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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10440
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00519-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAYTON JUNIOR THORNBURG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 1, 2019)
Before TJOFLAT, JORDAN and HULL, Circuit Judges.
PER CURIAM:
After a bench trial, Clayton Thornburg was convicted of attempting to
knowingly induce or entice a minor to engage in sexual activity, in violation of 18
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U.S.C. § 2422(b), attempting to transfer obscene material to a minor under 16
years of age, in violation of 18 U.S.C. § 1470, committing a felony offense
involving a minor while required to register as a sex offender, in violation of 18
U.S.C. § 2260A, and transporting child pornography, in violation of 18 U.S.C.
§§ 2252(a)(1) and (b)(1). He is serving a total 336-month sentence.
On appeal, Thornburg challenges his conviction for attempting to entice a
minor to engage in sexual activity. He argues that the government did not produce
sufficient evidence to prove that he intentionally took a substantial step toward the
commission of his offense. Thornburg also challenges the district court’s
application of a two-level enhancement under U.S.S.G. § 2G2.2(b)(6) for his use of
a computer in calculating his offense level for transporting child pornography. He
contends that, because almost all child pornography cases involve the use of a
computer, the base offense level took such use into account.
After careful and thorough review, we affirm Thornburg’s convictions and
sentences. We first recount the relevant trial evidence and procedural history in
this case.
I. TRIAL EVIDENCE
The charges arose from Thornburg’s online communications with an
undercover agent posing as a minor from August through November of 2015.
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Department of Homeland Security Investigations Special Agent Tavey Garcia
established a fictitious online identity of a 13-year-old girl. Agent Garcia used that
identity on online platforms that are known by law enforcement to be prolific with
individuals who have a sexual interest in children, including MBuzzy.com, a social
media chat application accessible through mobile devices and the internet, and Kik
Messenger, a chat application for mobile devices.
In connection with this case, Agent Garcia accessed MBuzzy.com, and in
her MBuzzy profile, Agent Garcia identified herself as “JMK,” a 13-year-old girl
in middle school. On August 6, 2015, someone using the profile name
“loves2lickpussi,” who was later determined to be Thornburg, contacted JMK on
MBuzzy.com. Thornburg’s profile indicated that he was a 43-year-old male who
was “feeling naughty.”
During Thornburg’s and JMK’s initial conversations on MBuzzy.com in
August 2015, JMK said that she was 13 years old and lived in Florida. When
Thornburg found out that JMK was 13, JMK offered to stop chatting, but
Thornburg stated that he was still willing to chat with her. Thornburg told JMK
that he was 43 years old, “old enough to be [her] daddy.”
Thornburg suggested chatting with JMK on Kik Messenger, and JMK said
that she did not like to give out her Kik username because Kik users must be 18,
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and she previously had been kicked off Kik for being underaged. Thornburg
assured JMK that she was not the first underaged girl he had talked to on Kik and
that he would “never report and turn anybody in for any reason.” He also warned
JMK that she might not like his Kik username because it might be “too naughty”
for her. Thornburg revealed that his Kik username was “luv2beurdaddi2.”
Agent Garcia viewed Thornburg’s profile on Kik, saw that he claimed his
name was “Sam Thomas,” and began chatting with him on Kik. Thornburg viewed
JMK’s profile, which included a picture, and said to her: “Wow. Damn. You’re
freaking gorgeous. So is that a good thing I’m old enough to be your dad?”
As the Kik conversations continued in August 2015, the messages became
very graphic and sexual in nature. Thornburg expressed his desire to be with JMK
and his physical attraction to her, stating that “I am liking the fact you’re young
more and more, babe.” Thornburg then began to describe sex acts that he wanted
to do with JMK. Thornburg stated “[y]ou’re going to be fun to be with in and out
of bed,” and JMK asked what he was going to do with her. Thornburg stated that
he would kiss her all over her body and hoped that they would make love. JMK
asked if that would hurt, and Thornburg replied, “[i]f you let me inside you the first
time, yes, it’s going to hurt some, but it will be gentle—I’m sorry—but I’ll be
gentle as I can be.” Thornburg stated that he could not wait to “taste” JMK and to
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lick her “boobs and vagina.” Thornburg explained what that would feel like for
JMK, and he asked her if she wanted to feel his penis and have him touch her
naked body. Thornburg asked to see her naked body, but JMK claimed that her
camera was broken. Thornburg asked JMK about calling him “daddy” and
explained that some girls liked to do that during sex.
During September 2015, the messages continued with JMK saying that they
probably should not be together because they could get in trouble and because
Thornburg had work. Thornburg replied that he was “not worried about the
trouble part.” He told JMK that “[t]he funny part is that it doesn’t have to be
anything sexual and you have grown on me more and more every time we’ve
talked,” and apologized for not contacting her more frequently. JMK replied,
“Look. I’m 13-and-a-half. I can tell when I’m getting played, you know?” but
Thornburg assured her that he was not playing her.
On September 28, 2015, Thornburg began sending JMK pornographic
videos and images, the first being a video of oral sex. The video was accompanied
by a message from Thornburg expressing his desire to engage in oral sex with
JMK but that he would have to wait until he saw her.
On October 7, 2015, Thornburg asked JMK whether she liked the size of his
penis, and she replied that she did not know and would have to trust him.
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Thornburg then sent a picture of an erect penis, which he claimed was a photo of
himself. JMK expressed concern about the size of his penis, and Thornburg
assured her that it would fit inside her and that he would use lubrication.
Two days later, Thornburg sent a video of an adult male having sex with a
teenage girl so JMK could see “what it’s like for a young girl to have sex.” He told
JMK that the girl in the video was probably 14 or 15, and that he “wished it was
[us].” Thornburg then sent JMK an image of child pornography and told her that
he believed that the girl in the image was younger than JMK. He said that the girl
in the image was too young for his taste and that he preferred JMK’s age or older.
Thornburg told JMK, graphically, of his strong desire to have sex with her
but stated that she would have to want to have sex with him as well. Thornburg
told JMK that he would teach her how to perform oral sex and described the
instructions in graphic detail.
As the conversations continued, Thornburg asked JMK, “[s]o after showing
you the videos, how does that make you feel about sex?” Thornburg asked JMK to
send him nude photos of herself, but JMK claimed that she could not. Thornburg
told JMK that he would love to have photos or a video of their first time having
sex.
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Thornburg then sent JMK another pornographic video of oral sex and asked
if he could do that to her. Throughout their conversations, Thornburg repeatedly
referred to the fact that he was old enough to be JMK’s dad and referred to himself
as her “daddy.” Thornburg stated “I can’t wait for you to say [daddy] while I’m
inside you,” and he then sent JMK a video showing an adult male engaged in a sex
act with a child around 10 years old. He told JMK that he wanted to perform the
same act with her as was depicted in the video. Thornburg told JMK that he was
sending her the videos because he wanted her to get an idea of what might happen.
Thornburg then sent JMK three more videos, one showing two women
engaged in a sex act, one showing a child performing a sex act on an adult male,
and one showing a woman performing a sex act on a male. Thornburg stated that
JMK could “practice” on him all she wanted and asked if she promised to practice
on him. Thornburg said that he would be there soon and that JMK was “going to
show daddy [her] pussy.” He later stated “I know you’re very curious about sex,
and I’d be very glad to teach you about it like a daddy should be.” Thornburg then
sent JMK two videos depicting three people engaging in sex acts and afterward
discussed having sex with JMK and another girl at the same time.
Thornburg stated that he wanted to be with JMK even if her mother was
home, and JMK said that her mother would not approve and that Thornburg would
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end up in jail. He replied, “I know society would look down upon it, but I don’t
care what society thinks. I care about what you think. He stated that he liked
JMK’s age and that he “get[s] to be [her] naughty daddy. . . . And fuck [her]
naughty little princess’s pussy.”
Thornburg asked JMK whether she was really going to let him do what he
wanted sexually. JMK said yes, and then Thornburg sent her a video of a woman
bound with her legs and arms spread apart and engaged in a sex act with a machine
or foreign object, explaining that it was part of a master/submissive lifestyle, and
asked JMK what she thought. Thornburg also asked if JMK knew what bestiality
was, and he sent her a video of a woman receiving oral sex from a dog.
Thornburg and JMK began discussing him travelling to Florida to have sex
with her. Thornburg explained details such as waiting for JMK at the gate of her
apartment complex, what JMK would be wearing, and what time JMK’s mother
would leave. He also explained how he planned to have sex with JMK when he
arrived. He then sent JMK another pornographic video, telling her that the girl
appeared to be about her age.
Thornburg never met with JMK as discussed. After Agent Garcia
determined that the Kik user was Thornburg, law enforcement obtained warrants to
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search his residence and arrest him. Thornburg was arrested and a search warrant
was executed at his residence in Mississippi on November 18, 2015.
II. PROCEDURAL HISTORY
A. Indictment
In a second superseding indictment, a federal grand jury indicted Thornburg
with: (1) attempting to knowingly induce or entice a minor to engage in sexual
activity, in violation of 18 U.S.C. § 2422(b) (Count 1); (2) attempting to transfer
obscene material to a minor under 16 years of age, in violation of 18 U.S.C. § 1470
(Count 2); (3) committing a felony offense involving a minor while being required
to register as a sex offender, in violation of 18 U.S.C. § 2260A (Count 3); and
(4) transporting child pornography, in violation of 18 U.S.C. §§ 2252(a)(1) and
(b)(1) (Count 4).1
B. Trial
The district court held a two-day bench trial. Following the trial, the district
court determined that the government had proven each element of all four
remaining counts and found Thornburg guilty.
1
Thornburg was also charged with possessing child pornography, in violation of 18
U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Count 5), but that count was dismissed without prejudice on
the first day of trial.
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C. Presentence Investigation Report
Thornburg’s presentence investigation report (“PSI”) grouped Counts 1 and
2 (attempting to entice a minor to engage in sexual activity and attempting to
transfer obscene material to a minor under 16) into a single group and, pursuant to
U.S.S.G. § 2G1.3, assigned a base offense level of 28. The PSI added two levels
because the offense involved the use of a computer or an interactive computer
service to entice a minor to engage in prohibited sexual conduct, pursuant to
U.S.S.G. § 2G1.3(b)(3), which resulted in an adjusted offense level of 30 for the
first group.
Count 4 (transporting child pornography) was placed by itself into a second
group and, pursuant to U.S.S.G. § 2G2.2(a)(2), assigned a base offense level of 22.
The PSI applied several specific offense characteristics to the second group,
including a two-level enhancement because the offense involved the use of a
computer for the possession, transmission, receipt, or distribution of child
pornography, pursuant to § 2G2.2(b)(6). After applying all of the enhancements,
Thornburg’s adjusted offense level for the second group was 47. Pursuant to
U.S.S.G. § 3D1.4, Thornburg’s combined adjusted offense level was 47, which
was also his total offense level.
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The PSI also noted that, pursuant to U.S.S.G. § 2A3.6(b), Count 3
(committing a felony offense involving a minor while being required to register as
a sex offender) had a mandatory ten-year term of imprisonment, to run
consecutively to any other sentence imposed.
Turning to Thornburg’s criminal history, the PSI reported that he had Illinois
convictions for indecent solicitation of a child/aggravated criminal sexual abuse
and unlawful possession of child pornography in 2004 and 2009, respectively. 2
Thornburg’s criminal history score was seven, which placed him in a criminal
history category of IV. Because Thornburg was a repeat and dangerous sex
offender against minors, his criminal history category was increased to V, pursuant
to U.S.S.G. § 4B1.5. With a total offense level of 47 and a criminal history
category of V, Thornburg’s advisory guideline range was life imprisonment.
D. Objections to PSI
Thornburg made several objections to the PSI, including an objection to all
of the specific offense characteristics applied to Counts 1, 2, and 4. He argued that
2
Before trial, the government and Thornburg stipulated to the following facts, among
others: (1) Thornburg is a convicted sex offender required to register in Mississippi; (2) he was
convicted of indecent solicitation of a child in Illinois in 2004; (3) he was convicted of
possession of child pornography in Illinois in 2009; and (4) he had admitted to law enforcement
officers in 2006 that he previously had been arrested for attempting to meet an underage girl he
had met on the internet.
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the specific offense characteristics were inherent to his crimes of conviction, and,
thus, were not unique and could lead to unreasonable sentences.
E. Sentencing
At sentencing, Thornburg reiterated his objections. In particular, Thornburg
objected to the application of an enhancement for computer use, pursuant to
§ 2G2.2(b)(6), arguing that the use of a cell phone or computer should not trigger
an enhancement because such devices are used in almost every child pornography
case. Overruling Thornburg’s objection, the district court concluded that the
computer enhancement was called for in the Guidelines, but agreed with
Thornburg’s reasoning and stated that it would take his computer enhancement
arguments into consideration when making a variance to his sentence.
The district court adopted the PSI’s facts and guideline calculations and
noted that the advisory guideline range was life imprisonment. After hearing from
both parties, the district court imposed a total sentence of 336 months’
imprisonment, consisting of 216 months on each of Counts 1 and 4 and 120
months on Count 2, to run concurrently, and 120 months on Count 3, to run
consecutively to all other counts, which represented a downward variance from the
advisory guideline range of life imprisonment.
III. SUFFICIENCY OF THE EVIDENCE
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On appeal, Thornburg argues that the evidence was insufficient to support
his Count 1 conviction for attempting to induce or entice a minor to engage in
sexual activity under 18 U.S.C. § 2422(b). 3 Thornburg contends that he did not
take a substantial step toward enticing a minor to engage in a sex act because he
never talked to the person over the phone, but rather, communicated with her
through only electronic means. Also, he argues that one of his chat messages
demonstrates that he was willing to maintain a non-sexual relationship with the
13-year-old girl, showing that he did not intend to entice her to engage in a sex act.
Section 2422(b) criminalizes both the completed offense of enticing a child,
and an attempt to commit the offense, as follows:
Whoever, using the mail or any facility or means of interstate or foreign
commerce, . . . 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.
18 U.S.C. § 2422(b) (emphasis added).
A defendant may be convicted of an attempt under § 2422(b) based on
conduct directed toward a fictitious minor. United States v. Yost, 479 F.3d 815,
3
We review de novo whether sufficient evidence supports a conviction, resolving all
reasonable inferences in favor of the verdict. United States v. Farley, 607 F.3d 1294, 1333 (11th
Cir. 2010). We will not reverse unless no reasonable trier of fact could find guilt beyond a
reasonable doubt. Id.
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819 & n.2 (11th Cir. 2007). A finding that a defendant committed the crime of
attempt requires proof that the defendant: (1) had the required intent to commit the
underlying charged crime; and (2) took actions that constituted a “substantial step”
toward the commission of the crime. Id. at 819.
To prove the intent element of a § 2422(b) offense, the government must
show that the “defendant intended to cause assent on the part of the minor, not that
[the defendant] acted with the specific intent to engage in sexual activity.” United
States v. Lee, 603 F.3d 904, 914 (11th Cir. 2010) (quotation marks omitted). It is
the persuasion, inducement, enticement, or coercion of the minor, rather than the
sex act itself, that is prohibited by the statute. United States v. Murrell, 368 F.3d
1283, 1286 (11th Cir. 2004) (involving § 2422(b)). An attempt to “stimulate or
cause the minor to engage in sexual activity” fits the statutory definition of
inducement. Id. at 1287.
To prove the conduct element of a § 2422(b) attempt, the government must
prove that the defendant took a substantial step toward causing assent on the part
of the minor, not necessarily toward causing actual sexual contact. Lee, 603 F.3d
at 914. A defendant takes a substantial step toward completing a crime when his
“objective acts mark his conduct as criminal and, as a whole, strongly corroborate
the required culpability.” Yost, 479 F.3d at 819 (quotation marks omitted).
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In determining whether the record supports a finding that the defendant took
a substantial step in committing a § 2422(b) offense, we look at the totality of the
defendant’s conduct. Lee, 603 F.3d at 916. This is a fact-intensive analysis that
does not categorically require any particular activity or course of conduct on the
part of the defendant. United States v. Rothenberg, 610 F.3d 621, 627 (11th Cir.
2010).
This Court has explained that the “very nature of the underlying offense—
persuading, inducing, or enticing engagement in unlawful sexual activity—
necessarily contemplates oral or written communications as the principal if not the
exclusive means of committing the offense.” Id. (upholding sentencing
enhancements based on § 2422(b)-type misconduct where the defendant engaged
in online chats with adults who had influence over young children, and he
graphically instructed the adults as to how to molest the children and persuade
them to comply with the abuse).
For example, in Yost, this Court determined that the substantial step
requirement was met where the defendant sent messages to the minor in which he
asked her to perform sex acts on him, posted a picture of his genitalia online, spoke
to the minor by phone, and arranged to meet her so they could engage in sexual
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activity, even though he did not arrive at the designated time and place. 479 F.3d
at 819-20.
Similarly, in Lee, this Court determined that the substantial step requirement
was met where the defendant, over the course of several months, discussed in
graphic detail when and how he wanted to engage in sexual acts with the minors,
sent graphic photographs to the minors, and promised the minors gifts. 603 F.3d at
915.
In both of these decisions, after weighing the totality of the defendants’
actions, we concluded that communication alone constituted a substantial step. See
Rothenberg, 610 F.3d at 626-27 (discussing Lee and Yost). We do “not require
firm plans to travel where . . . the defendant, for several months, took other steps
sufficient to achieve the end that is the object of the attempt.” Lee, 603 F.3d at
915.
As an initial matter, Thornburg challenges the sufficiency of the evidence
for only his Count 1 conviction under 18 U.S.C. § 2422(b). Although he
references his guilt as a whole in the argument heading in his brief, he expressly
discusses the elements of § 2422(b) only in his argument. Therefore, Thornburg
has abandoned any sufficiency argument regarding the other three counts of his
conviction. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
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2003) (stating that issues or claims not clearly raised by a party on appeal are
considered abandoned).
Here, the trial evidence, recounted above, sufficiently proves that Thornburg
intended to induce or entice a minor to engage in sexual activity in violation of
§ 2422(b). See Yost, 479 F.3d at 819; Murrell, 368 F.3d at 1286. Throughout
Thornburg’s chat messages with JMK, he told her that he wanted to engage in
various sex acts with her, but only if she wanted to, and explained to her what the
sex acts would feel like. He encouraged her to send him nude photos of herself.
Thornburg told her that he intended to teach her how to perform sex acts on him
and asked her to promise that she would practice sex acts on him. Thornburg sent
the purported 13-year-old girl pornographic videos and images as a means of
teaching her various sex acts and discussed the videos and images with her to make
her feel more comfortable about engaging in sex acts with him.
Also, considering the totality of Thornburg’s conduct, the evidence amply
supports that Thornburg took a substantial step toward causing the purported minor
to assent to illicit sexual activity. See Lee, 603 F.3d at 915-16; Yost, 479 F.3d at
819-20. Communications alone are sufficient to support such a conviction. See
Rothenberg, 610 F.3d at 627. And the communications here show that Thornburg
attempted to induce the fictious 13-year-old girl into engaging in sex acts through
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desensitizing her to sexual imagery and conversation by sending and discussing
pornographic images and videos, teaching her how to perform different sex acts,
sending her a picture of his penis, encouraging her to send him nude photos, and
planning to eventually meet her at her home in Florida to engage in sex acts with
her.
Thornburg was not required to engage in any particular action or course of
conduct to take a substantial step toward committing a § 2422(b) offense, so it is
not dispositive that he did not speak with the purported minor over the phone. See
id. Similarly, although Thornburg stated once that he would be willing to maintain
a platonic relationship with the purported minor, this isolated statement is
outweighed by the repeated graphic evidence in the record that “strongly
corroborate[s] the required culpability” to support a conviction under § 2422(b).
See Yost, 479 F.3d at 819. The evidence, construed in the light most favorable to
the verdict, shows that Thornburg did not want to be the purported minor’s friend,
rather he intended to entice her to engage in numerous sex acts with him. See
Farley, 607 F.3d at 1333. The trial evidence is more than sufficient to allow a
reasonable trier of fact to find Thornburg guilty beyond a reasonable doubt. See
id. We thus affirm Thornburg’s conviction under § 2422(b).
IV. COMPUTER USE ENHANCEMENT UNDER U.S.S.G. § 2G2.2(b)(6)
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Thornburg also argues that the district court improperly applied a two-level
enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a computer during the
commission of the Count 4 offense, which was applied in calculating his offense
level for his conviction for transporting child pornography in violation of 18
U.S.C. §§ 2252(a)(1) and (b)(1). He contends that the underlying base offense
level already accounted for the use of a computer because virtually every child
pornography case involves the use of a computer. 4
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” De La Cruz Suarez, 601 F.3d at 1220 (quotation marks omitted).
Further, “[d]ouble counting a factor during sentencing is permissible if the
Sentencing Commission intended the result, and if the result is permissible because
each section concerns conceptually separate notions related to sentencing.” Id.
(quotation marks omitted). We “presume[] the Sentencing Commission intended
to apply separate guideline sections cumulatively, unless specifically directed
otherwise.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir.
1999).
4
We review de novo a claim of double counting under the Guidelines. United States v.
De La Cruz Suarez, 601 F.3d 1202, 1220 (11th Cir. 2010).
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The Guidelines provide for a two-level increase to a defendant’s base
offense level if the offense involves the use of a computer or an interactive
computer service for the possession, transmission, receipt, or distribution of
material, or for accessing with intent to view material involving the sexual
exploitation of a minor. U.S.S.G. § 2G2.2(b)(6).
We have determined that an enhancement under § 2G2.2(b)(6) does not
amount to double counting when it is applied to a conviction under 18 U.S.C.
§ 2252(a)(1), which makes it unlawful to “knowingly transport[] or ship[] [child
pornography] using any means or facility of interstate or foreign commerce.”
United States v. Little, 864 F.3d 1283, 1291 (11th Cir. 2017) (quotations omitted).
The base offense level applicable to § 2252(a)(1), we explained, does not fully
account for the use of a computer because that base offense level may be applied
whether a defendant uses a computer or not. Id.
Under our prior precedent rule, we are bound by our prior panel decisions
unless and until they are overruled by the Supreme Court or this Court en banc.
United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Therefore,
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Thornburg’s argument that the computer enhancement under § 2G2.2(b)(6) was
improperly applied is foreclosed by our binding precedent. Id.5
In any event, we note that the district court’s imposition of the computer
enhancement under § 2G2.2(b)(6) was harmless. Thornburg’s combined adjusted
offense level was 47, which was also his total offense level. However, a total
offense level of more than 43 is treated as an offense level of 43 pursuant to
U.S.S.G. ch. 5, pt. A, cmt. n.2 (2016). Without the two-level enhancement,
Thornburg’s total adjusted offense level would have been 45, which the district
court still would have been obligated to treat as 43. Therefore, any alleged error in
the district court’s application of § 2G2.2(b)(6) was harmless. See United States v.
Sarras, 575 F.3d 1191, 1220 n.39 (11th Cir. 2009) (stating that the alleged error
was harmless because total offense level would have remained the same). We
affirm the district court’s application of the enhancement under § 2G2.2(b)(6).
V. CONCLUSION
For the foregoing reasons, we affirm Thornburg’s four convictions and
sentences.
AFFIRMED.
5
Thornburg specifically challenges only the application of the computer enhancement to
his Count 4 conviction under § 2252(a)(1), and, thus, he has abandoned any challenge against the
other computer enhancement that was applied against him. See Jernigan, 341 F.3d at 1283 n.8.
21
United States v. Clayton Junior Thornburg
Combined Opinion