United States v. Panfil

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 25, 2003
No. 02-15627
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-20342 CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIAN PANFIL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 25, 2003)

Before ANDERSON, COX and MAGILL*, Circuit Judges.

PER CURIAM:

*
Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
Brian Panfil appeals his conviction and sentence for using the internet to

persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422.

Panfil challenges the constitutionality of the statute, arguing that § 2422(b) is

overbroad and vague. Panfil also contests the district court’s application of § 2A3.2

of the Sentencing Guidelines to calculate his sentence. We affirm.

I. BACKGROUND & PROCEDURAL HISTORY1

On April 1, 2002, United States Secret Service Special Agent Timothy Devine

logged onto the Yahoo Internet Relay Chatroom, an instrument of interstate

commerce, under the screen name “Hialeahnina13.” Brian Panfil, who had logged

into the same chat room under the screen name “Freeoralslave,” contacted

Hialeahnina13 via private message. After Hialeahnina13 identified herself as a 13-

year-old female, Panfil then initiated sexually explicit chat conversation, asking

Hialeahnina13 to meet him to engage in sexual activity. Specifically, Panfil offered

to furnish oral sex, telling Hialeahnina13 that oral sex would “relax you” and “make

u feel good.” (R.2-83 at ¶ 3).

Panfil and Hialeahnina13 then agreed to meet the next evening at 10:00 p.m.

in a parking lot behind a local grocery store. Panfil encouraged Hialeahnina13 to get

a good night’s sleep, telling her, via email, “you will have some powerful orgasms

1
We draw the background from the stipulated facts.

2
tomorrow.” (R.2-83 at ¶ 4). Panfil indicated that he would be driving a red car, and

Hialeahnina13 said that she would be wearing a white shirt and a black cap.

On April 2, 2002, Panfil contacted Hialeahnina13 both through the Internet on

the Yahoo chat room and through private emails to confirm the meeting time and

place. That evening, a female undercover agent, posing as Hialeahnina13, positioned

herself behind the grocery store. At 10:55 p.m., a red car pulled into a parking space

near the undercover agent. Panfil, the driver of the red car, was arrested and given

his Miranda warnings. Panfil initialed copies of the chat text and private emails to

Hialeahnina13, and stated that he initiated a sexually explicit conversation with

Hialeahnina13. Panfil also stated that there was nothing in the electronic

conversations to indicate that Hialeahnina13 was anyone other than a 13-year-old girl.

Panfil pleaded guilty to a violation of 18 U.S.C. § 2422(b). The district court

sentenced Panfil to 33 months’ imprisonment, accepting the Presentence Investigation

Report’s (“PSI’s”) recommendation that § 2A3.2 was the proper Sentencing

Guideline under which to calculate Panfil’s sentence. Panfil appeals.

II. ISSUES ON APPEAL

Panfil presents two issues on appeal: (1) whether 18 U.S.C. § 2422 is

unconstitutionally overbroad or vague; and (2) whether the district court erred in

applying USSG § 2A3.4 to calculate his sentence.

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III. STANDARD OF REVIEW

We review de novo the constitutionality of the challenged statute. United

States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002). We also review de novo the

district court’s interpretation of the Sentencing Guidelines. United States v. McClain,

252 F.3d 1279, 1284 (11th Cir. 2001).

IV. DISCUSSION

Panfil contends that §2422(b) is unconstitutionally overbroad and vague. We

address these arguments in Part A. Panfil also objects to his sentence, arguing that

the district court erred in applying USSG § 2A3.2 instead of § 2A3.4. We address his

objections in Part B.

A. Overbreadth and Vagueness

Title 18 U.S.C. § 2422 (b) states,

Whoever, using the mail or any facility or means of interstate or
foreign commerce, or within the special maritime and territorial
jurisdiction of the United States 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.2

2
The district court found that Panfil had violated Fla. Stat. § 800.04(4) and (6). (R.3
at 10.) Section 800.04(4) provides that “[a] person who: (a) Engages in sexual activity with a person
12 years of age or older but less than 16 years of age . . . commits lewd or lascivious battery, a felony
of the second degree . . . .” Fla. Stat. § 800.04(4). Section 800.04(6) provides that “[a] person who
. . . [s]olicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or

4
18 U.S.C. § 2422(b). Panfil contends that § 2422(b) is both overbroad and vague.

Focusing first on the terms “entice”and “induce,” Panfil argues that because

those terms are not defined internally or by cross-reference, § 2422(b) has a chilling

effect on those who wish to engage in legitimate speech with minors on sexual topics.

In support, Panfil cites Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329 (1997), in

which the Supreme Court invalidated provisions of the Communications Decency Act

(“CDA”), 47 U.S.C. §§ 223 et seq. In Reno, the Court ruled that the CDA

“effectively suppresses a large amount of speech that adults have a constitutional

right to receive and to address to one another.” 521 U.S. at 874, 117 S. Ct. 2346. The

Reno Court expressed concern that the CDA might prohibit a parent from sending

contraceptive information over the internet to his 17-year-old college freshman. Id.

at 878, 117 S. Ct. 2348. Similarly, Panfil observes that a parent who uses the internet

to advise an underage son or daughter on the merits of birth control could implicate

the statute by inducing or enticing her child to engage in sexual activity.

Panfil’s reliance on Reno is misplaced. In ruling that the CDA was overbroad,

the Reno Court focused on the terms “indecent” and “patently offensive,” contained

respectively in 47 U.S.C. § 223(a)(B)(ii) and § 223(d)(1)(B). 521 U.S. at 877, 117

lascivious conduct.” Fla. Stat. § 800.04(6). Section 800.04(1) defines sexual activity as “the oral,
anal, or vaginal penetration by, or union with, the sexual organ of another . . . .” Fla Stat. §
800.04(1).

5
S. Ct. 2347. The CDA failed to define these general terms, sweeping within its ambit

“nonpornographic material with serious educational or other value.” Id.

Section 2242(b) suffers from no such constitutional infirmity. See United

States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). The words “entice” and “induce”

are not ambiguous or subject to varying standards, as were the terms that were used

in the CDA. Indeed, the language of § 2422(b) is clear.3

Panfil also contends that § 2242(b) is void for vagueness. Panfil argues that

the same failure to define “entice” and “induce,” as well as “sexual activity for which

any person can be charged with a criminal offense” leaves ordinary citizens to guess

at what communications would constitute illegal enticement or inducement. This

contention is without merit because the terms cited by Panfil have plain and ordinary

meanings.

Furthermore, the statute ensures that only those who “knowingly” engage in

the illegal conduct are subject to prosecution. This scienter requirement discourages

“unscrupulous enforcement” and clarifies § 2422(b). See United States v. Acheson,

195 F.3d 645, 652 (11th Cir. 1999); Bailey, 228 F.3d at 639.

3
Even if the terms were not plainly clear, Panfil’s particularized example falls short
of the standards required to demonstrate that the statute is overbroad. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, ___, 122 S. Ct. 1389, 1399 (2002) (stating that a statute is unconstitutional
on its face if it prohibits a substantial amount of protected expression); Horton v. City of St.
Augustine, 272 F.3d 1318, 1332 (11th Cir. 2001).

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We conclude that § 2422(b) is not unconstitutionally overbroad or vague.

B. Sentencing Guidelines

The district court accepted the recommendation in the PSI and computed

Panfil’s sentence under United States Sentencing Commission, Guidelines Manual,

§ 2A3.2 (Nov. 2001). Panfil objects, contending that the district court erred in

applying § 2A3.2 because his conduct did not fall within § 2A3.2's parameters.

Instead, Panfil argues, § 2A3.4 is applicable.

To properly interpret the Sentencing Guidelines, we begin with the language

of the Guidelines, see Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S. Ct.

755, 760 (1999), considering both the Guidelines and the commentary. United States

v. Ferreira, 275 F.3d 1020, 1029 (11th Cir. 2001); see also United States v. Maria,

186 F.3d 65, 70 (2d Cir. 1999) (“The Sentencing Guidelines . . . are to be construed

as if they were a statute, giving the words used their common meaning, absent a

clearly expressed manifestation of contrary intent.”) (quotations and citations

omitted).

When a defendant is convicted under 18 U.S.C. § 2422, sentencing under §

2G1.1 is appropriate. USSG App. A. The parties agree that § 2G1.1(c)(3)

(Promoting Prostitution or Prohibited Sexual Conduct) is the governing Guideline

provision. Section 2G1.1(c)(3) states,

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If the offense did not involve promoting prostitution, and neither
subsection (c)(1) nor (c)(2) is applicable, apply § 2A3.2 (Criminal
Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory
Rape) or Attempt to Commit Such Acts) or § 2A3.4 (Abusive Sexual
Contact or Attempt to Commit Abusive Sexual Contact), as appropriate.

USSG § 2G1.1.

Looking at the titles of the cross referenced sections to see which is more

appropriate, we conclude that the district court properly selected Guideline § 2A3.2

(“Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape)

or Attempt to Commit Such Acts”). Section 2A3.2 states,

(a) Base Offense Level:

(1) 24, if the offense involved (A) a violation of chapter 117
of title 18, United States Code; and (B)(i) the commission
of a sexual act; or (ii) sexual contact;

(2) 21, if the offense (A) involved a violation of chapter 117 of
title 18, United States Code; but did not involve (i) the
commission of a sexual act; or (ii) sexual contact; or

(3) 18, otherwise.

USSG § 2A3.2(a). We find that § 2A3.2(a)(2) explicitly controls, because § 2422 is

contained in chapter 117 of title 18 and Panfil did not actually commit a sexual act

nor did he sexually contact the victim.

But the crucial inquiry is whether Panfil’s conduct consisted of an attempted

“sexual act” or attempted “sexual contact.” Section 2A3.2 defines the terms “sexual

8
act” and “sexual contact” in Commentary Note 1 by cross-reference to 18 U.S.C. §

2246(2) and (3). Sexual act means “(B) contact between . . . the mouth and the vulva

. . . (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). Sexual contact means “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).

Looking to these definitions, we find that Panfil’s attempt to have oral sex with

a 13-year-old girl was an attempted “sexual act” and not merely attempted “sexual

contact.” Since § 2A3.2 unambiguously differentiates between a sexual act and

sexual contact, our analysis of § 2A3.2 ends with the Guideline’s plain language. See

Coggin Auto. Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326, 1332 (11th Cir.

2002).

Having found that § 2A3.2 applies to Panfil’s conduct, we consider § 2A3.4

(“Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact”) only to

see if the plain language there could apply to Panfil’s conduct as well, presenting the

district court with a conflict. Section 2A3.4 defines abusive sexual contact in the

9
negative, stating in the background commentary that “[t]his section covers abusive

sexual contact not amounting to criminal sexual abuse . . . .” USSG § 2A3.4,

comment. (backg’d.) Section 2A3.4(c)(2) also states, “[i]f the offense involved

criminal sexual abuse of a minor or attempt to commit criminal sexual abuse of a

minor (as defined in 18 U.S.C. § 2243(a))4, apply § 2A3.2 . . . if the resulting offense

is greater than that determined above.” USSG § 2A3.4(c)(2). Section 2243(a)

contains the language “sexual act,” and the definition of sexual act in § 2246(2)

applies to § 2243. Since § 2A3.4 excludes any conduct that is a “sexual act,” we do

not find any language in § 2A3.45 that would place it in conflict with § 2A3.2.

Panfil raises an argument derived from § 2A3.2's background. The background

states, in relevant part, that this section “applies to cases, prosecuted under 18 U.S.C.

§ 2243(a) or chapter 117 of title 18, United States Code, in which a participant took

active measure(s) to unduly influence the victim to engage in prohibited sexual

conduct and, thus, the voluntariness of the victim’s behavior was compromised.”

USSG § 2A3.2, comment. (backg’d). Panfil contends that § 2A3.2 is the incorrect

guideline because he did not take measures to unduly influence the victim.

4
18 U.S.C. 2243 is titled “Sexual Abuse of a minor or ward.”
5
While § 2A3.4(b)(6) refers to offenses under chapter 117 of title 18, the reference is
not within the base level offenses, but rather in the specific offense characteristics.

10
In § 2A3.2, “victim” is a term of art, defined in Commentary Note 1 to include

either “an individual who . . . had not attained the age of 16 years” or “an undercover

law enforcement officer who represented to a participant that the officer had not

attained the age of 16 years.” USSG § 2A3.2, comment. (n.1). In this case, the victim

was an adult, male, Secret Service Agent, whose voluntariness certainly was not

compromised by Panfil’s chat and email suggestions. Following the facts of this case

to their logical conclusion, § 2A3.2 and the background notes arguably conflict where

the “victim” is an undercover law enforcement officer and the perpetrator does not

actually “unduly influence” the victim.

In United States v. Root, 296 F.3d 1222 (11th Cir. 2002), we addressed the

meaning of “unduly influence” in the context of § 2A3.2(b)(2)(B), which provides for

a two-level increase if “a participant otherwise unduly influenced the victim to

engage in prohibited sexual conduct.” USSG § 2A3.2(b)(2)(B). In Root, we held that

a district court should focus on the offender’s conduct where the “victim” is a law

enforcement officer. Id. at 1234. And in assessing whether the conduct constitutes

undue influence, the district court may look to a variety of factors, including whether

the defendant “displays an abuse of superior knowledge, influence and resources.”

Id.

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While an enhancement under § 2A3.2(b)(2)(B) is not at issue in this case

(because Panfil was not given an enhancement under this section), the district court

could properly have considered Panfil’s conduct, in toto, to find that Panfil unduly

influenced the victim. The district court properly applied § 2A3.2 to compute Panfil’s

sentence. Thus, we find no error in the district court’s application of the Guidelines.

V. CONCLUSION

We hold that 18 U.S.C. § 2422 is not unconstitutionally overbroad or vague

and we also hold that the district court did not err in applying USSG § 2A3.2 to

compute Panfil’s sentence.

AFFIRMED.