F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-1036
v. (Dist. of Colo.)
JOHN EUGENE CALP, (D.C. No. 02-CR-28-B)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
In 2002, John Eugene Calp traveled from Pennsylvania to Colorado to have
a sexual encounter with a minor child. Unfortunately for Calp, when he arrived at
a Colorado hotel he was met by federal officials who arrested him. He
subsequently pled guilty to traveling in interstate commerce for the purpose of
engaging in sex with a minor, in violation of 18 U.S.C. § 2423(b). He appeals the
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
district court’s denial of his motion to suppress evidence and the two-level
upward adjustment of his sentence under United States Sentencing Guideline
§ 2A3.2(b)(3)(B) (“USSG”), which provides enhancement when a defendant uses
a computer to facilitate travel to engage in prohibited sexual conduct with a
minor.
Calp argues on appeal that his post-arrest confession and statements, along
with the evidence found at the time of his arrest, were the fruits of an illegal
arrest, which he asserts was made without probable cause. Calp claims probable
cause did not exist because § 2423(b) cannot be violated when undercover agents
staging a sting operation merely pretend that they have minors available to engage
in sexual acts with adults. He makes the same argument to dispute the upward
adjustment of his sentence: he could not have used a computer to facilitate travel
to engage in sex with a minor if no actual minor existed.
We find that the district court did not err in denying Calp’s motion to
suppress or imposing an upward adjustment in his sentence.
Background
Between August 2001 and January 12, 2002, Calp communicated with
Rocky Mountain Fantasy Tours, an internet website advertising “fantasy tours,” a
means for adults to engage in sexual acts with minors for a fee. Unbeknownst to
Calp, the website was a sting operation set up by the U.S. Customs Service and
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maintained by the Colorado Springs Police in Colorado Springs, Colorado, where
agents, posing as persons who had minors available to engage in sexual acts,
looked for individuals willing to travel in interstate commerce to meet with
minors.
Calp, who lived in Pennsylvania, sent an email to the website expressing
his interest in the tours. He subsequently communicated with undercover agents
via telephone and mail to work out the specifics of his tour, ultimately sending a
payment of $80 to cover part of the $480 tour. As a result of these
communications, Calp arranged to travel to Colorado to engage in sexual acts
with a female, whom Calp preferred be between twelve and fourteen years of age
and blonde with the “girl-next-door” look.
Upon his arrival on January 12, 2002, at a designated hotel meeting spot in
Colorado Springs, Calp met an undercover agent posing as someone who could
lead Calp to the first stop on his fantasy tour and paid the agent the remaining
$400 owed for the tour. Without a warrant, the U.S. Customs Service then
arrested Calp and advised him of his Miranda rights. A search incident to his
arrest revealed six condoms and a digital camera. Calp waived his Miranda rights
in writing and made two key confessions: (1) he had communicated with the
website to arrange a sexual encounter with a female between twelve and fourteen
years of age and (2) he had traveled from Pennsylvania to Colorado for the
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purpose of having sex with a minor.
The government charged Calp with one count of traveling in interstate
commerce for the purpose of engaging in a sexual act with a minor in violation of
§ 2423(b) . Thereafter, Calp filed a motion to suppress asserting the same
arguments he makes here, namely that the lack of an actual minor in the sting
operation makes probable cause for his arrest impossible and eliminates the basis
for the sentence enhancement.
The district court held a hearing on Calp’s motion and denied it. The court
found that the plain language of the statute does not require an actual minor to be
involved in order for a defendant to violate the statute. Rather, the court found
that a defendant’s intent is determinative, and once a defendant travels across
state lines for the purpose of engaging in sexual acts with a minor, that person
forms the requisite intent and violates the elements of the statute.
In the face of this ruling, Calp changed his plea to guilty and entered into a
plea agreement with the government in which he reserved the right to appeal the
denial of his motion. At the sentencing hearing, the court stated, and Calp
agreed, that this court’s opinion in United States v. Robertson , 350 F.3d 1109
(10th Cir. 2003), foreclosed Calp’s objection to a two-level upward adjustment in
his sentence under USSG § 2A3.2(b)(3)(B) for use of a computer in facilitating
travel to engage in a prohibited sexual act.
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Discussion
I. Probable Cause
This court affirms a district court’s factual findings regarding a motion to
suppress unless they were clearly erroneous. United States v. Minjares-Alvarez,
264 F.3d 980, 983 – 84 (10th Cir. 2001). However, we review a district court’s
legal findings de novo. Id.
Calp argues that all evidence obtained after his arrest, including his
confession, should be suppressed because probable cause to arrest him did not
exist as he never interacted, communicated, or met with a real minor. Calp bases
his argument on the notion that a defendant cannot form the requisite intent to
violate § 2423(b), and thus probable cause cannot exist, when an undercover
agent pretends to have minors available to engage in sexual acts. 1 Following
Calp’s logic, then, no reasonable officer would believe that probable cause
existed to arrest if no actual minor was involved.
We disagree with Calp’s logic. Law enforcement officers may reasonably
rely on the plain language of a statute in forming the probable cause necessary to
make an arrest. Section 2423(b), like all other statutes, is an act of Congress
presumed to be constitutional until demonstrated otherwise. See United States v.
1
A defendant violates § 2423(b) when he (1) “travels in interstate
commerce” (2) “for the purpose of engaging in any illicit sexual conduct” (3) with
a minor. 18 U.S.C. § 2423(b).
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Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001). Probable cause to arrest a suspect
exists if, “at th[e] moment [of the arrest,] the facts and circumstances within [the
arresting officers’] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent [officer] in believing that the
[suspect] had committed or was committing an offense.” United States v. Snow,
82 F.3d 935, 942 (10th Cir. 1996) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Probable cause to arrest a suspect exists even if a presumptively constitutional
statute is later found to be unconstitutional. See Michigan v. DeFillippo, 443
U.S. 31, 37 – 38 (1979) (finding that probable cause exists when an officer makes
an arrest pursuant to a presumptively valid statute that is later found to be
unconstitutional). Thus, when the officers arrested Calp for violating a
presumptively constitutional statute, they did so with probable cause as long as
they had an objectively reasonable belief that a crime had been committed. See
id.
The relevant inquiry here, then, is not what Calp knew. Rather it is what
the arresting officers objectively knew when they apprehended Calp. First, the
officers knew Calp was their suspect when he met them at the designated spot in
Colorado Springs and paid the balance owed for the “fantasy tour.” Calp was the
only person who would know where to meet the officers for the encounter.
Second, they knew that Calp had traveled from Pennsylvania to Colorado.
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Indeed, Calp admitted that he traveled in interstate commerce for the purpose of
engaging in prohibited sexual acts with a minor, and he does not contend that he
traveled from Pennsylvania to Colorado Springs for any other purpose. See
United States v. Han, 230 F.3d 560, 563 (2d Cir. 2000) (defendant violated §
2423(b) when he formed his plan to engage in sexual activity with a minor before
crossing state border and manifested his intent by doing so and by going to
arranged meeting place). What the officers did not know was Calp’s argument
that the undercover sting required a real minor. While this may be a plausible
argument if Calp had challenged the constitutionality of the statute, he has not
done so. 2 Thus, because at the time of the arrest the officers reasonably relied on
a presumptively valid statute, probable cause existed and the district court did not
err.
II. Sentence Enhancement
Calp’s second argument is that the two-level upward adjustment in his
sentence was unjustified because he never communicated via computer or internet
with an actual minor. We review the district court’s upward adjustment de novo.
See United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir. 2003). Calp
2
We note that there is no question about the good faith of the officers
making the arrest in this case. In these circumstances, we also conclude that the
exclusionary rule would not require the suppression of the evidence. United
States v. Vanness, 342 F.3d 1093, 1098 (10th Cir. 2003).
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acknowledges that this court rejected the same argument he now makes in
Robertson and United States v. McGraw, 351 F.3d 443 (10th Cir. 2003).
In both Robertson and McGraw, the defendants communicated with
undercover agents via computer believing that the agents had control over minors
with whom the defendants could engage in sexual acts for a fee. In both cases we
found that “because the computer made it substantially easier for [defendant] to
find and book a ‘fantasy tour,’” the computer was used to facilitate the illegal
transaction. Robertson, 350 F.3d at 1115 (citing McGraw, 351 F.3d at 446).
Moreover, we found that USSG § 2A3.2(b)(3) “applies if the computer or internet
is used to facilitate travel by a ‘participant.’” Id. at 1116.
Application note 1 of USSG § 2A3.2(b)(3)(B) defines “participant” as
someone who “is criminally responsible for the commission of the offense, but
need not have been convicted.” Like the defendant in Robertson, Calp was a
participant who used a computer to facilitate meeting a minor with whom he
believed would engage in sexual acts. Thus, the district court did not err when it
enhanced Calp’s sentence pursuant to USSG § 2A3.2(b)(3).
WE AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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