defense” in a travel fraud case].
Not even a guilty plea by itself guarantees automatic § 1B1.1(a) reduction. The Fifth Circuit in United States v. Pierce, 237 F.3d 693 (5th Cir. 2001) said denial of § 1B1.1(a) reduction appropriate following guilty plea because the defendant failed to keep records of individuals in his sexually explicit photos and his denial that one of the subject was a minor. Id., at 695. See also: United States v. Gunderson, 345 F.3d 471, 478 (7th Cir. 2003) [§ 1B1.1(a) reduction denial appropriate even though defendant plead guilty to possession of child pornography but failed to accept responsibility for sharing the pornography]. See also: 36 Geo.L.J.Ann.Rev.Crim.Proc. 678-79 (2007).
SG § 1B1.1(a) has been unsuccessfully challenged on several occasions as unconstitutional under Fifth and Sixth Amendment grounds. See, United States v. Bermea, 30 F.3d 1539, 1577 (5th Cir. 1994) [no Fifth Amendment violation]; United States v. Cohen, 171 F.3d 796, 805 (6th Cir. 1998) [no Sixth Amendment violation].
United States v. Kretser, 2007 WL 1805560 (W.D.La. June 21, 2007) offers a good example of the sentencing factors the district court will generally consider in a § 2422(b) case. That court first pointed out that under S.G. § 2G1.3, the Probation Department must prepare and submit to the court a Presentence Report (“PSR”) which determines the base offense level for the crime charged.
The PSR in Kretser found that on February 13, 2007 the defendant was convicted by a jury of using a facility in interstate commerce to knowingly and intentionally attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity for which a person could be charged with a criminal offense – conduct in violation of § 2422(b).
Based on the PSR, the district court found that SG § 2G1.3(c)(1) directs that “[i]f the offense involved causing … or offering … a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply § 2G2.1 … if the resulting offense level is greater than that determined above.”
This cross-reference “is to be construed broadly and includes all instances in which the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering....” SG § 2G1.3, comment. (n.5(A)).
Moreover, “[t]he term ‘offense,’ as used in the cross-reference, includes both charged and uncharged offenses.”
The district court pointed out that the burden is on the government to prove the factors that trigger the cross-reference by a preponderance of the evidence.
The cross-reference, as cited by Kretser, in full, reads this way:
“If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply § 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), if the resulting offense level is greater than that determined above.”
See also: SG § 2G1.3(c)(1).
The Kretser court quoted the applicable commentary which provides as follows:
“Application of Subsection (c)(1) - The cross reference in subsection (c)(1) is to be construed broadly and includes all instances in which the offense involved employing, using, persuading, inducing, enticing, coercing, transporting, permitting, or offering or seeking by notice, advertisement or other method, a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. For purposes of subsection (c)(1), ‘sexually explicit conduct’ has the meaning given that term in 18 U.S.C. 2256(2).”
See also: United States v. Miller, 166 F.3d 1153, 1155 (11th Cir.1999) (per curiam); United States v. Whitesell, 314 F.3d 1251, 1255 (11th Cir.2002).
After outlining the above statutes and guidelines, the Kretser Court said:
”In the case at bar, a preponderance of the evidence shows that Kretser had the intent to offer and to take pictures of himself engaged in sexually explicit conduct with a minor. In the chat between the defendant and the ‘minor’ on June 5, 2006, the defendant stated that they would be going to a motel for sexual activity and that he would bring a digital camera to take pictures. He also indicated that he would make a movie and would give the ‘minor’ a disk full of pictures and a copy of the movie. Based upon these facts, § 2G2.1 is the appropriate cross-reference to use to determine the base offense level.”
The Government in Kretser argued, and the court agreed, that the base offense level should be enhanced by two points because the offense involved a minor who had reached the age of 12 but had not attained the age of sixteen. The Court addressed this issue as follows:
“Kretser argues that this enhancement is not appropriate because he suspected that the ‘minor’ was not, in fact, fourteen as she stated. Pursuant to U.S.S.G. § 2G2.1(b)(1), there is a two-level increase to the base offense level if the offense involved a minor who was at least 12 years old but not yet 16 years old. In this case, the ‘victim’ was an undercover agent posing as a 14-year-old girl in an online chat room. The commentary to § 2G1.3 expressly defines the term ‘minor’ as including: ‘an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.’ The evidence shows that Kretser believed he was interacting with a 14-year-old girl and knew the consequences of engaging in sexual activity with a minor this age.
“The defendant objects to this assessment arguing that the defendant never had contact with a minor. These internet conversations were between two adult males, one of whom happened to be the case agent. The defendant argues that unduly influencing a minor would require actual conversations with a minor. This argument is not persuasive and clearly not supported by the Guideline Commentary, nor by case law. The two-level increase for the fictitious victim's age is justified.”
The Government in Kretser additionally argued that an another two point assessment for obstruction of justice should also be assessed because the defendant lied about his involvement during his trial testimony. Following the Dunnigan rationale set forth by the Supreme Court, the district court cited with approval the Dunnigan finding that “given the numerous witnesses who contradicted the defendant’s trial testimony,” and found there was ample evidence for finding obstruction against Kretser. Id., 507 U.S. at 95-96. The court added:
“The Fifth Circuit has held that generally, it is proper for the district court to enhance a defendant's sentence for obstruction of justice where the defendant committed perjury by giving false testimony at trial. In Dunnigan, supra, the Supreme Court defined perjury as giving ‘false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.’ The enhancement is adequately supported if the court's finding ‘encompasses all of the factual predicates for a finding of perjury .’ Krester lied about all material matters concerning this case during his trial testimony and gave testimony which insulted the intelligence of the jury and the court. He used his own daughter as bait to gain the trust of someone who he thought was a fourteen year old girl. The court finds that the two point assessment for obstruction of justice is appropriate under the facts of this case.”
Lastly, the Court in Kretser said that “U.S.S.G.. § 2G2.1(b)(6)(B) directs that if the offense involved use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually explicit conduct, the offense level is to be increased by two (2) levels. Kretser used a computer in the instant offense, so this two point enhancement is justified.”
In 2006 Congress amended § 2422(b) under the “Adam Walsh Child Protection and Safety Act of 2006” which increased the minimum sentence
from five to ten years. SG § 5G1.1(b) provides that where the minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. The U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) upheld the constitutionality of mandatory minimum sentences. The Supreme Court in Booker upheld the mandatory minimum finding made in Apprendi. See also: Harris v. United States, 536 U.S. 545, 567 (2002) [wisdom of mandatory statutory minimums questioned but upheld].
While some courts have questioned the viability of mandatory statutory minimums, they continue to pay deference to Apprendi and Harris. For example, the Eleventh Circuit in United States v. Darias, 11 Fed.Appx. 899, 2006 WL 3749548 (11th Cir. 2006) held that:
“ … while it is possible that Booker' s remedial scheme could implicate mandatory minimum sentences in the future, until the Supreme Court holds that mandatory minimums violate the Fifth and Sixth Amendments of the Constitution, we are obliged to continue following Harris as precedent. As we recently stated:
”’It is not given to us to overrule the decisions of the Supreme Court. We have stated repeatedly, and with respect to the very issue presented in this appeal, that “we are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.” This is so even if we are convinced that the Supreme Court will overturn its previous decision the next time it addresses the issue.’ United States v. Gibson, 434 F.3d 1234 (11th Cir.2006) (holding that, while wounded, the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) remains binding precedent) (citations omitted). Thus, unless and until the Supreme Court holds that mandatory minimum sentences violate the Constitution, Sanchez's argument lacks merit. See also United States v. Shelton, 400 F.3d 1325, 1333 n. 10 (11th Cir.2005) (‘[w]e emphasize that the district court was, and still is, bound by the statutory minimums.’).”
This is consistent with the Seventh Circuit’s finding that the Booker rule generally requiring that facts supporting enhanced sentence be proved to jury beyond a reasonable doubt or admitted to by the defendant does not confer on district judges any discretion to give sentences below statutory minimum sentences. United States v. Rivera, 411 F.3d 864 (7th Cir. 2005), for additional opinion, see, 136 Fed. Appx. 925 (7th Cir. 2005), cert. denied, 126 S. Ct. 493 (U.S. 2005) and cert. denied, 126 S. Ct. 493 (U.S. 2005)
Finally, 18 U.S.C. § 3553(f) provides that a “safety valve” (a departure from a statutory minimum) can be applied to sentences imposed for crimes committed under the five enumerated provisions of Title 21 of the U.S. Code. See also: SG § 5C1.2(a). The courts, however, have held that these “safety valve” provisions do not apply to § 2422(b) cases. See, e.g., United States v. Anderson, 200 F.3d 1344, 1348 (11th Cir. 2000).
For all practical purposes, the only strategies in a case where the evidence assures a conviction under 2422(b) are either to arrange a plea agreement where the defendant agrees to plea to an Information alleging a crime without a ten year minimum or to fight the case aggressively through trial, with hope of finding some holes in the government’s case. The only sentencing strategy after a § 2422(b) conviction is to argue for a strict application of the mandatory 10-year minimum. In some extreme cases, the Sentencing Guidelines could suggest a sentence higher than the minimum. Until the Supreme Court declares otherwise, the 10-year minimum is mandatory. If the case is litigated through trial, or pled straight to a § 2422(b), a defendant is best advised to object to the constitutionality of the ten year minimum statute and preserve a challenge to the imposition of the mandatory minimum should the Supreme Court ever declare such sentences unconstitutional.
THIS ARTICLE IS BASED UPON A PURELY FICTIONAL CHARACTER TO EDUCATE AND ILLUSTRATE THE RELEVANT POINTS OF LAW. It is provided by John T. Floyd, Houston Criminal Defense Lawyer, as an educational device to aid in discussion of the topic.
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