[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16282 JULY 28, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-14028-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR JOE SEARCY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 28, 2005)
Before DUBINA and WILSON, Circuit Judges, and LAWSON*, District Judge.
WILSON, Circuit Judge:
Edgar Joe Searcy appeals his conviction and sentence for using
_________________________
*Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
a facility and means of interstate commerce, the internet service provider America
Online (“AOL”), to knowingly persuade, induce, entice or coerce a minor to
engage in unlawful sexual activity, and attempting to do so, in violation of 18
U.S.C. § 2422(b). At issue on appeal is whether the district court erred in
concluding that a violation of 18 U.S.C. § 2422(b) is a crime of violence for the
purpose of classifying Searcy as a career offender under U.S.S.G. § 4B1.1.1
I. BACKGROUND
Posing undercover as the father of a thirteen-year-old girl in an AOL
chatroom, a law enforcement officer received an instant message from Searcy
using the screen name “OBBESSEDDAD11.” During this exchange, Searcy
informed the detective that he was a member of a father-daughter swap club.
Searcy and the detective communicated next via telephone and Searcy reiterated
that he was a member of a father-daughter swap club and asked to set up a face-to-
face meeting with the detective. At the face-to-face meeting, Searcy asked the
detective if he and his daughter would accompany Searcy on a trip. Searcy said
that he wanted to have sex with the detective’s daughter and would arrange for the
1
Searcy also raised the following issues on appeal: (1) his conduct as charged in the
indictment did not violate 18 U.S.C. § 2422(b); (2) the district court erred in upwardly departing
under U.S.S.G. § 4A1.3; and (3) his sentence is unconstitutional in light of Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), now United States v. Booker, 543 U.S. __,
125 S. Ct. 738 (2005). We find these claims to be without merit and not warranting further
discussion.
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detective to have sex with his children. Searcy was then arrested.
After the government notified Searcy of its intent to introduce evidence of
two of Searcy’s prior state convictions, Searcy agreed to plead guilty. At the first
change-of-plea hearing, Searcy contested the government’s factual proffer, and the
district court scheduled Searcy’s case for trial. At a subsequent change-of-plea
hearing, Searcy did not dispute the government’s factual proffer, and the district
court accepted his guilty plea made pursuant to a plea agreement. At his
sentencing hearing, the court heard testimony that when Searcy was arrested the
investigators found pictures on his computer, and in his email account, of minor
females in sexual positions. Also found were two floppy discs with over thirty
images of child pornography.
In the pre-sentence investigation report (“PSR”), the probation officer
assigned Searcy a base offense level of 21 under U.S.S.G. § 2G1.1(c)(3)2 cross-
referenced to U.S.S.G. § 2A3.2(a)(2) plus a two-level increase pursuant to
U.S.S.G. § 2A3.2(b)(3) for use of a computer for an adjusted base offense level of
23. The probation officer then recommended that Searcy be classified as a career
offender under U.S.S.G. § 4B1.1(a) because he had two prior convictions for
crimes of violence – his 1988 Florida conviction for sexual activity with a child
2
All Guidelines citations are to the 2002 edition of the Sentencing Guidelines Manual.
3
and lewd, lascivious or indecent assault upon a child, and his 1997 Kansas
conviction for sexual exploitation of a child. This career offender enhancement
increased Searcy’s adjusted base offense level to a 29, but the probation officer
recommended a three-level downward adjustment for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1, resulting in a total adjusted offense level of 26.
Because Searcy committed the instant offense within two years of his release
from custody for a 1997 Kansas conviction, his criminal history category was IV,
but his career offender status bumped that category to VI. With an adjusted base
offense level of 26 and a criminal history category of VI, Searcy’s guideline range
was 120 to 150 months of imprisonment. The district court then upwardly
departed pursuant to U.S.S.G. § 4A1.3 due to the similarity of the prior convictions
to the instant offense and Searcy’s recidivist tendencies, and sentenced him to the
statutory maximum of 180 months.
The issue decided today, whether a violation of § 2422(b) should be
classified as a crime of violence for the purpose of career offender classification, is
an issue of first impression in this Circuit.
II. STANDARD OF REVIEW
The interpretation of a statute is a question of law subject to de novo review.
United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004), cert. denied, 125
4
S. Ct. 439 (2004).
III. DISCUSSION
A defendant qualifies as a “career offender” under the Guidelines if “(1) the
defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1. Searcy argues that the court
improperly determined that he was a career offender under U.S.S.G. § 4B1.1
because his instant offense is not a crime of violence.
The Guidelines define a “crime of violence” as: “any offense under federal
or state law, punishable by imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (2) . . . otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2 (emphasis
added). As the first application note to U.S.S.G. § 4B1.2 explains, “‘[c]rime of
violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible
sex offenses, robbery, arson, extortion, extortionate extension of credit, and
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burglary of a dwelling.” U.S.S.G. § 4B1.2, cmt. n.1.3 That application note further
explains that: “[o]ther offenses are included as ‘crimes of violence’ if (A) that
offense has as an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth (i.e. expressly
charged) in the count of which the defendant was convicted . . ., by its nature,
presented a serious potential risk of physical injury to another.” U.S.S.G. §
4B1.2, cmt. n.1 (emphasis added). The second application note instructs that when
deciding whether an offense is a crime of violence, “the offense of conviction (i.e.,
the conduct of which the defendant was convicted) is the focus of the inquiry.”
U.S.S.G. § 4B1.2, cmt. n.2.
At the time of the offense, § 2422(b) provided:
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, imprisoned not
more than 15 years, or both.
18 U.S.C. § 2422(b) (1998). Searcy claims that because § 2422(b) does not
include an element of force or violence, his non-physical offense was not a crime
of violence. Searcy further posits that the least culpable conduct necessary to
3
We treat the commentary in the Sentencing Guidelines Manual as authoritative. See
United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995).
6
constitute all of the essential elements of a § 2422(b) violation does not require any
behavior that would, by its nature, pose a serious risk of physical injury to another
individual. Rather, he asserts that the underlying criminal conduct is the
persuasion, inducement or enticement and not the physical sexual act itself. The
government responds that the court correctly applied the career offender guideline
and properly concluded that § 2422(b), by its nature, constitutes a crime of
violence based on the inherent potential risk of physical injury to the minor.
As stated above, under U.S.S.G. § 4B1.2, there are two approaches for
classifying an offense as a crime of violence. The first approach is to determine
whether the use, attempted use or threatened use of physical force against another
is an element of § 2422(b). See U.S.S.G. § 4B1.2(a)(1). Because the act of
persuasion, inducement, coercion or enticement need not involve physical force, §
2422(b) does not have, as an element, the use, attempted use, or threatened use of
physical force against another. Alternatively, under the second approach, we must
determine whether § 2422(b) involves conduct that, by its nature, presents a
serious potential risk of physical injury to another. See U.S.S.G. § 4B1.2(a)(2).
By applying this second approach, the district court concluded that § 2422(b)
qualifies as a crime of violence for the purpose of classifying Searcy as a career
offender.
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In concluding that § 2422(b) is a crime of violence, the court relied upon
Sixth and Tenth Circuit decisions addressing similar statutes. In an unpublished
opinion, the Sixth Circuit determined that a violation of § 2422(a), which
criminalizes the use of a computer to entice a minor to travel interstate to engage in
unlawful sex, qualified as a crime of violence for career offender purposes. See
United States v. Smith, 2001 WL 1176422, *5 (6th Cir. Sept. 25, 2001), cert.
denied, 535 U.S. 1070 (2002). In that case, the Sixth Circuit broadly stated that
“any felony involving the sexual exploitation of a juvenile inherently poses a
serious potential risk of physical injury to the victim and hence constitutes a
categorical ‘crime of violence.’” Id. In the instant case, the district court cited the
similarity in the two sub-sections and relied on Smith’s broad categorical approach
that sexual offenses against minors inherently pose a risk of physical injury to the
minor victims.
The Sixth Circuit has also held that § 2251(a), another statute sufficiently
similar to § 2422(b), is a crime of violence. See United States v. Champion, 248
F.3d 502, 505 (6th Cir. 2001). Under § 2251(a), it is a crime to entice a minor to
engage in any sexually explicit conduct for the purposes of producing a visual
depiction. See 18 U.S.C. § 2251(a). Under § 2422(b), it is a crime to use a facility
of interstate commerce to entice a minor to engage in any sexual activity for which
8
a person could be charged with a crime. See 18 U.S.C. § 2422(b). Both statutes
aim to criminalize the enticement of a minor to engage in sexual activity. Thus, the
Sixth Circuit’s reasoning with respect to its interpretation of § 2251(a) is also
relevant to our interpretation of § 2422(b).
The Tenth Circuit has held that it was not plain error for the district court to
conclude that § 2422(b) is a crime of violence for the purpose of victim restitution
under 18 U.S.C. § 16. See United States v. Johnson, 183 F.3d 1175, 1179 (10th
Cir. 1999). Notably, we have held that a crime of violence determination for the
purposes of 18 U.S.C. § 16 is indistinguishable from a determination made
pursuant to U.S.S.G. § 4B1.1. See United States v. Rutherford, 175 F.3d 899, 905
(11th Cir. 1999). Moreover, earlier this year, the Tenth Circuit also concluded that
§ 2422(b) is a crime of violence for the purpose of a violation of 18 U.S.C. §
924(c), which criminalizes the use of a firearm during the commission of any crime
of violence or drug trafficking crime. See United States v. Munro, 394 F.3d 865,
871 (10th Cir. 2005). Like the Sixth Circuit in Smith, the Tenth Circuit in Munro
broadly stated: “In cases involving sex crimes against minors, we have found that
there is always a substantial risk that physical force will be used to ensure a child’s
compliance with an adult’s sexual demands.” Munro, 394 F.3d at 870 (internal
quotation marks and citation omitted). The Tenth Circuit further provided that
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“physical injury need not be [certain] for a crime to pose a serious risk of physical
injury,” and concluded that “the risk involved in attempted sexual abuse of a minor
is significant enough to render [a violation of § 2422(b)] a crime of violence.” Id.
at 870-71 (internal quotation marks and citation omitted). While we are not bound
by the decisions of our sister circuits who have previously considered similar
issues, we do find the reasoning of the Sixth and Tenth Circuits to be persuasive.
Moreover, our consideration of the specific language that the United States
Sentencing Commission chose to define a “crime of violence” in U.S.S.G. § 4B1.2,
which was approved by Congress, convinces us that Congress intended that §
2422(b) constitute a “crime of violence” for career offender purposes. Plainly, the
use of an Internet facility to entice a minor to engage in sexual activity presents the
possibility of an encounter that could result in “a serious risk of physical injury to
[the minor].” U.S.S.G. § 4B1.2.
Although it is unnecessary to look at the legislative history to reach this
conclusion, we note that it also supports the categorization of § 2422(b) as a crime
of violence for career offender purposes. Originally, § 2422(b) was added to 18
U.S.C. § 2422 as part of the Telecommunications Act of 1996. See Pub. L. No.
104-104, § 508, 110 Stat. 56 (1996). Specifically, this particular sub-section was
included in Title V of the Telecommunications Act, which is the section titled
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“Obscenity and Violence,” after the Senate Judiciary Committee held a hearing
regarding child endangerment via the internet. See H.R. C ONF . R EP . N o . 104-458,
at 193 (1996).
Less than two years later, the “Child Protection and Sexual Predator
Punishment Act of 1998,” which was later renamed the “Protection of Children
from Sexual Predators Act of 1998,” was introduced to amend Title 18 of the
United States Code “with respect to violent sex crimes against children [and] for
other purposes.” H.R. R EP . N O . 105-557, at 1 (1998), reprinted in 1998
U.S.C.C.A.N. 678. Among the amendments to Title 18 was the amendment of
§ 2422(b) to increase the maximum prison sentence from ten to fifteen years. Such
amendments were necessary in light of the increasing number of cases in which
children enticed via the internet had been kidnapped, photographed for child
pornography, raped, and beaten. H.R. R EP . N O . 105-557, at 12, reprinted in 1998
U.S.C.C.A.N. 678, 680. Thus, “[t]he goal of [the ‘Protection of Children from
Sexual Predators Act of 1998’ was] to provide stronger protections for children
from those who would prey upon them.” 144 C ONG . R EC . S12,257, S12,263 (daily
ed. Oct. 9, 1998) (statement of Sen. Leahy).4
4
Two weeks after Searcy committed the instant offense, Congress again amended §
2422(b) to include a minimum mandatory prison sentence of five years and to increase the
maximum prison sentence from fifteen years to thirty years. See Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21,
11
IV. CONCLUSION
After careful consideration of the wording of § 2422(b) and U.S.S.G. §§
4B1.1 and 4B1.2, and having considered the jurisprudence of our sister circuits as
well as the legislative history of § 2422(b), we agree with the district court’s
conclusion that § 2422(b) constitutes a crime of violence for career offender
classification purposes. Although it is not one of the listed offenses, persuasion,
inducement, enticement or coercion of a minor to engage in unlawful sexual
activity carries an inherent risk of physical injury to the minor. Accordingly, we
affirm the district court’s classification of Searcy as a career offender pursuant to
U.S.S.G. § 4B1.1.
AFFIRMED.
§§ 103(a)(2)(B), (b)(2)(A)(i) & (b)(2)(A)(ii), 117 Stat. 650, 652-53 (2003) (amending 18 U.S.C.
§ 2422(b)).
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