F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 15 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 00-8026
LINDSEY RUSSELL REAVES,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 99-CR-159-B)
Submitted on the briefs: *
Maynard D. Grant of Grant & Newcomb, Seattle, Washington, for Defendant-
Appellant.
David D. Freudenthal, United States Attorney, and John A. Masterson, Assistant
United States Attorney, District of Wyoming, for Plaintiff-Appellee.
_________________________
Before LUCERO and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
**
Honorable Wesley E. Brown, United States Senior District Judge for the
District of Kansas, sitting by designation.
_________________________
McKAY, Circuit Judge.
_________________________
This appeal requires us to define the scope of United States Sentencing
Guideline § 2G2.1(b)(3) (1998), which increases by two a defendant’s offense
level for certain child pornography crimes “[i]f a computer was used to solicit
participation by or with a minor in sexually explicit conduct for the purpose of
producing sexually explicit material.” 1
Defendant pleaded guilty to five counts of production of child pornography
in violation of 18 U.S.C. § 2251(a); and one count each of interstate
transportation, distribution, and possession, of child pornography in violation of
1
We employ the November 1, 1998 Guidelines Manual because it was the
version in effect on the date Defendant was sentenced. See U.S. Sentencing
Guidelines Manual § 1B1.11(a) (“The court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced.”). We note that a new manual
took effect beginning November 1, 2000. This current manual includes a revised
version of § 2G2.1(b)(3), which now reads in relevant part:
If, for the purpose of producing sexually explicit material, the
offense involved . . . (B) the use of a computer or an Internet-access
device to (i) persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage in sexually explicit conduct, or to otherwise
solicit participation with a minor in such conduct; or (ii) solicit
participation with a minor in sexually explicit conduct, increase by 2
levels.
U.S. Sentencing Guidelines Manual § 2G2.1(b)(3) (2000).
-2-
18 U.S.C. §§ 2252A(a)(1) and (b)(1), (a)(2)(B) and (b)(1), and (a)(5)(B) and
(b)(2), respectively. The district court relied on § 2G2.1(b)(3) to increase by two
Defendant’s offense level despite Defendant’s objection that the enhancement did
not apply. Defendant appeals the court’s decision. We have jurisdiction under 18
U.S.C. § 3742.
There is no dispute regarding the underlying facts. Defendant concedes
that “he used his computer to show sexually explicit imagery to his victims both
before and after their participation in sexually explicit conduct.” Aplt. Br., at 43.
He obtained some of these images from various internet sources. See, e.g , Aplt.
App. vol. II, at 287. Moreover, Defendant expected that showing these
pornographic images to his victims would entice them to engage in illicit sexual
conduct with each other or with him. See, e.g. , id. at 316. It is also uncontested
that Defendant and one of his victims participated in at least one online chat with
another pedophile where sexual topics were discussed and that Defendant had that
victim listen to and then verbally record sexually explicit e-mail greetings prior to
his participation in producing child pornography. See, e.g. , id. at 316, 323. In
short, Defendant used his computer to expose his victims to various sexual
stimulants to lure them into sexual activities and pornography production. On the
other hand, the government concedes that it has no evidence that Defendant
-3-
directly asked a victim to participate in child pornography via the computer, be it
by e-mail or in chat rooms. See Appellee Br., at 47.
Based on the foregoing evidence, the district court ruled that Defendant did
use his computer to “solicit” the minors’ participation pursuant to § 2G2.1(b)(3).
The court reasoned that the computer played an integral part in a solicitation
scheme presumably designed to accustom the minors to child pornography and
encourage the sexual conduct depicted therein. Aplt. App. vol. I, at 270. While
the court did not expressly define “solicit” for purposes of § 2G2.1(b)(3), its
holding obviously rests on a relatively broad definition of that term. On appeal,
Defendant argues that the court erred because “solicit” means “to directly ask or
request,” not “to entice, lure, or encourage” as the court implied.
We review for clear error the district court’s factual findings and give due
deference to the court’s application of the guidelines to the facts. See United
States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997), cert. denied , 523 U.S.
1079 (1998). However, we review de novo the threshold legal question of how to
interpret the language of § 2G2.1(b)(3). See id.
We interpret the Sentencing Guidelines according to accepted rules of
statutory construction. See United States v. Tagore , 158 F.3d 1124, 1128 (10th
Cir. 1998) (interpreting guidelines as if they were a statute or court rule). Thus,
“[w]e consider not only the bare meaning of the word [“solicit”] but also its
-4-
placement and purpose in the statutory scheme.” Bailey v. United States , 516
U.S. 137, 145 (1995); see also United States v. Gay , 240 F.3d 1222, 1231 (10th
Cir. 2001) (“The guidelines, as criminal statutes, are given their fair meaning in
accord with the manifest intent of the lawmakers.” (internal quotations omitted)),
petition for cert. filed , (U.S. May 14, 2001) (No. 00-10088). While we apply the
rule of strict construction to criminal statutes, and by extension to the Guidelines,
that does not mean the Guidelines must be given their narrowest possible
meaning. Rather, the rule of strict construction “‘is satisfied if the words are
given their fair meaning in accord with the manifest intent of the lawmakers.’”
United States v. Moore , 423 U.S. 122, 145 (1975) (quoting United States v.
Brown , 333 U.S. 18, 25-26 (1948)). With these standards in mind, we now turn to
the language of § 2G2.1(b)(3).
Standing alone, “solicit” could mean a number of things. For example,
Webster’s defines the term variously as: “ 3: to make petition to . . . [, especially]
to approach with a request or plea”; “ 4: to move to action : serve as an urge or
incentive to”; “ 5: to strongly urge”; “ 6: to entice or lead astray by or as if by
specious arguments : lure on and esp. into evil”; “ 9a(1): to have an effect on (a
person or thing) through some natural influence or property”; and “ 10: to serve as
a temptation or lure to : ATTRACT.” Webster’s Third New International
Dictionary 2169 (1986). The Oxford English Dictionary defines the term in
-5-
similarly varied ways: “ 2.a. To entreat or petition (a person) for, or to do,
something; to urge, importune; to ask earnestly or persistently”; “ 3. To incite or
move, to induce or persuade, to some act of lawlessness or insubordination”; “ 4.a.
To incite, draw on, allure, by some specious representation or argument”; “ [4]b.
To court or beg the favour of (a woman), esp . with immoral intention”; “ [4]c. To
make immoral attempts upon”; and finally, “ 5. Of things: . . . b. To tempt, entice,
allure; to attract or draw by enticement, etc.” Oxford English Dictionary (2d ed.
1989) (online version, http://dictionary.oed.com) ; cf. Wisconsin Dep’t of Revenue
v. William Wrigley, Jr., Co. , 505 U.S. 214, 223 (1992) (“‘Solicitation’ commonly
understood, means ‘[a]sking’ for, or ‘enticing’ to, something.” (quoting Black’s
Law Dictionary 1393 (6th ed. 1990)).
Unfortunately, there are no application notes for § 2G2.1(b)(3) to inform us
which definition of “solicit” the Sentencing Commission intended to employ.
However, the Commission’s intent is nonetheless apparent once we consider the
congressional directives that motivated § 2G2.1(b)(3)’s creation. The Sentencing
Commission enacted § 2G2.1(b)(3) pursuant to the Sex Crimes Against Children
Prevention Act of 1995 (the Act), Pub. L. No. 104-71, 1995 U.S.C.C.A.N. (109
Stat.) 774. The Act directed the Sentencing Commission to increase the base
offense levels for violations of 18 U.S.C. § 2251 (production of child
pornography), § 2252 (interstate transportation of child pornography), and
-6-
§ 2423(a) (transportation of minors for pornography purposes). In addition to
these general offense level increases, the Act instructed the Sentencing
Commission to “increase the base offense level by at least 2 levels for an offense
committed under section 2251(c)(1)(A) or 2252(a) of title 18, United States Code,
if a computer was used to transmit the notice or advertisement to the intended
recipient or to transport or ship the visual depiction .” Pub. L. No. 104-71, sec. 3,
1995 U.S.C.C.A.N. (109 Stat.) 774 (emphasis added). The Sentencing
Commission complied with this mandate by adding Sentencing Guideline
§ 2G2.2(b)(5) (enhancement for computer-assisted transmission of child
pornography or child pornography advertisements) and Sentencing Guideline
§ 2G2.4(b)(3) (enhancement for computer-assisted possession of child
pornography), which both became effective November 1, 1996. See U.S.
Sentencing Guidelines Manual app. C, amdt. 537, at 373 (1997).
In addition to these congressionally prescribed enhancements, the
Commission enacted on its own initiative the guideline at issue in this case. See
id. While Congress did not specifically instruct the Commission to enact it,
Congress’s concerns about computers and child pornography expressed in the
Act’s legislative history clearly provided the foundation upon which the
Commission built § 2G2.1(b)(3). In explaining the Act, the House Committee on
the Judiciary stated:
-7-
Perhaps the most significant feature of this bill is the direction
to the United States Sentencing Commission to provide for an
enhancement to the base offense levels in its guidelines in cases
where the offender uses a computer to traffick in child pornography,
or to distribute an advertisement seeking to buy or sell child
pornography. Distributing child pornography through computers is
particularly harmful because it can reach an almost limitless audience.
Because of its wide dissemination and instantaneous transmission,
computer-assisted trafficking is also more difficult for law
enforcement officials to investigate and prosecute. Additionally, the
increasing use of computers to transmit child pornography
substantially increases the likelihood that this material will be viewed
by, and thus harm, children. Finally, the Committee notes with
particular concern the fact that pedophiles may use a child’s
fascination with computer technology as a lure to drag children into
sexual relationships. In light of these significant harms, it is essential
that those who are caught and convicted for this conduct be punished
severely.
H.R. Rep. No. 104-90, at 3-4 (1995), reprinted in 1995 U.S.C.C.A.N. 759,
760-61 (emphasis added). Significantly, Congress’s concerns were not limited to a
pedophile’s ability to use a computer to directly contact increased numbers of
children via the internet. Instead, Congress emphasized a broader concern with the
ability to exploit a child’s general fascination with computer technology. Thus, it
appears Congress was not merely interested in punishing specific ways of using a
computer to lure young victims. Rather, Congress wanted to punish more
generally the fact that the perpetrator used a computer at all.
Turning back to the case at hand, the issue before us is, at bottom, whether
the language, “if a computer was used to solicit participation,” solely means “if a
computer was used to directly request participation,” or can also mean “if a
-8-
computer was used to lure or entice participation.” Considering the varied
meanings of “solicit” in light of manifest congressional intent convinces us that
the latter interpretation is correct. Limiting “solicit” in § 2G2.1(b)(3) to “direct
requests” via e-mail or the internet solely penalizes how a pedophile exploits a
child’s fascination with computers rather than if a pedophile does so—an
unacceptable result given Congress’s broad concerns.
Defendant’s conduct in the instant case easily warrants the two-level
increase for using a computer to solicit his victims’ participation in sexual
conduct. Defendant acquired child pornography on the internet, then showed those
images to his victims on his computer in order to entice and lure the children into
sexual relationships for the purpose of producing sexually explicit materials.
Unfortunately, this form of solicitation is not uncommon. Congress has found that
child pornography is often used as part of a method of seducing other
children into sexual activity; a child who is reluctant to engage in
sexual activity with an adult, or to pose for sexually explicit
photographs, can sometimes be convinced by viewing depictions of
other children “having fun” participating in such activity.
Child Pornography Protection Act of 1996, Pub. L. No. 104-208, Div. A, Title I,
§ 101(a), at § 121 subsection 1, 1996 U.S.C.C.A.N. (110 Stat.) 3009, 3009-26
reprinted in 18 U.S.C. § 2251 note (“Congressional Findings”).
In conclusion, we note that our holding comports with the only other
opinion to have addressed this issue. In United States v. Brown , 237 F.3d 625 (6th
-9-
Cir.), cert. denied , 69 U.S.L.W. 3729 (2001), the defendant allowed his victims
access to his computer where they saw other children in sexual situations. Id. at
628. Based on those facts, the Sixth Circuit concluded that “[i]n using the
computer to desensitize his victims to deviant sexual activity, he was using it to
solicit participation in that activity. This use of the computer fits well within the
conduct that was contemplated by Congress, as well as within the wording of
U.S.S.G. § 2G2.1(b)(3).” Id. at 629.
We AFFIRM the district court.
-10-
United States v. Reaves
Court: Court of Appeals for the Tenth Circuit
Date filed: 2001-06-15
Citations: 253 F.3d 1201
Copy Citations