[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 29, 2003
No. 02-14239 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01004-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FERRYS HARVEY MIRANDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2003)
Before HULL, MARCUS and STAHL*, Circuit Judges.
PER CURIAM:
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
After a trial, the government appeals Defendant Ferrys Harvey Miranda’s
15-month sentence imposed for his conviction for using a computer to attempt to
persuade a minor to engage in criminal sexual conduct, in violation of 18 U.S.C.
§ 2422(b). On appeal, the government argues that the district court erred: (1) in
applying U.S.S.G. § 2A3.4 (Abusive Sexual Contact or Attempt to Commit
Abusive Sexual Contact), instead of the harsher penalties provided in U.S.S.G.
§ 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years
(Statutory Rape) or Attempt to Commit Such Acts); and (2) in failing to assess a
two-level specific offense enhancement for Miranda’s misrepresentation of his age
under U.S.S.G. § 2A3.2(b)(2)(A)(i) or § 2A3.4(b)(4)(A).1 After review and oral
argument, we vacate Miranda’s sentence and remand to the district court for
resentencing.
I. BACKGROUND
Because the appropriateness of Defendant Miranda’s sentence depends on
whether the district court applied the proper sentencing guideline, we first review
the guidelines applicable to convictions under 18 U.S.C. § 2422(b). We then
1
The 2000 edition of the United States Sentencing Guidelines was applied because
Miranda committed the offense on October 30, 2001, two days before the effective date of the
2001 guidelines. See United States v. Diaz, 26 F.3d 1533, 1544 (11th Cir. 1994). All citations
will be to the 2000 edition of the Sentencing Guidelines unless otherwise noted.
2
review the evidence presented at trial against Miranda and why we conclude that
the district court should have sentenced Miranda for attempted sexual abuse under
§ 2A3.2, not attempted sexual contact under § 2A3.4.
A. Guidelines Applicable to § 2422(b) Convictions
Miranda was convicted under 18 U.S.C. § 2422(b). A person violates
18 U.S.C. § 2422(b) when, using the mail or other means of interstate commerce,
he “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.”
18 U.S.C. § 2422(b).
Appendix A of the United States Sentencing Commission Guidelines
Manual instructs that the appropriate starting point for a conviction under 18
U.S.C. § 2422(b) is U.S.S.G. § 2G1.1 (Promoting Prostitution or Prohibited
Sexual Conduct). The commentary to § 2G1.1 provides, however, that cases that
do not involve prostitution, like this case, are to be sentenced under one of four
other guidelines: § 2G2.1 (Sexually Exploiting a Minor by Production of Sexually
Explicit Visual or Printed Material); § 2A3.1 (Criminal Sexual Abuse; Attempt to
Commit Criminal Sexual Abuse); § 2A3.2 (Criminal Sexual Abuse of a Minor
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such
3
Acts); or § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual
Contact). U.S.S.G. § 2G1.1, cmt. background.
Where a sentencing court is required to choose among multiple guideline
sections, the court must “use the guideline most appropriate for the offense
conduct charged in the count of which the defendant was convicted.” U.S.S.G.
app. A, introductory cmt. Both parties agree that neither § 2G2.1 (Sexually
Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material)
nor § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse)
is applicable in this case.2 The issue thus becomes whether to apply § 2A3.2
(Attempted Sexual Abuse) or § 2A3.4 (Attempted Sexual Contact) of the
Sentencing Guidelines.3
2
Section 2G2.1 is inapplicable because there is no evidence of explicit visual or printed
material in this case. Section 2A3.1 is inapplicable because it requires the victim to have been
threatened or placed in fear of death or other serious bodily injury.
3
This Court has adopted a two-prong test for establishing the crime of attempt; that is, the
government must establish that the defendant: (1) has the required intent or mens rea; and (2)
took actions that constituted a “substantial step toward the commission of the crime.” United
States v. Root, 296 F.3d 1222, 1227-28 (11th Cir. 2002), cert. denied, 123 S. Ct. 1006 (2003).
Specifically, this Court stated that
[t]his circuit has long held that to convict a defendant of the crime of attempt, the
government need only prove (1) the defendant was acting with the kind of
culpability otherwise required for the commission of the crime for which he is
charged with attempting; and (2) the defendant was engaged in conduct that
constitutes a substantial step toward the commission of the crime.
Id. (internal quotation marks and citations omitted). The district court recognized that Miranda’s
intent was at issue, stating, “It really comes down to an issue of intent . . . . So the issue really
for the Court is what is it Mr. Miranda really intended to do once he got to the . . . location . . .
4
B. Attempted Sexual Abuse Versus Attempted Sexual Contact
Section 2A3.2 applies to offenses “involving the criminal sexual abuse of an
individual who had not attained the age of 16 years.” U.S.S.G. § 2A3.2, cmt.
background (emphasis added). Section 2A3.2 refers to 18 U.S.C. § 2243(a) as the
statutory provision covered.4 U.S.S.G. § 2A3.2, cmt. Furthermore, § 2A3.2(c)(1)
directs courts to 18 U.S.C. § 2241 or § 2242 in order to determine the definition of
criminal sexual abuse or attempt to commit criminal sexual abuse. U.S.S.G. §
2A3.1(c)(1). According to 18 U.S.C. §§ 2241, 2242, and 2243, the term “sexual
abuse” includes offenses that involve a “sexual act.” See 18 U.S.C. § 2241, et seq.
In turn, the term “sexual act” is defined in 18 U.S.C. § 2246 as:
(A) contact between the penis and the vulva or the penis and the anus,
and for purposes of this subparagraph contact involving the penis
occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the
vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person; or
(D) the intentional touching, not through the clothing, of the genitalia
of another person who has not attained the age of 16 years with an
where he encountered the undercover agent.”
4
According to Instructions for the Sentencing Guidelines, “[t]he list of ‘Statutory
Provisions’ in the Commentary to each offense guideline does not necessarily include every
statute covered by that guideline. In addition, some statutes may be covered by more than one
guideline.” U.S.S.G. § 1B1.1, cmt. n.3.
5
intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.
18 U.S.C. § 2246(2). Therefore, if Miranda’s conduct consisted of an attempted
sexual act, as defined above, with either of his intended victims, § 2A3.2 would
apply.
Section 2A3.4 applies to offenses constituting “sexual contact not
amounting to criminal sexual abuse.” U.S.S.G. § 2A3.4, cmt. background
(emphasis added). Like § 2A3.2, section 2A3.4 refers to statutory provisions.
Specifically, § 2A3.4 defines a defendant’s base offense level by reference to 18
U.S.C. § 2241(a) or (b) or 18 U.S.C. § 2242. The terms found in §§ 2241 and
2242 are defined in 18 U.S.C. § 2246. Therefore, we look to § 2246 to determine
what constitutes sexual contact. The term “sexual contact” is defined in § 2246 as
the intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
18 U.S.C. § 2246(3).
As stated above, § 2A3.4 narrows “sexual contact” to “sexual contact not
amounting to criminal sexual abuse,” and thereby excludes any sexual conduct
that constitutes a “sexual act.” U.S.S.G. § 2A3.4, cmt. background. Therefore, if
Miranda’s conduct did not constitute an attempted sexual act with either of his
6
intended victims, but merely consisted of an attempted sexual contact, § 2A3.4
would apply.
Thus, the decision to sentence Miranda under §2A3.2 or § 2A3.4 rests on
this determination: if Miranda’s conduct consisted of an attempted “sexual act”
with his intended victims, then the district court should have applied § 2A3.2. If,
however, Miranda’s conduct consisted of attempted “sexual conduct” with his
intended victims, the district court correctly applied § 2A3.4. As the following
evidence readily demonstrates, Miranda’s conduct clearly consisted of an
attempted sexual act with his intended victims, and, therefore, the district court
should have applied § 2A3.2.
B. Miranda’s Chat Sessions
In October 2001, Detective Brad Rosh of the Miami-Dade School Board
Police Department and Special Agent Kevin Levy of the United States Secret
Service were assigned to the Secret Service Electronic Crimes of Violence Task
Force. Detective Rosh and Special Agent Levy entered Internet chat rooms posing
as minors and waited for contact from adult sexual predators.
On October 29, 2001, Detective Rosh, under the username “claudia13x,”
entered a Yahoo! Internet chat room. Claudia13x was a 12-year-old female from
7
Miami. Special Agent Levy entered the same chat room under the username
“latinaprincezz13” – a 14-year-old female from Miami.
On October 29, 2001, while latinaprincezz13 and claudia13x were signed
onto the chat room, Defendant Miranda signed on under the username
“maleusafla,” a 35-year-old male from Miami. Miranda quickly initiated a
conversation with latinaprincezz13.
At first, Defendant Miranda stated that he would not have sex with
latinaprincezz13 because she was too young. However, as the online conversation
progressed, Miranda directly asked latinaprincezz13, “Do you want to have sex?,”
to which she responded “ok.” The following conversation also occurred between
Miranda and latinaprincezz13, wherein the two discussed having sex and Miranda
asked if latinaprincezz13 was “prepare[d] to do those kinda things”:
Miranda: Tell me what you have in mind about goig out with a
guy. What do you want to do?5
latinaprincezz13: not sure
latinaprincezz13: never really went out with a guy b4
Miranda: Just tell me.
latinaprincezz13: what would we normally do?
Miranda: What you do? Where would you go?
latinaprincezz13: anywhere i guess
latinaprincezz13: just so bored of being alone at home
Miranda: No be more specific.
5
The e-mails between Miranda and claudia13x and latinaprincezz13 contain numerous
spelling mistakes. In this opinion, we recite the e-mails as written.
8
latinaprincezz13: give me choices and i will tell you
Miranda: Movie, mall, ???? I leave the question marks for you.
latinaprincezz13: i have been to the movies and the mall but what are the
qwestion marks for tell me?
Miranda: That is for you to think. What do you think a boy and
girl alone would do?
latinaprincezz13: i don’t know like what should they do
Miranda: Yo do not have any idea. What do boy and girls alone
do in a movie.
latinaprincezz13: u mean the actors or the people who go to the movies
Miranda: The actors.
latinaprincezz13: i saw pictures once but that was a while ago
Miranda: OK. you do not what to say it.
Miranda: Usualy in movies they have s.......x.
latinaprincezz13: sex
latinaprincezz13: i know
latinaprincezz13: never done that b4
Miranda: Are you prepare to do those kind of things.
latinaprincezz13: don’t know if i would be good never done them before
...
latinaprincezz13: would it hurt a lot
Miranda: It depends if you are a virgin.
latinaprincezz13: i never had sex b4 so i guess im a virgin
latinaprincezz13: i know it may hurt a little but will it hurt a lot
Miranda: Do you have your menstruation period every month?
latinaprincezz13: yeah
...
Miranda: Do you know how to protect yourself from pregnancy.
latinaprincezz13: not really - how?
Miranda: Well you know there are pills.
latinaprincezz13: yeah i have heard
Furthermore, during his conversation with latinaprincezz13, Defendant
Miranda attempted to set up a meeting with her. The two of them, however, could
not agree on a mutually convenient time. Latinaprincezz13 promised to let
9
Miranda know where he could meet her and said that she would send him an
email. Latinaprincezz13 never sent an email, and Miranda had no further contact
with her.
Midway through the conversation with latinaprincezz13, Defendant
Miranda simultaneously became involved in a conversation with claudia13x.
Miranda asked for claudia13x’s “ASL,” which is Internet jargon for “Age, Sex,
and Location.” Claudia13x responded that she was a 12 year-old female from
Miami. Miranda, in turn, stated that he was a 35 year-old male from Miami. After
several minutes of conversation, Miranda asked claudia13x, “What do you think
about sex?” Claudia13x responded that she had never had sex before but was
“curious” about it and thought that it would be “cool.”
After a few more minutes of conversation, Miranda stated, “I would like to
have sex.” Shortly thereafter, the following exchange about them having sex
together occurred:
Miranda: I want to ask you. Have you ever thought about protection
against pregnancy?
claudia13x: I guess
Miranda: Tell me what would you use?
claudia13x: I thought the guy uses tyhat
Miranda: Well both. Guys use condom, girls can take the pill.
claudia13x: oh okay
Miranda: Do you have your menstrual cycle on time.
claudia13x: yes
10
Miranda: every first of the month?
claudia13x: like the 5th
Miranda: and it is on time all the time.
claudia13x: for the most part
...
Miranda: I would not like to see you pregnant at a very young age.
claudia13x: thank you
Miranda: A beatiful girl like you has a lot of future in front of you.
claudia13x: thank you
Miranda: I think I like you and hopefully we can be good friends and
more (Sex of course). With a beatiful blonde.
claudia13x: okay
Miranda: Do you want to do that ?
claudia13x: i think that will be okay
Miranda: OK, I just want to know I will be very gentle with you.
claudia13x: promise?
Miranda: Yes, tell me how do you think it will be for you
claudia13x: I hope it does not hurt too much
Miranda: If I am gentle with you it will not hurt. I hope you will like it
so you can enjoy it.
claudia13x: okay
Miranda: I am getting very hot at just imagin been with you.
...
Miranda: Tell me do you have breasts .
claudia13x: a little
...
Miranda: how about pubic hair.
claudia13x: yes
Miranda: where?
...
claudia13x: in my private
...
Miranda: How do you want me to make love to you.
claudia13x: just be nice to me please
Miranda: Just tell me.
claudia13x: gentle
Miranda: how do you picture to have sex.
11
claudia13x: gentle
Miranda: Do you know any position you would like to experiment.
claudia13x: i don’t know
Miranda: No idea, just give me some ideas.
claudia13x: but just be gentle with me
In addition to the above conversation, Defendant Miranda asked claudia13x
to meet him. Miranda suggested that they meet “at a public place like
Mc[D]onalds, etc.” 6 Claudia13x responded that there were “too many people.”
They agreed to meet the following day at 6:30 p.m. in front of the Kenwood
Elementary School. Miranda told claudia13x that he would be driving a
champagne-colored Nissan 240SX. Miranda repeatedly stressed that their meeting
had to be kept “secret” and that “this is between us, no one should know about
this.”
The next day, Defendant Miranda again chatted with claudia13x online. He
asked claudia13x if she would be “available at 6:30,” as they previously had
agreed. She responded that she would be there. They agreed to meet at the
Kenwood Elementary School playground. Claudia13x told Miranda that she
6
The defense argues that the fact that Defendant Miranda suggested a public place
indicated that he did not intend to have sex with claudia13x. However, once they agreed to meet
at Kenwood Elementary School, Miranda asked claudia13x: (1) “How do you want me to make
love to you;” (2) “how do you picture to have sex;” and (3) “Do you know any position you
would like to experiment.” In any event, the fact that Defendant Miranda may have suggested a
public place to first meet claudia13x has no relevance with regard to what he intended to do after
picking claudia13x up from the Kenwood Elementary School.
12
would be wearing jeans, a white shirt, and a black hat. Miranda again told
claudia13x that she would “have to keep [the meeting] as a secret.”
Their online conversation also touched on what claudia13x referred to as
the “sex thing”:
Miranda: When did you feel the need to explore sex
claudia13x: not really sure
...
Miranda: Are you nervous about our date
Miranda: Are you there ?
claudia13x: nervous a little afraid it might hurt
Miranda: Why?
Miranda: It wont.
claudia13x: don’t want to get pregnunt
Miranda: No you won’t.
Miranda: We will make sure you will not.
claudia13x: how can u make sure
Miranda: We can use condom.
claudia13x: ok
Miranda: I am leavin now see you at 6:30 p.m.
Miranda and claudia13x ended their conversation shortly before 6:00 p.m.
C. Miranda’s Arrest
That same day, at approximately 6:30 p.m., Special Agent Levy,
accompanied by other task force agents, arrived at the Kenwood Elementary
School. Special Agent Beth Mitchell, posing as claudia13x, sat on a wooden
railroad tie near the sidewalk adjacent to the school playground. After a few
13
minutes, the agents observed a champagne-colored Nissan 240SX driving slowly
around the school.
The Nissan drove past Special Agent Mitchell, slowed to a stop, backed up,
and then stopped approximately 5 feet from her. Miranda rolled down the window
and asked Special Agent Mitchell the name of the school. At that point, Special
Agent Mitchell stood up, and other agents surrounded Miranda and arrested him.
When Miranda was searched, no condoms were found in his possession or in the
car.7
After being advised of his constitutional rights, Defendant Miranda spoke to
the arresting agents. He denied that he had come to the school to meet anyone; he
stated that he had just left a bookstore in the vicinity of the school. When asked
his age, Miranda told the agents that he was 35. After an agent reviewed
Miranda’s driver’s license, the agent again asked Miranda how old he was, to
which Miranda replied, “I’m 35–I mean 40.”
7
The defense asserts that the fact that no condom was found in Defendant Miranda’s car
constitutes some evidence of his intent not to have sex with claudia13x. Such an argument is
meritless as Miranda never told claudia13x that he would bring a condom. Rather, Defendant
Miranda stated that they could use a condom to prevent claudia13x from getting pregnant. We
note that to the extent Miranda planned on using a condom, nothing would have prevented him
from purchasing one after picking up claudia13x.
14
After Miranda’s arrest, the agents went to his residence and seized his
computer hard drive. An examination of the hard drive confirmed that Miranda
previously had contacted latinaprincezz13 and claudia13x.
D. Miranda’s Sentencing
In the Presentence Investigation Report (“PSI”), the probation officer
determined that U.S.S.G. § 2A3.2 (Attempted Sexual Abuse) was applicable
because Miranda’s conduct consisted of an attempted sexual act with his intended
victims. The probation officer assessed Miranda a base level of 18, pursuant to
§ 2A3.2(a)(1) because the ages of the victims of the offense were less than 16
years old and because Miranda attempted to have sex with them. The probation
officer also assessed Miranda a two-level specific offense enhancement, pursuant
to U.S.S.G. § 2A3.2(b)(2)(A)(i), because he had misrepresented his age as 35
years old in an attempt to induce the victims to have sex with him.
Miranda objected to the PSI, contending that U.S.S.G. § 2A3.4 (Attempted
Sexual Contact) instead of § 2A3.2 (Attempted Sexual Abuse) applied because he
did not intend to have sex with either of his intended victims. Miranda further
argued that his statement to claudia13x that his age was 35, instead of his actual
age of 40, was immaterial because the 5-year difference did not entice the victim
into acting.
15
At the sentencing hearing, the district court agreed with Miranda’s
objections and applied § 2A3.4 (Attempted Sexual Contact). The district court
also rejected the government’s argument that Miranda’s misrepresentation of his
age warranted a two-level enhancement. The district court sentenced Miranda to
15 months’ imprisonment. The government now appeals Miranda’s sentence.
II. DISCUSSION
A. Standard of Review
This Court has well-established precedent regarding the standard of review
in sentencing appeals. The district court’s interpretation of the Guidelines is a
question of law that this Court reviews de novo. United States v. Gonzalez, 2 F.3d
369, 371 (11th Cir. 1993) (citation omitted). “We use the same de novo standard
to scrutinize a district court’s choice of the appropriate sentencing guideline to
apply to a given set of facts.” United States v. Goldberg, 60 F.3d 1536, 1539 (11th
Cir. 1995) (citing United States v. Shriver, 967 F.2d 572, 574 (11th Cir. 1992)).
However, a district court's finding regarding a defendant’s intent is reviewed for
clear error. United States v. Vallejo, 297 F.3d 1154, 1162 (11th Cir. 2002)
(reviewing for clear error a district court’s findings regarding prosecutor’s intent).8
8
In United States v. Williams, 340 F.3d 1231, 1234-37 (11th Cir. 2003), this Court
conducted an interesting survey of case law from the Eleventh Circuit and United States Supreme
Court addressing the appropriate “due deference” under 18 U.S.C. § 3742(e) that courts are
16
B. U.S.S.G. Sections 2A3.2 and 2A3.4
On appeal, the government argues that the district court erroneously
determined Miranda’s base offense level under U.S.S.G. § 2A3.4, the guideline for
sexual contact. According to the government, the district court should have
sentenced Miranda pursuant to the harsher penalties contained in § 2A3.2 because
Miranda’s conduct consisted of an attempt to have sex with latinaprincezz13 and
claudia13x. The government emphasizes that there is no way to read the e-mail
dialogue at issue in this case other than as an attempt by Defendant Miranda to
have sex with individuals whom he believed to be two young girls. The
government also stresses the fact that Defendant Miranda actually showed up at
obliged to give to a sentencing judge’s “application of the guidelines to the facts.” However,
Williams involved only the question of how a court properly would group particular offenses for
sentencing. Id. at 1243-45. Therefore, the Williams decision is necessarily limited to
announcing the standard of review only for a challenge to the district court’s grouping of a
defendant’s offenses. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)
(“The holdings of a prior decision can reach only as far as the facts and circumstances presented
to the court in the case which produced that decision.”) (internal quotation marks and citations
omitted). Williams’s remaining discussion is primarily dicta and, therefore, not binding on this
Court. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379, 114 S. Ct. 1673,
1676 (1994) (“It is to the holdings of our cases, rather than their dicta that we must attend . . . .”);
Browning v. AT&T Paradyne, 120 F.3d 222, 225 n.7 (11th Cir. 1997) (“Since this statement was
not part of any holding in the case, it is dicta, and we are not bound by it.”) (citations omitted);
Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.
1992) (explaining that dicta is neither law of the case nor binding precedent); McDonald's Corp.
v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (“For these reasons,
among others, dicta in our opinions is not binding on anyone for any purpose.”).
17
the Kenwood Elementary School within an hour of concluding his conversation
with claudia13x.9 We agree.
U.S.S.G. § 2A3.2
As stated above, whether Miranda should have been sentenced under
§ 2A3.2 is dependent upon the definition of “sexual act.” The Guideline’s
definition of “sexual act” is important because § 2A3.2 applies to offenses
“involving the criminal sexual abuse of an individual who had not attained the age
of 16 years.” U.S.S.G. § 2A3.2, cmt. background (emphasis added). The term
“sexual abuse” includes offenses that involve a “sexual act.” See 18 U.S.C.
§ 2241, et seq.
Looking at the definition of a sexual act, it is impossible to conclude
anything but that Miranda’s conduct constituted an attempted sexual act with
latinaprincezz13 and claudia13x. Even the most cursory view of the record
reveals “reliable and specific evidence” of Miranda’s conduct amounting to an
attempted “sexual act” with latinaprincezz13 and claudia13x. See United States v.
Lawrence, 47 F.3d 1559, 1566-67 (11th Cir. 1995).
With latinaprincezz13, Miranda discussed menstrual cycles and pregnancy
protection. He also point-blank asked her “Do you [latinaprincezz13] want to
9
We note that Defendant Miranda did not testify at trial or at sentencing.
18
have sex?” Although the two of them could not agree on a mutually convenient
meeting time or place, the tenor of the conversation and the content of Miranda’s
questions are “reliable and specific evidence” of Miranda’s conduct consisting of
an attempted sexual act with latinaprincezz13.
Miranda’s conversations with claudia13x are even more conclusive. Their
online discussions included references to her menstrual cycle, protection against
pregnancy, and the use of condoms. Furthermore, Miranda specifically asked
claudia13x how she wanted him to “make love” to her and if she “kn[e]w any
position [she] would like to experiment.” In their conversation that concluded less
than one hour before they were to meet, Miranda indicated to claudia13x that sex
would not hurt and that he would “make sure” that she did not get pregnant.
When claudia13x pressed Miranda for how they could make sure she did not get
pregnant, he responded, “We can use condom [sic].”
Here, the district court concluded that she was not prepared to say that
“based on [her] own experience as a human being that a person who talks a lot of
sex–talks a lot about sex is necessarily going to act on it.” Such personal
experience is irrelevant to the case at hand because the evidence in this case
supports only one conclusion: Miranda’s conduct consisted of an attempted sexual
act with whom he believed were two young girls. While the district court’s
19
personal experience with the average human being may be correct, Miranda is not
an average human being. Miranda is a middle-aged man who conversed
extensively with whom he believed to be twelve- and fourteen-year-old girls and
asked them to have sex with him. The only reasonable construction of Miranda’s
words to both latinaprincezz13 and claudia13x is that he wanted to have sexual
intercourse with them, and, therefore, Miranda’s conduct consisted of an
attempted sexual act. No district court faced with this record could correctly
conclude otherwise.10
10
We point out that Defendant Miranda had two psychosexual evaluations completed after
his conviction, but the district court did not mention or rely on them and, in any event, they do
not help Miranda. Dr. Elsa M. Marban completed Defendant Miranda’s first psychosexual
evaluation, but that written psychosexual evaluation is not in the record. The only evidence of
the content of that evaluation is in the PSI, where the probation officer states that Dr. Marban
concluded that Miranda’s actions were reflective of behavior which indicated that Miranda had
“sexually arousing fantasies and urges with pre-pubescent children.” The PSI further states that
Dr. Marban made no mention that the Defendant did not want to have sex with the victim.
The PSI further notes that Dr. Rappaport conducted Miranda’s second psychosexual
evaluation, but did not submit a written report. According to the PSI, the probation officer
conducted a telephone interview with Dr. Rappaport in which Dr. Rappaport noted that “the
defendant may not have wanted to actually have sexual contact with the victim, but was sexually
aroused by the fantasy and anticipation of the encounter.” (Emphasis added). Of course, if
Miranda was merely sexually aroused by the fantasy and anticipation of the encounter, there was
no need to actually drive to the Kenwood Elementary School to meet claudia13x. In any event,
Dr. Rappaport rendered no opinion with any degree of certainty, much less to a medical certainty,
as to whether Defendant Miranda intended to have sex or merely some form of sexual contact
with claudia13x. Thus, we are left with evaluating Miranda’s own words in the chatroom, and
the only reasonable construction of those words, as explained above.
20
In United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003), this Court
addressed the application of § 2A3.2 to another child predator case.11 In Panfil, a
Special Agent with the United States Secret Service logged onto the Yahoo!
Internet Chat room under the screen name “Hialeahnina13.” Id. at 1299-300.
Brian Panfil logged in under the name “Freeoralslave,” and contacted
Hialeahnina13. Id. at 1300. After Hialeahnina13 identified herself as a 13-year-
old female, Panfil initiated a sexually explicit Internet conversation. Id.
Specifically, Panfil offered to perform oral sex, informing Hialeahnina13 that oral
sex would “relax you” and “make u feel good.” Id. After Panfil and
Hialeahnina13 agreed to meet the next evening at 10:00 p.m., Panfil encouraged
Hialeahnina13 to sleep well, telling her “you will have some powerful orgasms
tomorrow.” Id.
The next day, Panfil contacted Hialeahnina13 to confirm the meeting time
and place. Panfil, 338 F.3d at 1300. However, when Panfil arrived at the pre-
determined meeting location, he was immediately arrested and subsequently pled
guilty to violating 18 U.S.C. § 2422(b). Id.
11
Panfil addressed the 2001 version of § 2A3.2, whereas Miranda was sentenced under the
2000 version of § 2A3.2. Although the two versions of § 2A3.2 contain substantively different
components, Panfil’s discussion of the definition of “sexual act” is still relevant because the
definition of “sexual act” remains unchanged.
21
In interpreting Panfil’s conduct under the same definition of a sexual act we
are faced with here, the Panfil Court easily concluded that Panfil’s actions
constituted an attempted sexual act. In the present case, there is significantly more
evidence showing Miranda’s conduct, and we readily conclude that Miranda
should have been sentenced under § 2A3.2 (Attempted Sexual Abuse).
U.S.S.G. § 2A3.4
Having concluded that § 2A3.2 (Attempted Sexual Abuse) applies to
Miranda’s conduct, we address § 2A3.4 (Attempted Sexual Contact) in order to
determine whether § 2A3.4’s plain language could apply to Miranda’s case and,
thereby, present the district court with a conflict. See Panfil, 338 F.3d at 1303.
Section 2A3.4 applies to offenses constituting “sexual contact not amounting to
criminal sexual abuse.” U.S.S.G. § 2A3.4, cmt. background (emphasis added).
Section 2A3.4 defines sexual contact in the negative and excludes any
conduct that constitutes a “sexual act.” Panfil, 338 F.3d at 1303. Because we
have already determined that Miranda’s conduct constituted an attempted “sexual
act” and “§ 2A3.4 excludes any conduct that is a ‘sexual act,’ we do not find any
language in § 2A3.4 that would place it in conflict with § 2A3.2.” Id. (footnote
omitted). Because Miranda’s conduct consisted of an attempted “sexual act” with
latinaprincezz13 and claudia13, the district court erroneously applied U.S.S.G.
22
§ 2A3.4. Consequently, we vacate Miranda’s sentence and remand this case to the
district court so that Miranda may be resentenced under § 2A3.2.
C. Misrepresentation of Miranda’s True Identity
The government also argues that the district court erred by failing to assess
a two-level specific offense enhancement for Miranda’s misrepresentation of his
age. The government contends that the evidence demonstrated that Miranda
misrepresented that he was 35 years old instead of 40 to persuade or entice
claudia13x to have sex with him. The government argues that Miranda’s age
misrepresentation, despite being a difference of only five years, was material
because it was intended to influence claudia13x to meet him for purposes of
having sexual intercourse.
The application of U.S.S.G. § 2A3.2(b)(2)(A)(i),12 which provides for a two-
level specific offense enhancement if “the offense involved the knowing
misrepresentation of a participant’s identify to . . . persuade, induce, entice, or
coerce the victim to engage in prohibited sexual conduct” is an issue of first
impression in this circuit. Our sister circuits also have not examined these
guideline provisions. Application Note 5 of § 2A3.2 provides that a two-level
enhancement may apply when a defendant misrepresents his “name, age,
12
Section 2A3.4(b)(4)(A) contains similar language.
23
occupation, gender, or status, as long as the misrepresentation was made with the
intent to . . . persuade, induce, entice, or coerce the victim to engage in prohibited
sexual conduct.” U.S.S.G. § 2A3.2, cmt. n.5 (emphasis added).13
We first conclude that the district court did not clearly err in finding that
Miranda’s misrepresentation of his age as 35 instead of 40 was not “made in order
to persuade or induce” claudia13x into having sex. While there is evidence from
which the district court could have found that Miranda intended to persuade or
induce claudia13x by misrepresenting his age, we cannot say that the district court
clearly erred in its contrary fact finding.
For example, Miranda made the same misrepresentation of his age to the
agents at the time of his arrest. It was only after an agent saw Miranda’s driver’s
license and posed the age question a second time that Miranda gave his correct
age. While the government argues that Miranda was mistakenly remaining in his
assumed identity, we conclude that a factual issue was presented for the district
court as to whether Miranda made the statement in order to persuade or induce
13
Application Note 6 of § 2A3.4 contains similar language. See U.S.S.G. § 2A3.4, cmt.
n.6.
24
claudia13x into having sex, and we cannot say that the district court clearly erred
in its factual finding.14
The district court also concluded that Miranda’s misrepresentation of his
age to claudia13x was “not a material misrepresentation” and, therefore, a two-
level enhancement was inappropriate. The parties do not dispute that materiality
is required for the two-level enhancement to apply; rather, they dispute whether
Miranda’s age misrepresentation was, in fact, material. The government asserts
that a misrepresentation is material if it has “a natural tendency to influence, or is
capable of influencing” a decision maker. Cf. United States v. Gregg, 179 F.3d
1312, 1315 (11th Cir. 1999) (addressing materiality in the bank fraud context).
Furthermore, the misrepresentation “need not have exerted actual influence, so
long as it was intended to do so and had the capacity to do so.” Id.15
We need not determine whether the government’s definition of materiality is
appropriate in the Internet predator context or whether the district court correctly
14
The parties agree that the district court made a factual finding, based on the evidence,
that Miranda’s misrepresentation of his age was not made for the purpose of persuading or
inducing a minor to have sex. The parties also agree that we review that factual finding for clear
error. See United States v. Hasner, 340 F.3d 1261, 1276 (11th Cir. 2003) (“We review de novo
the district court’s interpretation and application of the Sentencing Guidelines and review the
factual findings underlying decisions for clear error.”) (citation omitted).
15
The district court’s determination that Miranda’s misrepresentation was not material is a
mixed question of law and fact, and is, therefore, reviewed de novo. United States v. Frank, 247
F.3d 1257, 1259 (11th Cir. 2001).
25
determined that Miranda’s misrepresentation was not material because this Court
already has concluded that the district court in this case did not clearly err when
determining that Miranda did not misrepresent his age with the intent to induce or
entice claudia13x into having sex with him. Accordingly, we conclude that the
district court correctly refused to assess Miranda a two-level specific offense
enhancement for misrepresentation of his age.
IV. CONCLUSION
Based on all the above, we vacate Miranda’s sentence and remand this case
to the district court for resentencing consistent with this opinion.
VACATED and REMANDED.
26