United States v. Robertson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 02-1388

JOHN F. ROBERTSON,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 02-CR-2-N)

James C. Murphy, Assistant United States Attorney (John W. Suthers, United
States Attorney, Linda A. McMahan and Jennifer Mardosz, Assistant United
States Attorneys, with him on the briefs), Denver, Colorado, for Plaintiff-
Appellant.

Raymond P. Moore, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, and John T. Carlson with him on the brief), Denver, Colorado,
for Defendant-Appellee.

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

McCONNELL, Circuit Judge.
 Some of the great virtues of the internet – its flexibility, universal

accessibility, and privacy – also make it an especially potent venue for sexual

predators to communicate with minors regarding illicit sexual encounters. The

anonymity of these communications, in particular, serves both to ensnare the child

and to thwart the protective efforts of law enforcement. Accordingly, at the

instruction of Congress, the Sentencing Commission has imposed a two-point

enhancement when the internet is used either to induce a minor to engage in

prohibited sexual conduct or to facilitate travel for that purpose. To counteract

the enforcement difficulties, child protective agencies turn the feature of

anonymity against the would-be predators by setting up sting operations designed

both to apprehend violators and to create a credible deterrent to predatory use of

the internet.

This case involves interpretation of one of the guidelines that enhance

sentences for child sexual abuse offenses involving use of a computer. The

guideline, by its terms, reaches broadly to cover any instance in which a

“computer or an Internet-access device” is used to “facilitate transportation or

travel, by the victim or a participant, to engage in prohibited sexual conduct.”

U.S.S.G § 2A3.2(b)(3) (the “Guideline”). Although the Guideline unquestionably

applies to direct communications with minors under the age of 16, with adults

with supervisory control over the minors, and with undercover agents posing as

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minors as part of a sting operation, the district court held that it does not apply to

communications with undercover agents posing as adults with supervisory control

over fictitious minor victims. Because we find this interpretation inconsistent

with the language and purpose of the Guideline, we reverse.

FACTS

The facts in this case are undisputed. The following is a summary of the

stipulation of facts from the plea agreement.

In early summer, 2001, Defendant John F. Robertson contacted an internet

site advertising “fantasy tours,” which is apparently a euphemism for trips

involving paid sexual encounters. Unbeknownst to Mr. Robertson, this was a

sting operation. He contacted the site by e-mail and requested further

information. An undercover officer from the Sheriff’s Department of Pueblo

County, Colorado, sent Mr. Robertson a questionnaire to determine his

preferences. Mr. Robertson completed the questionnaire that day, indicating his

interest in “hot teen boys” and stating his age preference as “[t]he younger the

better – late teens is preferable.” Later, he narrowed his request to white boys

between the ages of thirteen and fifteen, preferably with long hair. In graphic

language not necessary to quote here, Mr. Robertson stated his desire to engage in

anal and oral sex with the boys; he also proposed the use of illegal drugs “to help

get the party started.” Plea Agreement & Statement of Facts Relevant to

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Sentencing (“Plea Agreement”) at 4, App. 13.

During the course of communications between Mr. Robertson and the

undercover officer, the undercover officer accidentally sent a message from his

e-mail account at the Colorado Crimes Against Children Task Force. Mr.

Robertson, a former intelligence analyst for the Federal Bureau of Investigation,

e-mailed in reply: “Why did I get a response from the Colorado Crimes Against

Children Task Force detailing available tours? This sounds like some kind of

sting operation. I await your reply – JR.” Plea Agreement at 3, App. 12. The

undercover officer replied that he used the Colorado Crimes Against Children

address as part of his cover. He explained that it was his practice to “sit on

several high level committees in regards to child welfare so [he] can keep [his]

finger on the pulse of what the do-gooders are doing and in what direction they

are moving.” Id. Mr. Robertson answered: “Thanks for clearing everything

up. . . . [B]ear with me. I don’t want to spend several years living in ‘public

housing’ if you get my drift.” Id. He then proceeded to discuss the details of his

upcoming “fantasy tour.”

Over the course of many months, Mr. Robertson and the undercover officer

used e-mail and the internet to coordinate the details of Mr. Robertson’s fantasy

tour, including date, itinerary, price, and mode of payment, as well as the

identification of two fictitious boys, “Michael” and “Andrew,” supposedly aged

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thirteen and fourteen, who met Mr. Robertson’s specifications. Mr. Robertson

paid a down payment in advance of the trip.

On December 27, 2001, Mr. Robertson flew from his home in Pennsylvania

to Colorado Springs, Colorado, where he met the undercover officer, confirmed

his identity, and tendered the balance of the price for the “tour.” He brought two

Sony Walkman portable CD players as Christmas gifts for “Michael” and

“Andrew.” He was arrested on the spot.

In federal district court, Mr. Robertson was charged with knowingly

traveling in interstate commerce for the purpose of engaging in a sexual act with a

person under eighteen years of age, in violation of 18 U.S.C. § 2423(b). He pled

guilty. In the plea agreement, Mr. Robertson and the government agreed the

United States Sentencing Guidelines established a base level of twenty-one for

Mr. Robertson’s offense. See U.S.S.G. § 2A3.2(a)(2). The government, however,

contended that Mr. Robertson’s use of a computer should increase his offense

level by two under § 2A3.2(b)(3) of the Guidelines. Mr. Robertson disputed this

adjustment.

The district court rejected the government’s argument and ruled that the

two-point enhancement was not applicable:

I’ve also refused to place any upward adjustment for use
of a computer, even though it is plain to me that the
defendant did use a computer and that he did use the
computer to persuade, induce, entice or coerce this

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 fictitious victim into engaging in this prohibited sexual
conduct.

Tr. 31, App. 95. In a written Memorandum of Sentencing Hearing and Report of

Statement of Reasons, at 2, App. 101, the district court explained: “This case

appears to be one which falls outside the guideline’s plain language defining who

is a ‘victim,’ because, simply stated, the undercover officer did not represent to

defendant that he (the officer) had not attained the age of sixteen years.”

After making certain adjustments, described below, the district court

sentenced Mr. Robertson to two years in prison, with three years of supervised

release, which is the top of the applicable guideline range. The court explained:

I think his crime is a serious crime. He came here
intending to victimize two young boys. They were
fictitious, but they weren’t known by him to be
fictitious. The language in his e-mails concerning those
young boys is nothing short of brutal, so he deserves a
sentence at the top of this guideline range.

Tr. 31, App. 95.

The district court granted two downward adjustments. One of those – a

three-point adjustment for acceptance of responsibility, is not disputed. A second

three-point downward departure was made in response to what the district court

called an “apparent drafting lacuna in the guidelines,” which would have the

effect of sentencing defendants who have no sexual contact with a child more

severely than those who do. Sentencing Mem. at 3, App. 102. The district court

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departed downward “to a level at which defendant would have been sentenced if

he had made sexual contact with his fictitious victims.” Id. The government and

Mr. Robertson agree that this downward departure required as a condition

precedent the conclusion that the computer-use enhancement did not apply. The

effect of reversing the district court with regard to the application of the

computer-use enhancement, therefore, would be to increase Mr. Robertson’s total

offense level by five points, nearly doubling his prison sentence.

The government appeals the district court’s ruling that the enhancement for

use of a computer in committing the crime was not applicable. Exercising

jurisdiction under 18 U.S.C. § 3742(b)(2), we reverse.

DISCUSSION

The district court’s interpretation of a sentencing guideline is a question of

law that we review de novo. See United States v. Smith, 133 F.3d 737, 744 (10th

Cir. 1997); United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir. 1996).

“We interpret the Sentencing Guidelines according to accepted rules of statutory

construction.” United States v. Reaves, 253 F.3d 1201, 1203 (10th Cir. 2001). In

interpreting a guideline, we look at the language in the guideline itself, as well as

at the “interpretative and explanatory commentary to the guideline” provided by

the Sentencing Commission. United States v. Frazier, 53 F.3d 1105, 1112 (10th

Cir. 1995); see also 18 U.S.C. § 3553(a)(5). “[C]ommentary in the Guidelines

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Manual that interprets or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

The guideline at issue in this case mandates a two-level enhancement “[i]f a

computer or an Internet-access device was used to (A) persuade, induce, entice, or

coerce the victim to engage in prohibited sexual conduct; or (B) facilitate

transportation or travel, by the victim or a participant, to engage in prohibited

sexual conduct.” U.S.S.G § 2A3.2(b)(3). Mr. Robertson argues that the

application notes accompanying the Guideline preclude its application to cases in

which there was neither an actual minor victim nor an undercover officer posing

as one. The government argues that both subsection (A) and subsection (B) apply

in this case. Because we conclude that subsection (B) applies, we will not

consider applicability of subsection (A).

I. The Rationale for Enhanced Sentencing in Cases Involving
Computers

The enhancement at issue here was added in response to the Child

Protection and Sexual Predator Punishment Act of 1998, Pub. L. No. 105-314,

112 Stat. 2974, which addressed the problem that cyberspace provides an

increasingly common and effective medium by which would-be sexual predators

can contact minors, or persons in control of minors, to arrange for sexual

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encounters. See generally United States v. Reaves, 253 F.3d 1201, 1203-05 (10th

Cir. 2001) (discussing the dangers of the internet in the context of another

computer-based enhancement). Children commonly make wide use of the

internet, often with little parental supervision, and sometimes with a dangerous

degree of naivete. Behind the anonymous veil of the internet, predators can

locate young people in teen chat rooms or other child-friendly sites, assume false

identities, establish relationships, deploy pornographic images and other sexual

enticements, and arrange for meetings – all shielded from the eyes of parents,

police, or other protectors. As Representative Hutchinson explained shortly

before the passage of the 1998 act:

[B]y the year 2002, 45 million children will use the
Internet to talk with friends, do homework assignments
and explore the vast world around them. Computer
technologies and Internet innovations have unveiled a
world of information that is literally just a mouse click
away.
Unfortunately, individuals who seek children to
sexually exploit and victimize them are also a mouse
click away. Sex offenders who prey on children no
longer need to hang out in parks or malls or school
yards. Instead, they can roam from web site to chat
room seeking victims with little risk of detection.
The anonymous nature of the online relationship
allows users to misrepresent their age, gender or
interests. Children are rarely supervised while they are
on the Internet. Unfortunately, this is exactly what
cyber-predators look for.

144 Cong. Rec. H10,571 (daily ed. Oct. 12, 1998). See also 144 Cong. Rec.

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S10,522 (daily ed. Sept. 17, 1998) (statement of Senator Hatch) (“[W]e must also

be vigilant in seeking to ensure that the Internet is not perverted into a hunting

ground for pedophiles and other sexual predators, and a drive-through library and

post office for purveyors of child pornography. . . . One step that we can take is to

ensure strong penalties for those who use the Internet for these horrible

purposes.”).

Besides facilitating direct seduction of children, the internet also allows

panderers to advertise their wares anonymously in a national or even international

market, making it much easier for them to find willing customers. Moreover,

because these customers may come from afar and visit only briefly, it is more

difficult for law enforcement to track them down than it is to track down those

attracted by more traditional come-ons. Cf. H.R. Rep. No. 104-90, at 3-4 (1995),

reprinted in 1995 U.S.C.C.A.N. 759, 760-61, quoted in Reaves, 253 F.3d at 1205

(“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.”)

To counter these evils, the 1998 act (among other things) directed the

Sentencing Commission to impose harsher penalties on sexual criminals who used

computers. Pub. L. No. 105-314, § 503, 112 Stat. at 2980-81. That directive

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ultimately resulted in the addition of several similar enhancements, including the

one at issue here. See U.S.S.G. app. C, amend. 592, at 31-48 (Supp. 2002). In

interpreting its instructions from Congress, the Sentencing Commission concluded

that the new enhancements were to “ensure that persons who misrepresent

themselves to a minor, or use computers or Internet-access devices to locate and

gain access to a minor, are severely punished.” Id. at 48.

Law enforcement has responded to the new threat of cyber-predators by

setting up sting operations and enforcing the increased penalties now available

under the Guidelines. If a would-be predator cannot know whether the person

with whom he communicates is an undercover agent rather than a susceptible

minor or a pimp, and if the penalties for using the computer medium are

especially severe, the hope is that pedaphilic predators will cease to find

cyberspace such a safe and attractive hunting ground.

II. The Guideline

In this case, Mr. Robertson used the internet and e-mail to find and make

arrangements with an undercover officer he believed to have access or control

over young boys to travel from Pennsylvania to Colorado to meet two (fictitious)

boys, aged thirteen and fourteen, for sex and drug use. This conduct falls within

the plain language of subsection (b)(1)(B) of Guideline 2A3.2, which imposes a

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two-level sentence enhancement “[i]f a computer or an Internet-access device was

used to . . . (B) facilitate transportation or travel, by the victim or a participant, to

engage in prohibited sexual conduct.” U.S.S.G § 2A3.2(b)(3).

This subsection applies when four conditions are met: (1) a computer or an

Internet-access device must be used, (2) to facilitate transportation or travel, (3)

by either a victim or a participant, (4) for the purpose of engaging in prohibited

sexual conduct. The district court expressly found, and Mr. Robertson does not

dispute, that a computer was used in the course of the offense. No one disputes

that the intended conduct falls within the category of “prohibited sexual conduct.”

According to Application Note 1, “prohibited sexual conduct” includes “any

sexual activity for which a person can be charged with a criminal offense.”

U.S.S.G. § 2A3.1, cmt. n.1 (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr.

Robertson pled guilty to knowingly traveling in interstate commerce for the

purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. §

2423(b), so his conduct clearly falls within this definition.

At the sentencing hearing and in his brief, Mr. Robertson disputed that he

used the computer to “facilitate” transportation or travel. Application Note 5

makes clear that the computer use to which the Guideline applies does not include

communications with a third party, such as use of an airline’s internet site to

purchase airline tickets. Mr. Robertson is therefore correct that his use of the

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internet to obtain airline tickets is irrelevant. But the plea agreement stipulates

that Mr. Robertson and the undercover agent “communicated via e-mail over the

next several months coordinating the details of the tour and Defendant’s travel

plans.” Plea Agreement at 4, App. 13. 1 The communication covered, at the very

least, the date, time, and place of Mr. Robertson’s arrival in Colorado; the price

and method of payment; and plans regarding sexual activities and drug use.

Moreover, it is undisputed that the entire trip was made possible by Mr.

Robertson’s use of the internet to search for, and locate, a “fantasy tour” to his

liking.

Because the district court found that the enhancement did not apply in the

absence of an actual victim, it did not reach the question of whether Mr.

Robertson’s computer use facilitated his travel. However, in a companion case to

1
In his brief, Mr. Robertson states:
He and the undercover officer resumed their e-mail
exchange. They did not, contrary to the claim made in
the government’s opening brief, “coordinate[] the details
of . . . [Mr. Robertson’s] travel plans.” (As will become
clear later, the question whether Mr. Robertson arranged
or “facilitated” his travel to Colorado has implications
on his eligibility for the use-of-a-computer
enhancement.)
Appellee’s Answer Br., at 4 (brackets and ellipses in original; citation omitted).
The government’s statement, however, is a direct quotation from the factual
stipulation in the plea agreement, to which Mr. Robertson agreed, and which he
may not now attempt to challenge. To the extent Mr. Robertson’s argument
regarding “facilitation” is based on this attempted repudiation of the facts
stipulated in the plea agreement, it is without merit.

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this one, involving almost identical facts and arising from the same sting

operation, that question was answered affirmatively by the district court and

briefed on appeal to this Court. See United States v. McGraw, No. 02-1407, slip

op. at 4-5 (10th Cir. Dec. 2, 2003) (published). Our opinion in McGraw holds

that the defendant did use a computer to “facilitate” his travel, because the

computer made it substantially easier for him to find and book a “fantasy tour,” as

well as to negotiate the details of the trip. See id., slip op. at 7. That analysis

applies equally to Mr. Robertson.

The final condition set forth in U.S.S.G § 2A3.2(b)(3)(B) is that the travel

facilitated by use of the computer or internet must be by “the victim or a

participant.” In interpreting this language, the district court placed great weight

on Application Note 1, which defines “victim” as “(A) an individual who, except

as provided in subdivision (B), had not attained the age of 16 years; or (B) an

undercover law enforcement officer who represented to a participant that the

officer had not attained the age of 16 years.” In this case, there was no actual

minor victim, and the undercover law enforcement officer posed not as a minor

but as a person with control of sexually pliant young boys. The court reasoned

that the Guideline therefore does not apply:

Subsection B [of the application note definition of
“victim”] appears to be an attempt to address a sting
operation. Subsection A appears to be an attempt to
address a situation where there is an actual victim not

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 having attained the age of 16 years.
The situation which is completely left out is a
situation where, as here, the undercover officer doesn’t
represent that the officer had not attained the 16 years,
but, rather, represents that the officer has control of
fictitious victims who have not attained the age of 16.
That situation is simply not addressed by the
language of the Sentencing Commission. And therefore,
I am satisfied the 2-level increase does not apply in this
situation.

Tr. 26, App. 90.

The flaw in this analysis is that the only use of the term “victim” in

subsection (B) of the Guideline is the reference to travel by “the victim or a

participant.” U.S.S.G § 2A3.2(b)(3)(B) (emphasis added). Thus, under the plain

language of the Guideline, it does not matter whether there was a “victim”

(meaning either an actual minor victim or an undercover officer posing as a

minor); the Guideline applies if the computer or internet is used to facilitate travel

by a “participant.” Application Note 1 defines “participant” as follows:

A “participant” is a person who is criminally responsible
for the commission of the offense, but need not have
been convicted. A person who is not criminally
responsible for the commission of the offense (e.g., an
undercover law enforcement officer) is not a participant.

U.S.S.G § 3B1.1, cmt. n.1 (cross-referenced in U.S.S.G § 2A3.2(b)(3), cmt. n.1).

Under this definition, Mr. Robertson was a “participant,” and because it was his

travel that was “facilitated” – not the victim’s – the Guideline applies,

notwithstanding the fact that there was no “victim.”

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 All four conditions set forth for application of the Guideline are therefore

present. A computer or internet-access device was used to facilitate travel by a

participant for prohibited purposes. Moreover, while it is not necessary to look

beyond the plain language, we note that this interpretation is consistent with the

purposes of the provision. The Guideline was intentionally crafted to include

sting operations within its scope; that is an effective way to deter would-be

predators from using the internet for these purposes. There is no reason to limit

application of the Guideline to just one kind of sting operation, one in which the

undercover officer poses as a child. That may be a sensible restriction on the

scope of subsection (A), where the gravamen of the enhancement is use of the

computer to entice a child, but it bears no logical relation to subsection (B),

where the gravamen is use of the computer to facilitate travel by the participant

himself. For that purpose, it matters not at all whether the undercover officer

making the arrangements on the other end is a virtual victim or a virtual pimp.

The evil is the same.

III. The Application Notes

Although Mr. Robertson argues – incorrectly, as we have already explained

– that the plain language of the Guideline supports his position, his principal

reliance is on the interplay of two application notes. See Summary of Argument,

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Appellee’s Answer Br. 4-5. Application Note 5 includes a definition of “use of

computer or internet-access device,” and Application Note 1 includes a definition

of “victim.” Neither application note, read independently, supports Mr.

Robertson’s interpretation of the Guideline; each is addressed to a question other

than that posed by this case. But when the definition of “victim” from

Application Note 1 is read into the definition of computer “use” in Application

Note 5, Mr. Robertson argues that the result supports his interpretation of the

Guideline.

Application Note 5 is addressed to use of the internet for such collateral

purposes as making airline ticket reservations. It states:

Subsection (b)(3) is intended to apply only to the use of
a computer or an Internet-access device to communicate
directly with the victim or with a person who exercises
custody, care, or supervisory control of the victim.
Accordingly, the enhancement would not apply to the
use of a computer or an Internet-access device to obtain
airline tickets for the victim from an airline’s Internet
site.

U.S.S.G. § 2A3.2, cmt. n.5. This note is not addressed to the question whether

there must be an actual victim. Rather, it draws a line between “direct”

communications setting up the illegal sexual encounter, and collateral

communications with third parties having no immediate connection to sexual

predation. The application note thus focuses application of the Guideline on

communications in which the computer is an especially insidious tool for sexual

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predation, and not on indirect communications, such as use of the internet to make

airline reservations, which fall outside the rationale for enhanced sentences under

the Guideline.

Indeed, the major thrust of Application Note 5 supports application of the

Guideline to this case. It might be thought that the evil addressed by the

Guideline is that young people are particularly susceptible to being lured via

computer, perhaps because of their naivete regarding false identities (a problem

addressed separately in subsection (b)(2) of the Guideline) or because of a

“child’s general fascination with computer technology.” Reaves, 253 F.3d at

1205. This might suggest that communications with adults fall outside the

Guideline’s intended scope. That suggestion, however, is refuted by Application

Note 5, which makes clear that the Guideline applies to communications with

minors and to communications with the adults who control access to them.

Nor does Application Note 1 suggest that the Guideline applies only when

there is an actual minor victim. On the contrary, the note defines a “victim” as

“(A) an individual who . . . had not attained the age of 16 years; or (B) an

undercover law enforcement officer who represented to a participant that the

officer had not attained the age of 16 years.” U.S.S.G. § 2A3.2, cmt. n.1. As the

Commission explained, the purpose of this definition is to “ensure that offenders

who are apprehended in an undercover operation are appropriately punished.” See

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U.S.S.G. app. C, amend. 592, at 49 (Supp. 2002). Because Application Note 1

makes clear the Commission’s intent to apply the sentencing enhancement in sting

operations as well as in cases involving actual victims, it supports application of

the Guideline to this case.

Although Mr. Robertson does not make his argument so explicitly, it

appears to be based on the theory that the two application notes should be

combined. Application Note 5 refers to communications with a person in custody

or control of “the victim,” and Application Note 1 defines “victim” as either an

actual minor or an uncover officer posing as a minor. Putting the two application

notes together, the Guideline can be read as restricted to cases involving “the use

of a computer or an Internet-access device to communicate directly with [(A) an

individual who . . . had not attained the age of 16 years; or (B) an undercover law

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

attained the age of 16 years] or with a person who exercises custody, care, or

supervisory control of [(A) an individual who . . . had not attained the age of 16

years; or (B) an undercover law enforcement officer who represented to a

participant that the officer had not attained the age of 16 years].” The practical

effect is to exclude sting operations where the undercover agent poses as a

panderer rather than as a child.

The argument is clever, but not persuasive. The legally operative language

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is found in the Guideline itself, which as we have explained, supports application

to this case. The application notes are also binding, but they are binding in the

sense of being authoritative interpretations of the Guideline. Reading Guideline

§ 2A3.2(b)(3)(B) in light of the application notes results in the same conclusion

that we reach reading the Guideline alone. Only if the application notes are read

independently of the Guideline, without regard to the issues they address or any

conceivable purpose they might serve, do they even arguably produce a different

result. We decline to import a definition from one application note into a separate

application note, and thereby restrict the Guideline in a way unsupported by the

Guideline’s own language or by the language or purpose of either note read

separately.

Not only does Mr. Robertson’s reading strain linguistic plausibility, but it

also corresponds to no conceivable statutory (or Guideline) purpose. Under his

interpretation, the Guideline applies when the perpetrator communicates with an

actual minor victim, with an undercover officer posing as an actual minor victim,

or with an actual panderer, but does not apply when an undercover officer poses

as a panderer. Mr. Robertson offers no reason for this distinction in light of the

purposes of the Guideline. One could imagine limiting the Guideline to cases

involving an actual victim; but that interpretation is foreclosed by Application

Note 1. One could similarly imagine limiting the Guideline to communications

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with minors rather than adults; but that interpretation is foreclosed by Application

Note 5. There is no reason to distinguish between two different varieties of sting

operation, in which the role of the computer and the reprehensibility of the

conduct is essentially the same. 2 Deterring would-be predators from taking

advantage of internet-based “fantasy tour” offerings like the one in this case falls

squarely within the purpose of the Guideline.

In conclusion, to read the Guideline as applying when the undercover

officer poses as a child but not when he poses as a panderer is supported by

neither the language of the Guideline, which draws no such distinction, nor the

2
An early version of the legislation authorizing the Guideline’s
enhancement criminalized certain activity directed toward “a person who had
been ‘represented’ to be a minor, even if that person was, in fact, an adult.” 144
Cong. Rec. S10,521 (daily ed. Sept. 17, 1998) (statement of Senator Leahy). The
reasons for dropping that language are significant:
The evident purpose was to make clear that the targets
of sting operations are not relieved of criminal liability
merely because their intended victim turned out to be an
undercover agent and not a child. The new “sting”
provisions addressed a problem that simply does not
currently exist: no court has ever endorsed an
impossibility defense along the lines anticipated by the
House bill. The creation of special “sting” provisions in
this one area could lend credence to impossibility
defenses raised in other sting and undercover situations.
Id. Thus, Congress understood the preexisting law to allow sting operations of all
kinds, and did not want to encourage defendants to argue otherwise on the
principle of inclusio unius, exclusio alterius. Absent a clear manifestation of the
Commission’s intent to distinguish among sting operations, we agree with the
Congress that such arguments should not be countenanced.

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relevant application notes when read separately. In light of their actual purposes,

each of the application notes supports application of the Guideline in this case.

Thus, we conclude the district court erred when it held that § 2A3.2(b)(3)(B) of

the Sentencing Guidelines does not apply to this case because there was no

“victim.”

CONCLUSION

For the reason stated, we REVERSE Mr. Robertson’s sentence and remand

to the district court for resentencing.

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United States v. Robertson, No. 02-1388

Brorby, Senior Circuit Judge, dissenting.

I respectfully dissent.

I disagree with the majority’s conclusion Mr. Robertson used “a computer

or Internet-access device ... to facilitate transportation or travel, by the victim or a

participant, to engage in prohibited sexual conduct.” U.S.S.G. §2A3.2(b)(3)(B).

As the majority explains, subpart B of the guideline, on its face, appears to

apply to Mr. Robertson’s conduct. The majority believes “it is not necessary to

look beyond the plain language” of the guideline. I disagree. According to the

Supreme Court, we are additionally bound by the Sentencing Commission’s

interpretations or explanations in the commentary to the guideline unless the

commentary “violates the Constitution or a federal statute, or is inconsistent with,

or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508

U.S. 36, 38 (1993). Commentary may “explain[] the guidelines and provide[]

concrete guidance as to how even unambiguous guidelines are to be applied in

practice.” See id. at 44 (emphasis added). Within the ambit of interpreting and

explaining a guideline, commentary may “demonstrate that the purview of the

guideline is narrower than that which may be discerned from a literal reading of

the guideline.” United States v. Frazier, 53 F.3d 1105, 1113 (10th Cir. 1995).
 In this case, the commentary does permissibly narrow the application of the

guideline. Commentary note 5 explains the guideline “is intended to apply only to

the use of a computer or an Internet-access device to communicate directly with

the victim or with a person who exercises custody, care, or supervisory control of

the victim.” U.S.S.G. §2A3.2, cmt. n.5. Further guidance comes from

commentary note 1, which defines a “victim” as “(A) an individual who ... had

not attained the age of 16 years; or (B) an undercover law enforcement officer

who represented to a participant that the officer had not attained the age of 16

years.” U.S.S.G. §2A3.2, cmt. n.1.

In this case it is undisputed Mr. Robertson did not communicate directly

with a child under sixteen or an undercover officer posing as a child under

sixteen. The majority nevertheless applies subpart B of the guideline concluding

Mr. Robertson communicated with a person who exercised custody, care, or

supervisory control of the victim. This conclusion ignores the term “victim” in

the commentary. In this case, the undercover officer did not have custody, care or

supervisory control over a child under sixteen. Furthermore, there was no

undercover officer posing as a child under the age of sixteen. Consequently,

subpart B of the guideline (as informed by the commentary) does not apply to Mr.

Robertson’s conduct.

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 The majority believes that neither commentary note 1 nor commentary note

5, when read independently, precludes application of the guideline to Mr.

Robertson’s conduct. Thus, the majority declines to read the two commentary

notes together. This method of interpretation has the effect of making the

commentary’s definition of “victim” applicable to the guideline itself but not to

the accompanying commentary. I know of no precedent requiring us to view

individual commentary notes in isolation. To me it seems far more reasonable to

apply the commentary’s definition of “victim” whenever the term appears in both

the guideline and the commentary.

If, however, comment 1’s definition of “victim” is not incorporated into

comment 5, the term “victim” should retain its common meaning of a real child

victim, rather than an undercover officer posing as a child. Cf. U.S.S.G. App. C,

amdt. 592, at 49 (Supp. 2002) (explaining the commentary’s definition of

“victim” is intended to “clarify[] that ‘victim’ includes an undercover police

officer who represents to the perpetrator of the offense that the officer was under

the age of 16 years”). Under the common definition of “victim,” the guideline is

equally inapplicable because this case did not involve communication with an

individual exercising custody, care, or supervisory control over a real child

victim.

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 The majority avoids this result by restricting the breadth of commentary

note 5. According to the majority, commentary note 5 “is not addressed to the

question whether there must be an actual victim.” Instead, the majority focuses

on the illustration in commentary note 5. It states: “Accordingly, the

enhancement would not apply to the use of a computer or an Internet-access

device to obtain airline tickets for the victim from an airline’s Internet site.”

U.S.S.G. §2A3.2, cmt. n.5. Based on the illustration, the majority asserts the

commentary is intended to “draw[] a line between ‘direct’ communications ...

with third parties having no immediate connection to sexual predation.” Under

this theory, the note allows enhancement of Mr. Robertson’s sentence because his

communication with the undercover officer had an immediate connection to

sexual predation.

I believe the majority’s interpretation ignores the relevant language in

commentary note 5. The commentary plainly limits “use” to “the use of a

computer or an Internet-access device to communicate directly with the victim or

with a person who exercises custody, care, or supervisory control of the victim.”

Id. The commentary’s illustration concerning the online purchase of airline

tickets should not usurp the plain language of the first sentence of note 5.

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 This case is particularly troubling because the majority seems primarily

concerned that reading the two commentary notes together has the “practical

effect [of] exclud[ing] sting operations where the undercover agent poses as a

panderer rather than as a child.” The majority sees “no conceivable statutory (or

Guideline) purpose” for excluding the type of sting in this case from enhancement

under the guideline. Instead, the majority focuses on Congress’ and the

Commission’s general desire to punish sex offenders who use the internet to

ensnare child victims, using this general desire as justification for applying the

enhancement in this case.

While I have no doubt Congress and the Commission intended stiff

punishment for sex offenders who attempt to prey on children via the Internet, I

do not think this congressional intent gives the court license to rewrite the

guideline and its accompanying commentary. Rather, “‘courts should strive to

apply the sentencing guidelines as written, giving full force and effect to the

Sentencing Commission’s interpretive commentary and application notes.’”

United States v. Sedoma, 332 F.3d 20, 27 (1st Cir. 2003) (quoting Unites States v.

Zapa, 1 F.3d 46, 47 (1st Cir. 1993). “Under our constitutional framework, federal

courts do not sit as councils of revision, empowered to rewrite legislation [or

Sentencing Commission Guidelines] in accord with their own conceptions of

-5-
prudent public policy.” United States v. Rutherford, 442 U.S. 544, 555 (1979).

I am particularly unwilling to ignore the plain language of the guideline and

its commentary, in this case where the legislative history and the Sentencing

Commission history at most evidence a general intent to punish offenders caught

in sting operations. See, e.g., U.S.S.G. App. C, amdt. 592, at 48 (“[L]egislative

history ... indicates congressional intent to ensure that persons who misrepresent

themselves to a minor, or use computers or Internet-access devices to locate and

gain access to a minor, are severely punished.”). Nowhere in the history is there

evidence Congress or the Commission specifically intended the enhancement to

apply when an undercover agent poses as a panderer. Furthermore, the

Sentencing Commission could have defined “victim” in such a way as to allow the

enhancement to encompass sting operations like the one used here. For example,

the Commission elsewhere defined “minor victim” as “(A) an undercover law

enforcement officer who represented to the defendant that the officer was a

minor; or (B) any minor the officer represented to the defendant would be

involved in the prohibited sexual conduct.” U.S.S.G. §4B1.5 cmt. n.1. The

Commission knew how to make the guideline applicable to such an operation but

chose not to. Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here

Congress includes particular language in one section of a statute but omits it in

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another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” (Quotation

marks and citations omitted.)); United States v. Blackwell, 323 F.3d 1256, 1260-

61 (10th Cir. 2003). Consequently, while there might be public policy arguments

for punishing Mr. Robertson harshly, I would not depart from the plain language

of the guideline and accompanying commentary.

Of course, the majority believes its opinion embraces the plain meaning of

the guideline and commentary and that the reading espoused by Mr. Robertson (as

well as myself and the district judge) “strain[s] linguistic plausibility.” While I

firmly believe my interpretation is the most natural reading of the commentary, in

the event the guideline and commentary are actually ambiguous, the rule of lenity

should apply. “The rule of lenity requires courts to interpret ambiguous statutes,

including the Sentencing Guidelines, in favor of criminal defendants.” United

States v. Gay, 240 F.3d 1222, 1232 (10th Cir. 2001) (citing Ladner v. United

States, 358 U.S. 169, 178 (1958) and United States v. Blake, 59 F.3d 138, 140

(10th Cir. 1995)). If the rule of lenity were applied, Mr. Robertson’s sentence

would not be enhanced under subpart B of the guideline.

Having concluded subpart B of the guideline does not apply, I turn briefly

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to subpart A. It allows a two-level enhancement if Mr. Robertson used his

computer to “persuade, induce, entice, or coerce the victim to engage in

prohibited sexual conduct.” U.S.S.G. §2A3.2(b)(3)(A). In this case, Mr.

Robertson did not use his computer to persuade, induce, entice or coerce a

“victim,” i.e., a child or an undercover officer posing as a child. See U.S.S.G.

§2A3.2, cmt. n.1. Instead, Mr. Robertson used his computer to communicate with

a law enforcement officer posing as someone who had access to children. No

“victim” was ever involved. Because Mr. Robertson did not use his computer to

persuade, induce, entice, or coerce a “victim,” as defined by the commentary, I

conclude the two-level enhancement under U.S.S.G. §2A3.2(b)(3)(A) is not

applicable.

For the foregoing reasons, I cannot agree with the majority and would

instead affirm the district court’s opinion.

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