INTERNET SEARCH FOR TEEN SEX A COSTLY PROPOSITION

The Ten Year Minimum for Online Solicitation of a Minor

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.