United States v. Butler

Case: 22-20171     Document: 00516705177          Page: 1    Date Filed: 04/07/2023




           United States Court of Appeals
                for the Fifth Circuit                                United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                         April 7, 2023
                                   No. 22-20171                        Lyle W. Cayce
                                                                            Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Thomas Douglas Butler,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:20-CR-411-1


   Before Ho, Oldham, and Douglas, Circuit Judges.
   James C. Ho, Circuit Judge:
          Under the federal Sentencing Guideline that governs the sexual
   exploitation of a minor, a two-level enhancement applies to a defendant’s
   base offense level if the underlying offense involves “the commission of a
   sexual act or sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A). The Application
   Notes to the Guideline expressly incorporate the definition of “sexual
   contact” that appears in 18 U.S.C. § 2246(3). And that statute defines
   “sexual contact” to mean “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
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   arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)
   (emphasis added).
          Our circuit has not yet addressed whether “sexual contact” under
   U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes an act of
   masturbation. But four other circuits have answered in the affirmative. See
   United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009) (“[T]he plain
   meaning of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C.
   § 2246(3) includes the act of masturbating.”); United States v. Shafer, 573
   F.3d 267, 273–74 (6th Cir. 2009) (“‘[S]exual contact,’ as defined by §
   2246(3), includes self-masturbation.”); United States v. Pawlowski, 682 F.3d
   205, 212 (3rd Cir. 2012) (“[T]he language of [§ 2246(3)] is unambiguous: it
   is clear that ‘of any person’ includes a defendant himself and does not require
   the touching of the victim.”); United States v. Raiburn, 20 F.4th 416, 422 (8th
   Cir. 2021) (“Following our sister circuits, we . . . hold that the plain meaning
   of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3)
   includes the act of masturbating.”) (quotations omitted).
          We see no reason to disagree with the consensus of our sister circuits,
   and Butler provides none. Accordingly, we join our sister circuits and hold
   that “sexual contact” in this context includes masturbation. We affirm.
                                          I.
          Thomas Douglas Butler initiated inappropriate relationships with two
   minor victims and coerced them into engaging in sexually explicit conduct.
          Butler began messaging the first minor victim (“MV1”), a fourteen-
   year-old girl, through the FaceFlow application and text messaging. He then
   drove from Houston to San Antonio to pick up MV1, and she snuck out from
   her house to travel with him to Houston. MV1’s mother contacted the San
   Antonio Police Department once she realized that MV1 was missing. The
   FBI obtained MV1’s mother’s consent to search MV1’s phone. In it, the FBI




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   discovered messages between MV1 and Butler that revealed their
   preparations to meet in secret and abscond. FBI agents tracked Butler to a
   hotel in Houston, where they arrested him. MV1 told a Child Forensic
   Interviewer that Butler had kept her constantly intoxicated and had sex with
   her eight times during the four days he kept her at the hotel.
          FBI agents searched the hotel room—which Butler had been renting
   for a year—and seized three laptops, three iPhones, and one thumb drive.
   One of the laptops contained child pornography.
          The search of the laptop also revealed that Butler had groomed
   another minor victim (“MV2”), a fifteen-year-old girl residing in North
   Carolina. Butler had contacted MV2 through online platforms and had
   coerced her into engaging in sexually explicit conduct on camera while video
   chatting with him. Butler recorded videos of these interactions and saved
   them on his laptop. The videos depicted MV2 masturbating, while screen-
   in-screen videos depicted Butler masturbating simultaneously. FBI agents
   contacted MV2’s parents and scheduled a child forensic interview with
   MV2. During the interview, MV2 explained that she believed Butler was
   depressed, and that he would say things like “they’re coming to get me” and
   “I’m going to shoot myself” to control her.
          A grand jury indicted Butler on one count of coercion and enticement,
   in violation of 18 U.S.C. § 2422(b), and one count of sexual exploitation of
   children, in violation of 18 U.S.C. §§ 2251(a) and (e). Butler pleaded guilty
   to these charges. As a factual basis for his guilty plea, Butler admitted that
   he “groomed minor victim two and used emotional ploys, such as threatening
   suicide, to gain control of her actions,” and that he also “threatened to send
   some of the videos to her parents if she did not continue to engage in online
   sexual chats” with him. He also admitted that the videos “were obtained
   during Skype Chats” with MV2.




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          The presentence investigation report (“PSR”) recommended a two-
   level enhancement under U.S.S.G. § 2G2.1(b)(2)(A), because the offense
   “involved the commission of a sexual act or sexual contact.” The PSR also
   recommended a two-level enhancement under U.S.S.G. § 2G2.1(b)(6)(B)(i),
   because the offense “involved the use of a computer to solicit the
   participation of MV2 to engage in sexually explicit conduct.” The PSR
   calculated a total offense level of 42, which—combined with a criminal
   history category of IV—yielded a Guidelines range of 360 months to life
   imprisonment. Butler objected to the first enhancement, arguing that his
   crime did not involve “sexual contact” because he never had physical contact
   with MV2.
          Butler renewed this objection at his sentencing hearing. But his
   attorney told the district court that, even if his objection was sustained, “it
   would not impact the guidelines range.” He described his argument as
   “somewhat academic” and reiterated that “it won’t impact the guidelines.”
   After hearing the Government’s response, the district court overruled
   Butler’s objection. After stating that it was “mindful of” facts such as
   Butler’s “significant criminal history,” the district court sentenced him to
   480 months of imprisonment. Butler timely appealed.
                                         II.
          On appeal, Butler argues that the district court erred in imposing the
   § 2G2.1(b) enhancements. We address each enhancement in turn.
                                         A.
          Butler argues that the district court erred in applying the two-level
   enhancement under § 2G2.1(b)(2)(A) because his crimes did not involve a
   “sexual act” or “sexual contact.” He contends that a “sexual act” requires
   the intentional touching of another person, while “sexual contact” requires
   physical contact with another person. Butler maintains that he did not touch




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   or come into physical contact with MV2, and that MV2’s masturbation does
   not constitute “sexual contact.” He also argues that there is no evidence that
   MV2 masturbated with the intent to arouse or gratify his sexual desires.
           Because Butler preserved this argument in the district court, our
   review of the Guidelines application is de novo. See United States v. Alcantar,
   733 F.3d 143, 146 (5th Cir. 2013). We review factual findings for clear error.
   Id. In making factual findings, “a district court may consider any information
   that bears sufficient indicia of reliability to support its probable accuracy.”
   United States v. Landreneau, 967 F.3d 443, 451 (5th Cir. 2020) (quotations
   omitted).
           The Guidelines provide for a two-level enhancement “[i]f the offense
   involved (A) the commission of a sexual act or sexual contact.” U.S.S.G. §
   2G2.1(b)(2)(A).    The Application Notes incorporate the definitions of
   “sexual act” and “sexual contact” stated in 18 U.S.C. § 2246(2)–(3). Id.
   cmt. n.2. Section 2246(2) defines “sexual act” as “(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 intent to abuse, humiliate, harass,
   degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. §
   2246(2)(D). Section 2246(3) defines “sexual contact” 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.” Id. § 2246(3).
           Whether masturbation constitutes “sexual contact” is an issue of first
   impression for our circuit. Butler acknowledges that other circuits have
   already addressed this issue. What he omits is that those circuits have
   uniformly interpreted “sexual contact” to include masturbation. See supra,
   at 2.    And they have interpreted “sexual contact” to include both




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   masturbation by the defendant and the coerced masturbation of a victim. See
   Aldrich, 566 F.3d at 979 (defendant); Shafer, 573 F.3d at 279 (victim);
   Pawlowski, 682 F.3d at 211–13 (defendant); Raiburn, 20 F.4th at 423–24 (both
   defendant and victim); United States v. Sanchez, 30 F.4th 1063, 1075 (11th
   Cir. 2022) (victim), cert. denied, 143 S. Ct. 227 (2022).
          We are persuaded by our sister circuits. The plain meaning of “sexual
   contact” includes masturbation, because that act necessarily entails the
   “intentional touching . . . of the genitalia . . . of any person with an intent to .
   . . arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)
   (emphasis added). And that is so whether the act is performed by the
   defendant or by the victim.
          This is further confirmed by Congress’s deliberate decision to use
   different language to define a “sexual act.” Congress limited the definition
   of a “sexual act” to the touching “of another person”—but it expanded the
   scope of “sexual contact” to the touching “of any person.” Compare 18
   U.S.C. § 2246(2)(D) (emphasis added), with 18 U.S.C. § 2246(3) (emphasis
   added). See also Pawlowski, 682 F.3d at 212 (“[W]here Congress includes
   particular language in one section of a statute but omits it in another section
   of the same Act, it is generally presumed that Congress acts intentionally and
   purposely in the disparate inclusion or exclusion.”). “‘Another person’
   clearly requires at least two individuals to be involved in the act. Thus,
   because Congress chose to use different language when defining ‘sexual
   contact,’ it seems clear that Congress intended not to limit ‘sexual contact’
   in the same way it limited ‘sexual act.’” Shafer, 573 F.3d at 273. The
   definition of “sexual contact” thus sweeps in masturbation by either a victim
   or a defendant—the “intentional touching . . . of the genitalia . . . of any
   person.” 18 U.S.C. § 2246(3).




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          Here, it’s undisputed that Butler’s crimes involved masturbation by
   MV2. Butler denies that MV2 masturbated at his request or for his sexual
   gratification. But Butler ratified the government’s summary of the facts,
   which states that he “groomed minor victim two and used emotional ploys,
   such as threatening suicide, to gain control of her actions, and he also
   threatened to send some of the videos to her parents if she did not continue
   to engage in online sexual chats with the defendant.”
          Butler also appears to argue that MV2 lacked the intent to arouse or
   gratify him because there is no evidence that MV2 was able to see him
   masturbating. But Butler admitted that the videos “were obtained during
   Skype Chats” and included screen-in-screen videos or screen swapping
   videos depicting Butler masturbating as he watched MV2 masturbate. It was
   reasonable for the district court to conclude that MV2 was able to see Butler
   masturbating.
          Even if MV2 didn’t see Butler masturbating, she knew that Butler was
   watching—after all, she acted at his behest. So it’s reasonable to believe that
   MV2 intended to arouse or gratify his sexual desires. Moreover, § 2246(3)
   only requires that she intended to “arouse or gratify the sexual desire of any
   person,” including herself. 18 U.S.C. § 2246(3) (emphasis added). It was
   reasonable to believe that, even if MV2 didn’t intend to arouse or sexually
   gratify Butler, she meant to arouse or sexually gratify herself. See Shafer, 573
   F.3d at 278 (“[S]elf-masturbation is an act meant to invoke a sexual response
   in the performer or a viewer.”). We see no error in the district court finding
   that MV2 masturbated with the intent to arouse or sexually gratify “any
   person.”
          Accordingly, the district court did not err in applying U.S.S.G. §
   2G2.1(b)(2)(A) to Butler’s sentence.




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                                          B.
          Butler also argues that the district court erred in applying the two-
   level enhancement under § 2G2.1(b)(6)(B)(i) because the Government failed
   to present evidence that he solicited MV2’s participation in sexually explicit
   conduct. But Butler failed to preserve this argument in the district court, so
   we review only for plain error. See United States v. Medina-Anicacio, 325 F.3d
   638, 643 (5th Cir. 2003).
          “Under the plain error analysis, this Court may only reverse based on
   a forfeited error when there is: (1) an error; (2) that is clear or obvious; and
   (3) that affects the appellant’s substantial rights.” Id. at 647. “If the
   appellant establishes these factors, this Court may exercise its discretion to
   correct the error if it seriously affects the fairness, integrity, or public
   reputation of judicial proceedings.” Id.
          The Guidelines provide for a two-level enhancement if, “for the
   purpose of producing sexually explicit material,” the offense of conviction
   involved “the use of a computer or an interactive computer service to (i)
   persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage
   in sexually explicit conduct, or to otherwise solicit participation by a minor in
   such conduct.” U.S.S.G. § 2G2.1(b)(6)(B)(i).
          Our inquiry ends at step one of the plain error analysis. The parties
   agree that the Guidelines themselves do not provide a definition for
   “solicit.” Butler proposes that “solicit” means to “ask, induce, advise, or
   command (a person) to do something.” The Government suggests that
   “solicit” means to entice or lure. But under either definition, Butler plainly
   solicited MV2’s participation in sexually explicit conduct. As noted earlier,
   Butler acknowledged that he “groomed” MV2, used “emotional ploys, such
   as threatening suicide, to gain control of her actions,” and “threatened to
   send some of the videos to her parents if she did not continue to engage in




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   online sexual chats” with him. Accordingly, the district court did not err in
   finding that Butler solicited MV2’s participation in sexually explicit conduct.
                                        ***
          We affirm.




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