[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13035 AUGUST 3, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00157-CR-2-JHH-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID L. VANCE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 3, 2007)
Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.
ALARCÓN, Circuit Judge:
David L. Vance appeals from the judgment of conviction and the District
Court’s sentencing decision. He contends that the District Court committed plain
*
Honorable Arthur L. Alarcón. United States Circuit Judge for the Ninth Circuit, sitting by
designation.
error in sustaining the prosecutor’s objection to the admission of an extra-judicial
statement. He also asserts that the District Court erred as a matter of law in
concluding that he unduly influenced a minor to engage in prohibited sexual
conduct, and in enhancing his base offense level based upon its finding that his
offense involved the use of a computer to solicit a minor to engage in prohibited
sexual conduct. We affirm because we conclude that the District Court did not
abuse its discretion in its evidentiary ruling, nor did it clearly err in its findings in
support of its sentencing decision.
I
Viewing the evidence in the light most favorable to the Government as the
prevailing party at trial, the record shows that, as part of an ongoing undercover
sting investigation, Captain John Crane of the Birmingham, Alabama Police
Department posted a message on a Yahoo! web site serving a child pornography
group called “texashottestteens.” The subject line for that group was “Tiny Interest
Trips.” Captain Crane’s message advertised the availability of minors for sexual
activity. Captain Crane’s posted message reads as follows: “Tiny Interest
Companions. Lolita - VYB - VYG. Private travel opportunities available. (Costa
Rica). Discretion assured. E-mail for details.”1
1
Captain Crane explained at trial that “Lolita” referred to an underage girl, “VYB” meant
“very young boy,” and “VYG” meant “very young girl.”
2
The message listed “tiny_interest@yahoo.com” as the e-mail address. It
also provided that if that e-mail address had been deleted by Yahoo!, the person
posting the advertisement could be contacted by using the e-mail address
“xxtinyholzxx@yahoo.com.”
Captain Crane testified that in this sting operation, he did not single out any
person to entice them to respond to his advertisement. Instead, he waited until he
received a response to his advertisement. In his role as a feigned procurer, Captain
Crane’s message provided persons seeking to engage in prohibited sexual conduct
with minors the opportunity to use him as their agent to carry out their intent.
On January 18, 2005, Mr. Vance sent an e-mail to Captain Crane in which
he stated “details please.”2 Mr. Vance identified his e-mail address as
“rocketpwr11234@yahoo.com.” Captain Crane responded as follows:
I got your email inquiry. Tiny Interest Companions
utilizes a private aircraft and flight plan from a medium
sized airport. This insures privacy for our clients since a
group-style manifest is filed. The destination includes
private clubs located in Costa Rica. These very exclusive
clubs offer a variety of choice of VYG’s to VYB’s.
Travel, accommodations for 2 nights / 3 days and
companion are all included in the price. 25% is due at
takeoff with the balance due prior to return. Specific
questions, desires and expectations can be emailed but
for obvious reasons, there is not a website and PayPal is
not accepted.
2
All the correspondence between Captain Crane and Mr. Vance was by internet e-mail.
3
Mr. Vance replied: “ive always wanted to go to costa rica what are ur
prices, and whats included.” Captain Crane’s response stated:
A buddy of mine is a corporate pilot and the
company lets him use the jet twice a year.
We go down to Costa Rica (we try to avoid
the U.S. anyway) from a private gate at a
medium sized metro airport in the Southeast
USA. We stay at the Best Western
Downtown San Jose, which is about 14
miles from the Juna Santamaria
International Airport. The cost is about $58
dollars a night which is included. The rate is
$1,500.00 which covers the trip, hotel, 2
Nights with VYG / VYB (what age span
were you interested in and what you wanted
to do - no pain!!!) I send an email to our
contact there to have things set up - you
choose the one you want at the club) and
that rate leaves a profit margin that my
buddy and I split. If you are still interested,
we can go from there. We are looking at
around the 18 of Feb. or 11th of March.
Mr. Vance’s next message stated: “What no drinks come on its first time
down there.What other islands are near?any pics i like to get a feel of what iam
goin [sic] going to see. g12 15.” On February 2, 2005, Mr. Vance replied as
follows: “i cant wait i bet its warm down there rip off what do u mean. fem 12-17
whats next.”
Captain Crane’s next message stated:
4
Next, I need to know what do you want to do with the
girls so we can line up the appropriate ages before we get
there. 25% ($375) is required prior to departure. We
[sic] way we do that is that you physically cut the money
in half with a pair of scissors. Send half the bills with a
photocopy of the “front” of your passport (I don’t want
your name or anything, but you have to have one to get
back into the U.S. and I just want to make sure you do).
Bring the other half of the bills with you for when we get
on the jet going down. The balance ($1,125) is due
before we come back. If this is satisfactory, let me know
along with your expectations and I’ll send you the
address.
Mr. Vance replied: “them with each other and inter core with m E of course
what else give me ideas, about the other well no problem with money but passport i
dont know can i black out every thing or just insure u i have one will be enough.”
In reply, Captain Crane stated:
Several things I wanted to let you know. We got the
plane for the 11th of March. I emailed my contact in
Costa Rica and he let me know what he had available. If
you wanted two to have sex with each other and
intercourse with you here is what he has initially set up
for the nights there:
Marguarite - 12 years old
Vittoria - 13 years old
Maria - 15 years old
Juanita - 17 years old
If you wanted two of a specific age, I can email him back
so he can make arrangements. I did’t want to commit to
anything until I heard from you so let me know which
ones interest you and he’ll have them there. Believe me,
they are very attractive....he has never let me down
5
before. I like mine a little younger and have already put
my order in.
Last of all, you can mail me at:
T.I. (for Tiny Interest)
P.O. Box 5231
Birmingham, AL 35207 3
Mr. Vance responded: “that works for me now i can mix and match and
two one night or how ever depending on how many nights we are there then.Or did
i have to pick out of the bunch.” Captain Crane replied: “We will be leaving from
the same city as my mailing address and it is a pain to transport 6 kids at one time.
If you are interested in two of them, let me know. That way my contact will be
bringing mine, my buddy’s and your two.” Mr. Vance replied: “that helps I don’t
have your original e-mail with the names but i think these will do 13 and 15 or
very close OK thks.”
On February 23, 2005, Captain Crane informed Mr. Vance that they should
meet on March 11, 2005, at the Birmingham Airport. On March 3, 2005, Captain
Crane sent another message to Mr. Vance explaining the details of the meeting. It
provided:
OK, I will be in the baggage claim area of Birmingham
Airport on Friday morning at around 6:30. If I remember
right, there is a small office area off to the left. I will be
3
The minors described by Captain Crane in this e-mail were fictitious.
6
hanging out there and you can meet me. I will wear tan
khaki pants and a dark red (maroon) long sleeve shirt and
carrying a small black suitcase. I have a moustache and
dark hair...about 6 feet tall. We can go from there and
walk to the private aircraft terminal which is about 100
feet away. We will leave Friday around 7:00 am and we
will come back Sunday afternoon, arriving about 5:00
pm. There are several hotels around the airport...a
Holiday Inn Express and a Days Inn which are about a
mile and a half from the terminal (in case you got in
early). If anything should come up (and I am really
trusting you here) here is a number you can reach me at:
205-954-2987 if there is anything else you need just let
me know. By the way, my name is John for when we
meet. Also just to make sure, the address I gave was TI,
P.O. Box 5231, Birmingham, AL 35207
Talk at ya later,
John
On March 11, 2005, Captain Crane went to the Birmingham Airport to meet
Mr. Vance, if he chose to appear. Captain Crane was accompanied by law
enforcement officers who were working undercover as an airline pilot, and as
fellow passengers on the proposed trip to Costa Rica. After Mr. Vance approached
Captain Crane they proceeded to a private air terminal. There, Mr. Vance, Captain
Crane, and his fellow undercover law enforcement officers were arrested. The
officers were arrested to maintain their undercover status.
After Mr. Vance was arrested, Captain Crane searched a bag carried by Mr.
Vance. It contained his driver’s license, his passport, one-half of paper currency in
the amount of $375 and $553 that had not been cut, traveler’s checks totaling $750,
7
and a copy of an e-mail sent by Captain Crane on March 3, 2005, describing where
Mr. Vance should meet him on March 11, 2005. Mr. Vance’s bag also contained
thirteen condoms.
On March 30, 2005, a federal grand jury indicted Mr. Vance for “knowingly
attempt[ing] to travel in foreign commerce from the State of Alabama to a foreign
country for the purpose of engaging in illicit sexual conduct with other persons, in
violation of Title 18, United States Code, Sections 2423(b) and (e).”
II
A
Mr. Vance testified on his own behalf at trial. Mr. Vance’s attorney asked
Mr. Vance why he responded to Captain Crane’s Yahoo! message. Mr. Vance
stated: “Well, I figured by requesting details, I may or may not be able to gather
more information.” Mr. Vance’s attorney inquired further: “And with that
information, you were going to do what?” Mr. Vance replied: “Turn it in to
Yahoo! to try to get it shut down as a group.”
Mr. Vance testified that after he was arrested, law enforcement officers told
him that they were investigating “John.”4 They told him they needed his help in
gathering information about John and the pilot.
4
Mr. Vance referred to Captain Crane as “John” because Captain Crane informed him on
March 3, 2005, that that was his first name.
8
Mr. Vance gave a statement to the officers. It was written down by one of
the officers. The statement reads as follows:
My name is David Vance. My birth date is August
28, 1977. . . . I have an Internet account with SBC
Global. My screen name is
DLVVANCE1@SBCglobal.net. I have a Yahoo! e-mail
address which is rocketpwr11234@yahoo.com.
I began corresponding by e-mail with a man who
said he had a business called Tiny Interest. He advertised
that he would take people to Costa Rica to have sex with
underage children. I corresponded with him to catch him
and turn him into the police.
I told him I wanted to have sex with girls in the
age range of 12 to 15 years old because I knew that was
illegal and that John, with Tiny Interest, would get in
trouble.
I started trying to catch pedophiles when child
pornography sites kept popping up on my computer. I
looked at the pictures and thought they were bad. I
looked at the FBI website and it said not to go to child
pornography websites. But I did not know how to turn
them in if I didn’t go to the websites. I realized I
probably should not have gone to these websites.
My wife has seen some child pornography pictures
on my computer. She did not approve of them but she
trusts me. I have been to Yahoo! groups and message
boards where people were trading child pornography. I
told them I had a collection and I offered to send them
pictures, if they would send some first. None of them
sent any pictures. I did not have any pictures to send
them.
Some groups have child pornography pictures
posted in them. I have also seen child pornography
pictures on Kazaa. I do not like that program because it’s
like going into other people’s computers, so I did not use
it.
9
The last time I used Kazaa to view child
pornography was about 1999 or 2000, when I had my old
computer. I never sent or received child pornography
because I knew it was illegal and I have tried not to
download too much of it. So mostly I look at websites
but did not download them.
When I decided to respond to Tiny Interest, I was
not sure if I really wanted to go through with it. But after
I had sent the money in to John, I felt like I had invested
too much to go back.
I sent John $375 which were bills cut in half. I
told John I wanted to have sex with a 13-year-old and a
15-year-old girl in Costa Rica. When we got there, I was
going to pretend that I was not interested in doing that.
I told my wife that I was going to Tennessee for a
training course. I told my two cousins that I was going to
Costa Rica for spring break. I did leave my wife a note,
however, that I was doing what I was doing for her and
our children.
I know that having sex with a 13-year-old and a
15-year-old girl was wrong in this country. I do not
know that it was wrong to fly outside the country and do
this. But I figured John was doing something illegal.
I have never had inappropriate conduct with
children. I wanted to catch John by going to Costa Rica.
I realize that the FBI and the police do not want people to
try to catch pedophiles because, in doing so, they have to
engage in the same activities as pedophiles.
I make this statement voluntarily. No threats or promises
have been made to me.
This statement was entered into evidence as Defendant’s Exhibit 1.
Mr. Vance also made an oral statement to the police after his arrest. He told
the officers that he was “going to try to report as much as possible and shut down
as many groups as possible.” He further told the officers: “I was going to go over
10
there and then once I got there, I was going to pretend not to be interested, and go
to the nightclubs instead.”
Mr. Vance also testified that he left his wife a letter in a file cabinet in his
home which he had drafted two hours before he left on his trip. The letter stated:
I am doing this to help children all around. I hope
this works and I don’t end up dead. If so I love you guys
very much and I hope u understand why I did this. I love
my children and hope to put people in jail were [sic] they
belong.
I love you Babe
Mr. Vance further testified that prior to his trip, he informed his cousin,
James Aaron St. John, that he “was going to Costa Rica to help children to gather
information to stop John and that if anything happened to me, to take care of my
family.”
On cross examination, the prosecutor questioned Mr. Vance as follows: “I
want to refer, still looking at your interview [with the FBI after the arrest], Page 3,
Defense Exhibit 3 [sic]. You said in that second paragraph, ‘I told my wife I was
going to Tennessee for a training course.’ Do you see that?” Mr. Vance stated:
“Yes, sir.” The prosecutor asked: “Of course that was a lie, wasn’t it?” Mr.
Vance responded: “Yes, sir.” The prosecutor then inquired: “When the FBI asked
you about it, you [didn’t] tell them, I told two cousins that I was going to Costa
Rica as part of my investigation to save children from being raped?” Mr. Vance
11
replied: “That’s correct.” The prosecutor followed-up this question by asking:
“The only thing you told the FBI, the day that you were interviewed about it is, I
was going on spring break to Costa Rica?” Mr. Vance responded: “Yes, sir.”
B
Mr. St. John testified at trial as a defense witness. He testified that he spoke
with Mr. Vance at a restaurant in Clovis, California in March of 2005, and on a
telephone call when Mr. Vance was in Birmingham, Alabama. Mr. Vance’s
counsel asked Mr. St. John: “What was [sic] the details of the conversation?” The
Government objected, stating: “Your Honor, we’re going to object to hearsay at
this point.” Before the District Court could rule on the Government’s objection,
Mr. Vance’s counsel asked the witness: “What did you learn from David based on
that conversation? That he was not going to –.” Government counsel stated:
“Same objection.” The District Court sustained the objection. Mr. Vance’s
counsel did not object to the District Court’s ruling that the extra-judicial statement
was inadmissible, nor did he make an offer of proof, or argue that the testimony
was admissible as a prior consistent statement to prove that his testimony was not a
recent fabrication.
The jury found Mr. Vance guilty as charged in the indictment.
III
12
The presentence investigation report (“PSR”) prepared for the District Court
set forth a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B), on the ground
that Mr. Vance unduly influenced a minor to engage in prohibited sexual conduct;
and a two-level enhancement under U.S.S.G. § 2G1.3(b)(3)(B), based on Mr.
Vance’s use of a computer to entice, offer, or solicit a person to engage in
prohibited sexual conduct with a minor. The PSR recommended that Mr. Vance’s
total offense level should be 32. His criminal history category was III. His
Sentencing Guidelines range was 151 to 188 months.
At his sentencing hearing, Mr. Vance objected to the application of the
enhancements set forth in §§ 2G1.3(b)(2)(B) and 2G1.3(b)(3)(B). He argued that
he could not have unduly influenced the minors as they were fictitious. He also
asserted that he did not use a computer to solicit a minor. He contended that
Captain Crane used a computer to solicit him to engage in prohibited sexual
conduct with a minor.
The District Court overruled Mr. Vance’s objections. It held that the
existence of an actual minor was not necessary for an enhancement under §
2G1.3(b)(2)(B). It also found that the sentencing enhancement was warranted
because Mr. Vance “was directing someone, who had total control, over the variety
of suggested victims to supply the ones that [he] wanted.”
13
The District Court sentenced Mr. Vance to serve 180 months in prison, to be
followed by 300 months of supervised release. Mr. Vance has timely appealed
from the judgment of conviction and the District Court’s sentencing decision. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)-(2).
IV
A
Mr. Vance contends that the District Court erred in sustaining the
Government’s objection to testimony by Mr. St. John regarding the substance of
his conversation with Mr. Vance. He argues before this Court that Mr. St. John
would have testified that Mr. Vance told him he was going to Costa Rica to help
children. Mr. Vance maintains that this statement was admissible as a prior
consistent testimony.
“A district court is granted broad discretion in determining the admissibility
of a prior consistent statement under Fed.R.Evid. 801(d)(1)(B) and will not be
reversed absent a clear showing of abuse of discretion.” United States v. Prieto,
232 F.3d 816, 819 (11th Cir. 2000). However, “[w]here a party makes no
objection in the trial court to the matter complained of on appeal, our review is for
plain error.” Id. Plain error exists “only where (1) there is an error; (2) the error is
plain; (3) the error affects the defendant’s substantial rights in that it was
14
prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity or public reputation of a judicial proceeding.” Id. Mr. Vance failed to
argue to the District Court that the statement was admissible as a prior consistent
statement. He also failed to make an offer of proof that he would present evidence
that Mr. Vance’s testimony was not a recent fabrication. Therefore, we must
review the District Court’s exclusion of the testimony for plain error.
Pursuant to Rule 801(d)(1)(B) of the Federal Rules of Evidence, a prior
consistent statement by a witness is not hearsay if “[t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement,” and
the statement is “consistent with the declarant’s testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrication or improper
influence or motive.” There are exceptions to this rule. First, “prior consistent
statements are treated as admissible non-hearsay only if they are offered to rebut a
specific allegation of recent fabrication, not to rehabilitate credibility that has been
generally called into question.” United States v. Drury, 396 F.3d 1303, 1316 (11th
Cir. 2005) (emphasis in original). Second, to be admissible under Rule
801(d)(1)(B) “the [prior] consistent statements must have been made before the
alleged influence, or motive to fabricate, arose.” Tome v. United States, 513 U.S.
150, 158 (1995). This Court has explained that the question “whether a witness
15
had a motive to fabricate when prior consistent statements were made is plainly a
question of fact to be resolved by the trial court based precisely on the particular
circumstances of an individual case” and that determination is entitled to great
deference on review. Prieto, 232 F.3d at 821. The failure of Mr. Vance to argue
that Mr. St. John’s testimony was admissible under Rule 801(d)(1)(B) deprived the
District Court of the opportunity to make a finding regarding whether Mr. Vance
had the motive to fabricate when he spoke to Mr. St. John.
Mr. Vance contends that the Government impliedly accused him of
fabricating his testimony that his intent, in responding to Captain Crane’s
advertisement, was to gather evidence to assist law enforcement. During cross-
examination, the prosecutor asked Mr. Vance why he had not told the officers after
his arrest that he had stated to Mr. St. John that the purpose of his trip was to help
children. Mr. Vance’s written statement indicates that he informed Mr. St. John
and another cousin that he was going to Costa Rica for spring break.
Mr. Vance has failed to demonstrate that he did not have a motive to
fabricate his testimony before he spoke to Mr. St. John. At the time he spoke to
Mr. St. John, Mr. Vance had already sent e-mails to Captain Crane expressing his
interest in engaging in illegal sexual conduct with minors. The District Court did
16
not commit plain error in excluding Mr. St. John’s testimony regarding his
conversations with Mr. Vance.
B
Mr. Vance contends that the District Court erred in overruling his objection
to the imposition of a two-level base offense increase for unduly influencing a
minor to engage in prohibited sexual conduct pursuant to U.S.S.G.
§ 2G1.3(b)(2)(B). He argues that there is no evidence that he exerted any influence
over a minor. He also maintains that § 2G1.3(b)(2)(B) is inapplicable where a
defendant has selected fictitious minors for prohibited sexual conduct from a list
provided by an undercover officer.
This Court reviews a District Court’s interpretation of the Sentencing
Guidelines de novo, and its factual findings for clear error. United States v. Jordi,
418 F.3d 1212, 1214 (11th Cir. 2005). Section 2G1.3(b)(2)(B) provides that the
base offense level should be increased by 2 if “a participant [of the crime]
otherwise unduly influenced a minor to engage in prohibited sexual conduct.”
Application Note 1 of § 2G1.3 provides that “‘Minor’ means . . . an individual,
whether fictitious or not, who a law enforcement officer represented to a
participant (i) had not attained the age of 18 years, and (ii) could be provided for
the purposes of engaging in sexually explicit conduct.”
17
This Court held in United State v. Root, 296 F.3d 1222, 1233 (11th Cir.
2002) that, under U.S.S.G. § 2A3.2 (2000),5 “an undercover officer playing the role
of a minor victim qualifies as a victim, thereby making an actual victim
unnecessary.” This Court reasoned that § 2A3.2 (2000) was enacted for the
purpose of “ensuring that offenders who are apprehended in undercover operations
are appropriately punished.” Id. at 1234 (internal quotation marks omitted).
This Court held in Root that “when an undercover officer is the recipient of
communications related to the commission of a sex crime offense and no actual
child is involved, a district court considering an undue influence enhancement,
under § 2A3.2(b)(2)(B), must focus on the offender’s conduct.” Id. The Court
explained that a contrary “interpretation would [] undermine the Sentencing
Commission’s stated purpose in amending the definition of victim under § 2A3.2
of ensuring that offenders who are apprehended in an undercover operation are
appropriately punished.” Id. (internal quotation marks omitted).6
5
Application Note 1 to U.S.S.G. § 2A3.2 (2000) provided that: “Victim” includes “an
undercover law enforcement officer who represented to a participant that the officer had not attained
the age of 16 years.”
6
In his brief, Mr. Vance reminds us that two of our sister Circuits have expressly declined
to follow this Court’s holding in Root that the sentencing enhancement set forth in § 2A3.2(b)(2)(B)
is applicable in a sting operation where the minor is fictitious. See United States v. Mitchell, 353
F.3d 552, 562 (7th Cir. 2003) (holding that “[w]here the state of mind of the victim is critical, and
perhaps dispositive, it simply cannot apply in the case where the victim has no state of mind
whatsoever because she does not exist”); United States v. Chriswell, 401 F. 3d 459, 469 (6th Cir.
2005) (holding that Ҥ 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”). We, of course, are bound to follow the
18
In United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), this Court held
that sentencing enhancements can be applied even though the defendant only
communicated with a male undercover officer who was posing as the father of a
fictitious thirteen-year-old daughter. Id. at 1289-90. In Murrell, the defendant was
convicted, under 18 U.S.C. § 2422(b), of “using a facility of interstate commerce to
attempt to knowingly persuade, induce, entice, or coerce a minor to engage in
unlawful sexual activity.” Id. at 1284. This Court held that the District Court
properly enhanced the defendant’s sentence under U.S.S.G. § 2G1.1(b)(2)(B)
(2003), a similar Sentencing Guidelines provision to § 2G1.3(b)(2)(B). Id. at 1289.
The 2003 version of § 2G1.1(b)(2)(B) 7 provided that a defendant should receive a
two-level sentencing enhancement for “an offense involving a victim between the
ages of twelve and sixteen.” Id. at 1288 (internal quotation marks omitted).
This Court explained in Murrell that “[b]ecause the Sentencing Commission
specifically provided that undercover officers are victims for purposes of § 2G1.1,
law of this Circuit. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“it is the
firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first
panel to address an issue of law, unless and until that holding is overruled en banc or by the Supreme
Court”).
7
Section 2G1.1(b)(2)(B) (2003) provides that for crimes relating to “Promoting A
Commercial Sex Act or Prohibited Sexual Conduct” “[i]f the offense involved a victim who had .
. . (B) attained the age of 12 years but not attained the age of 16 years, increase [base offense level]
by 2 levels.”
19
we deduce that the enhancement is directed at the defendant's intent, rather than
any actual harm caused to a genuine victim.” Id. at 1289 (internal quotation marks
omitted).8 “Thus, the enhancement applies whether the minor ‘victim’ is real,
fictitious, or an undercover officer.” Id.
In United States v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005), this Court
affirmed the District Court’s decision to enhance a defendant’s sentence under
U.S.S.G. § 2A3.1(b)(2)(A) (2003), after the defendant “pleaded guilty to traveling
in interstate commerce with the intent to have sex with a minor, in violation of 18
U.S.C. § 2423(b).” Id. at 1265. The defendant in Lebovitz responded to an internet
bulletin board message posted by then Lt. John Crane of the Birmingham Police
Department as part of a sting operation to catch pedophiles preying on children.
Id. The message was entitled “teengirls4men.” Id. Lt. Crane, using an alias, e-
mailed a response to the defendant, posing as a father with three fictitious children
under the age of twelve who would be available for sex. Id. at 1265-66. Section
2A3.1(b)(2)(A) (2003) provided that “[i]f the victim had not attained the age of
8
Application Note 1 to U.S.S.G. § 2G1.1 (2003) provided that:
‘Victim’ means a person transported, persuaded, induced, enticed, or
coerced to engage in, or travel for the purpose of engaging in, a
commercial sex act or prohibited sexual conduct, whether or not the
person consented to the commercial sex act or prohibited sexual
conduct. Accordingly, “victim” may include an undercover law
enforcement officer.
20
twelve years” the base offense level should be “increase[d] by 4 levels.”9 Relying
on Root, this Court held that an enhancement under § 2A3.1(b)(2)(A) was
applicable. Id. at 1268-70. It explained that “whether a victim is fictitious is
irrelevant to the application of a federal statute or sentencing guideline prohibiting
sexual conduct with a minor.” Id. at 1268.
Here, Mr. Vance used his superior knowledge and resources in an attempt to
unduly influence the fictitious minors. He used his knowledge of computers and
the internet to contact people whom he believed would supply minors for sexual
conduct. He also used his financial resources to pay the feigned procurer to act as
his agent in influencing the minors to satisfy his sexual desires.
Mr. Vance contends that § 2G1.3(b)(2)(B) is inapplicable to his conduct
because he was not a direct participant in unduly influencing a minor to engage in
prohibited sexual conduct. He argues that he “merely agreed, through a third party,
to travel to Costa Rico to have illicit intercourse.” We disagree. Mr. Vance
participated in attempting to unduly influence a minor by employing “John” to
supply minors to engage in sexually explicit conduct. The fact that an agent was
used as an intermediary to effectuate Mr. Vance’s influence over the minors
supports the conclusion of undue influence. Mr. Vance used his superior
9
The 2003 version of § 2A3.1 provided that: “‘Victim’ includes an undercover law
enforcement officer.”
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knowledge and financial resources to out-source the task of asserting undue
influence on a minor.
As this Court explained in Lebovitz and Murrell, in interpreting similar
Guidelines sections, the focus is on the defendant’s intent, not whether the victim
is real or fictitious. See Lebovitz, 401 F.3d at 1269-70; Murrell, 368 F.3d at 1289.
Here, the jury rejected Mr. Vance’s defense and found that Mr. Vance intended to
have sexual contact with real minors. The fact that the minors actually were
fictitious does not change the applicability of the two-level enhancement pursuant
to § 2G1.3(b)(2)(B). Accordingly, the District Court did not err in enhancing Mr.
Vance’s base offense level pursuant to U.S.S.G. § 2G1.3(b)(2)(B).
C
Mr. Vance also maintains that the District Court erroneously applied the
Sentencing Guidelines enhancement set forth in U.S.S.G. § 2G1.3(b)(3)(B)
because the District Court erroneously determined that it applies to the use of a
computer by an undercover officer to provide the recipients of his internet message
with the opportunity of hiring him to procure minors for prohibited sexual conduct.
Pursuant to § 2G1.3(b)(3)(B), a District Court must apply a two-level
increase to a defendant’s base offense level “[i]f the offense involved the use of a
computer or an interactive computer service to . . . entice, encourage, offer, or
22
solicit a person to engage in prohibited sexual conduct with the minor.”
Application Note 4 to § 2G1.3 explains that “[s]ubsection (b)(3) is intended to
apply only to the use of a computer or interactive computer service to
communicate directly with a minor or with a person who exercises custody, care,
or supervisory control of the minor.”
As discussed above, in Murrell, an undercover officer posed as the father of
a thirteen-year-old girl whom he agreed to rent to Murrell for prohibited sexual
conduct. 368 F.3d at 1284-85. In its sentencing decision, the District Court
imposed a two-level enhancement, pursuant to § 2G1.1(b)(5), because Murrell
communicated with the “father,” by using a computer. Id. at 1285. This Court
affirmed the enhancement, holding that, because Murrell used a computer to
communicate with the “father” and Murrell likely believed that the “father”
exercised control and authority over his minor daughter, the enhancement was
proper under § 2G1.1(b)(5)(A) and its commentary. Id. at 1289-90.
In this matter, Mr. Vance used a computer to direct his agent to provide
minor girls for illicit sexual conduct. Mr. Vance’s argument that the enhancement
is inapplicable in his case because he did not personally solicit the minors ignores
the plain meaning of the language of § 2G1.3(b)(3)(B).
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Here, as in other sting operations, Captain Crane, posing as “John,” posted a
message on a web site to provide sexual predators the opportunity to use “John” as
their agent to provide minors for sexual activities. Mr. Vance took the opportunity
provided by Captain Crane. These facts squarely fit into the plain language of
§ 2G1.3(b)(3)(B). The District Court found that Mr. Vance believed that “John”
had supervisory control over the minors because Captain Crane represented that he
“offer[ed] a variety of” underage girls and he would “line up the appropriate” girls
and make them available for Mr. Vance upon arriving in Costa Rica. Accordingly,
we conclude that the District Court did not err in applying a two-level
enhancement, pursuant to § 2G1.3(b)(3)(B), to Mr. Vance’s base offense level.
AFFIRMED.
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