FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-30120
v. D.C. No.
MARK ANDREW CHRISTENSEN, 1:06-cr-00085-RFC
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-30121
Plaintiff-Appellee,
v. D.C. No.
1:07-cr-00101-RFC
MARK ANDREW CHRISTENSEN,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
February 3, 2009—Portland, Oregon
Filed March 24, 2010
Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and Bruce S. Jenkins,* District Judge.
Opinion by Judge Paez
*The Honorable Bruce S. Jenkins, Senior United States District Judge
for the District of Utah, sitting by designation.
4747
UNITED STATES v. CHRISTENSEN 4749
COUNSEL
Kelly J. Varnes, Billings, Montana, for defendant-appellant
Mark Andrew Christensen.
Leif M. Johnson, Billings, Montana, for plaintiff-appellee
United States of America.
OPINION
PAEZ, Circuit Judge:
Appellant Mark Andrew Christensen (Christensen) was
convicted and sentenced to 210 months’ imprisonment for
enticement of a minor to engage in sexual activity and
obstruction of justice for failing to appear at trial. On appeal,
Christensen initially asserted that the district court erred in
applying a two-level enhancement under United States Sen-
tencing Guidelines (U.S.S.G.) § 2G1.3(b)(2)(B) (2005) for
unduly influencing a minor to engage in prohibited sexual
conduct. Christensen relied on precedent from the Sixth and
Seventh Circuits to argue that the enhancement should not
apply where the “minor” is actually an undercover officer
posing as a minor. See United States v. Chriswell, 401 F.3d
459, 469 (6th Cir. 2005); United States v. Mitchell, 353 F.3d
4750 UNITED STATES v. CHRISTENSEN
552, 562 (7th Cir. 2003). In doing so, he argued that we
should reject the contrary view of the Eleventh Circuit in
United States v. Vance, 494 F.3d 985, 996 (11th Cir. 2007).
After the case was submitted, the United States Sentencing
Commission (the “Commission”) amended the Commentary
to § 2G1.3(b)(2)(B) such that it now precisely reflects Chris-
tensen’s argument: namely, that § 2G1.3(b)(2)(B)’s enhance-
ment should not be applied where the “minor” is actually an
undercover officer. Christensen argues that this amendment to
the Guidelines should be applied retroactively to his sentenc-
ing, and that we should thus find that the district court erred
in applying the two-level enhancement. He also challenges
the district court’s failure to comply with Application Note 3
to U.S.S.G. § 2J1.6 in determining the Guidelines range for
the multiple counts of conviction. We have jurisdiction pursu-
ant to 28 U.S.C. § 1291, and because we agree that the
amendment to § 2G1.3(b)(2)(B) should apply retroactively to
Christensen’s sentencing, we reverse and remand for resen-
tencing.
I. BACKGROUND
Between January and June, 2006, using the screenname
“hornyguy59405,” Christensen participated in several online
instant messaging chats with an individual posing as a female
under the age of sixteen. That individual was actually Special
Agent Dan Vierthaler (Vierthaler) of the Billings, Montana
Office of the Federal Bureau of Investigation (FBI).1
During these online conversations, Christensen expressed
the desire to have sex with the fictitious minor. On at least
two occasions, Christensen sent her several photographs,
including images of an adult male’s penis. Christensen also
expressed interest in having sex with the fictitious minor’s
1
We refer to this individual as the “fictitious minor” and use the female
pronoun.
UNITED STATES v. CHRISTENSEN 4751
friend, whom he also understood to be a female under the age
of sixteen.
Christensen informed the fictitious minor that he had a
truck in which she could listen to music and asked if she
would be willing to have sex with him there. He also offered
her money to have sex with him, and more money if she
found someone her age in the Great Falls area to have sex
with him as well.
Christensen subsequently contacted the fictitious minor to
arrange a meeting to have sex. When Christensen arrived to
meet the fictitious minor, he was arrested by law enforcement
agents. Christensen subsequently confirmed that “horny-
guy59405” was his screenname, and admitted traveling from
Great Falls to Billings to have sex with the fictitious minor.
Christensen was indicted for coercion and enticement of an
individual under the age of eighteen to engage in sexual activ-
ity in violation of 18 U.S.C. § 2422(b). Christensen was also
indicted for failing to appear for trial, in violation of 18
U.S.C. § 3146. Investigation revealed that Christensen had
left Montana with a trailer that he bought several weeks
before the scheduled trial.
Christensen pled guilty to both charges. The court sen-
tenced Christensen to 186 months’ imprisonment on the
enticement count, and 24 months’ consecutive imprisonment
on the failure to appear count, totaling 210 months’ imprison-
ment. Christensen timely appealed his sentence.
II. STANDARD OF REVIEW
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo, the district court’s factual determina-
tions for clear error, and the district court’s applications of the
Guidelines to the facts for abuse of discretion. United States
v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008).
4752 UNITED STATES v. CHRISTENSEN
III. DISCUSSION
A. Application of U.S.S.G. § 2G1.3(b)(2)(B)
In determining the advisory Sentencing Guidelines range
for Christensen’s offenses, the district court applied the two-
level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) (2005)
for unduly influencing a minor to engage in prohibited sexual
conduct. That provision provides for such an enhancement
where “a participant otherwise unduly influenced a minor to
engage in prohibited sexual conduct.” Christensen asserts on
appeal, as he did during sentencing, that the enhancement was
inapplicable because the fictitious minor was actually an
undercover officer, not a minor. Christensen reasons that he
could not have unduly influenced a minor because there was
never a minor participating in the online conversations.
To support that argument, Christensen initially relied on
favorable case law from the Sixth and Seventh Circuits. See
Chriswell, 401 F.3d at 469; Mitchell, 353 F.3d at 562. The
government, on the other hand, asserted that the Eleventh Cir-
cuit’s approach to the issue in Vance should control. 494 F.3d
at 996 (concluding that “[t]he fact that the minors actually
were fictitious does not change the applicability of the two-
level enhancement pursuant to § 2G1.3(b)(2)(B)”).
After we submitted the case, the United States Sentencing
Commission amended the Commentary to § 2G1.3(b)(2)(B)
such that it now precisely mirrors Christensen’s argument:
namely, that § 2G1.3(b)(2)(B)’s sentencing enhancement
should not be applied where the “minor” is actually an under-
cover officer. See § 2G1.3(b)(2)(B) cmt. n.3(B) (2009).
Accordingly, we ordered supplemental briefing on the issue
of whether this amendment to the Guidelines should be
applied retroactively to Christensen’s sentencing. The govern-
ment’s supplemental brief conceded that the amendment
should apply retroactively, and we agree.
UNITED STATES v. CHRISTENSEN 4753
[1] In the 2005 edition of the Guidelines—which the dis-
trict court relied upon in calculating Christensen’s sentencing
range—Application Note 1 to § 2G1.3(b)(2)(B) defined
“minor” as:
(A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not,
who a law enforcement officer represented to a par-
ticipant (i) had not attained the age of 18 years, and
(ii) could be provided for the purposes of engaging
in sexually explicit conduct; or (C) an undercover
law enforcement officer who represented to a partici-
pant that the officer had not attained the age of 18
years.
Id. cmt. n.1 (2005).
Application Note 3 of that same section provided that:
(B) Undue Influence.—In determining whether sub-
section (b)(2)(B) applies, the court should closely
consider the facts of the case to determine whether
a participant’s influence over the minor compro-
mised the voluntariness of the minor’s behavior.
In a case in which a participant is at least 10 years
older than the minor, there shall be a rebuttable pre-
sumption, for purposes of subsection (b)(2)(B), that
such participant unduly influenced the minor to
engage in prohibited sexual conduct. In such a case,
some degree of influence can be presumed because
of the substantial difference in age between the par-
ticipant and the minor.
Id. cmt. n.3(B) (2005). In his opening brief on appeal, Chris-
tensen argued that, when those application notes are read in
concert, there is latent ambiguity whether the “undue influ-
ence” sentencing enhancement should apply where the only
4754 UNITED STATES v. CHRISTENSEN
“minor” involved in the offense is an undercover law enforce-
ment officer. Fortuitously, during the pendency of this appeal,
the Commission resolved that ambiguity in the latest revisions
to the Guidelines. Amendment 732 to the Sentencing Guide-
lines, U.S.S.G. Manual supp. app. C (2009), which became
effective November 1, 2009, added the following critical lan-
guage to the Commentary: “However, subsection (b)(2)(B)
does not apply in a case in which the only ‘minor’ (as defined
in Application Note 1) involved in the offense is an under-
cover law enforcement officer.” Id. cmt. n.3(B) (2009). Under
that provision, had Christensen been sentenced after Novem-
ber 1, 2009, the district court’s application of the two-step
enhancement would clearly have been in error. But, because
amendments to the Guidelines are not automatically applied
retroactively, United States v. Sanders, 67 F.3d 855, 856 (9th
Cir. 1995), the dispositive issue presented is whether the
amended Commentary to § 2G1.3(b)(2)(B) should apply to
Christensen’s 2005 sentencing.
In order for amendments to the Guidelines to apply retroac-
tively, certain criteria must be met. Generally, “we may con-
sider [a subsequent amendment] of the Sentencing Guidelines
only if that amendment is a clarification of existing law rather
than a substantive change in the law.” United States v. Mor-
gan, 376 F.3d 1002, 1010 (9th Cir. 2004). See also Sanders,
67 F.3d at 856 (“The Ninth Circuit has consistently stated that
when an amendment is a clarification, rather than an alter-
ation, of existing law, then it should be used in interpreting
the provision in question retroactively.”); U.S.S.G.
§ 1B1.11(b)(2) (2009) (providing that “if a court applies an
earlier edition of the Guidelines Manual, the court shall con-
sider subsequent amendments, to the extent that such amend-
ments are clarifying rather than substantive changes”).
[2] Under Morgan, three “prominent” factors we consider
in determining whether an amendment to the Guidelines
should be applied retroactively are: (1) whether the amend-
ment is included on a list of retroactive amendments in
UNITED STATES v. CHRISTENSEN 4755
U.S.S.G. § 1B1.10(c); (2) whether the Commission character-
ized the amendment as a clarification; and (3) whether the
amendment resolves a circuit conflict. Morgan, 376 F.3d at
1011. Amendment 732 is not listed as a retroactive amend-
ment under § 1B1.10(c). Nor did the Commission describe
Amendment 732 as a clarification. It did, however, state that
Amendment 732 was intended to resolve a circuit conflict. In
a similar context, we recently held that where an amendment
“was made for the express purpose of resolving a conflict
among the circuits that resulted from reasonable though dif-
fering interpretations of the Guideline[s],” retroactive applica-
tion is appropriate. United States v. Van Alstyne, 584 F.3d
803, 818 (9th Cir. 2009).
The Commission’s “Reason for Amendment,” published in
the supplement to Appendix C of the Guidelines, specifically
states that the amendment “addresses a circuit conflict regard-
ing application of the undue influence enhancement.”
U.S.S.G. Supp. to app. C, amend. 732 at 322 (2009). The
Commission proceeds to note that “[t]hree circuits have
expressed different views” on the matter. Id. at 323. Indeed,
there is a decisive split between the three circuits to have
addressed whether the enhancement applies in these circum-
stances (under § 2G1.3(b)(2)(B) and its virtually identical pre-
decessor, U.S.S.G. § 2A3.2(b)(2)(B)2). Id.
[3] As noted above, the Sixth Circuit has held that
2
Section 2A3.2(b)(2)(B) applies to offenses under 18 U.S.C. § 2243(b)
that involve statutory rape, whereas § 2G1.3(b)(2)(B) applies to offenses
involving minors, where—among other matters—a participant induces or
entices a minor to engage in prohibited sexual conduct as defined in
§ 2A3.1 cmt. n.1. As with § 2G1.3, the application notes to
§ 2A3.2(b)(2)(B) instructed courts to “closely consider the facts of the
case to determine whether a participant’s influence over the minor com-
promised the voluntariness of the minor’s behavior.” See U.S.S.G.
§ 2A3.2 cmt. n.4 (2003). There is a rebuttable presumption that a minor
was unduly influenced when the participant is at least 10 years older than
the minor. See id.
4756 UNITED STATES v. CHRISTENSEN
§ 2A3.2(b)(2)(B), “is not applicable where the victim is an
undercover agent representing himself to be a child under the
age of sixteen.” Chriswell, 401 F.3d at 469. Also with respect
to § 2A3.2(b)(2)(B), the Seventh Circuit has held that
“[w]here the state of mind of the victim is critical, and per-
haps dispositive, [the enhancement] simply cannot apply in
the case where the victim has no state of mind whatsoever
because she does not exist.” Mitchell, 353 F.3d at 562. On the
other hand, the Eleventh Circuit—the only circuit to have
dealt squarely with § 2G1.3(b)(2)(B)—concluded that “[t]he
fact that the minors actually were fictitious does not change
the applicability of the two-level enhancement pursuant to
§ 2G1.3(b)(2)(B).” Vance, 494 F.3d at 996. Noting these
divergent views, the Commission states that Amendment 732:
resolves [this] issue by providing in the Commentary
to §§ 2A3.2 and 2G1.3 that the undue influence
enhancement does not apply in a case in which the
only “minor” involved in the offense is an under-
cover law enforcement officer. The Commission
determined that the undue influence enhancement
should not apply in a case involving only an under-
cover law enforcement officer because, unlike other
enhancements in the sex offense guidelines, the
undue influence enhancement is properly focused on
the effect of the defendant’s actions on the minor’s
behavior.
U.S.S.G. Supp. to app. C, amend. 732 at 323 (2009). The
Commission’s explanation thus makes clear its intent to
resolve an ongoing circuit dispute. Thus, under Morgan and
Van Alstyne, we hold that in light of the circumstances of
Christensen’s case, U.S.S.G. § 2G1.3(b)(2)(B) cannot be
applied to enhance his sentence. We therefore reverse Chris-
tensen’s sentence and remand for resentencing.3
3
In light of this disposition, we need not address Christensen’s addi-
tional argument that the district court failed to comply with Application
Note 3 to U.S.S.G. § 2J1.6 in determining the Guidelines range for the
multiple counts of conviction.
UNITED STATES v. CHRISTENSEN 4757
IV. CONCLUSION
In light of the amended language of the Commentary to
§ 2G1.3(b)(2)(B), applicable retroactively as a clarification of
the law, the district court erred in applying the “undue influ-
ence” enhancement to Christensen’s sentence.
REVERSED and REMANDED.