United States v. Robertson, 02-1388 (December 2, 2003)

(Raymond P. Moore, FPD, Denver, Colorado)

The guidelines enhanced sentences for child sexual abuse offenses involving use of a computer. The district court found that §2A3.2(b)(3) 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 minors as part of a sting operation. But the district court held the guideline does not apply to communications with undercover agents posing as adults with supervisory control over fictitious minor victims. The circuit reversed.

HELD: (1) The district court's interpretation of a guideline is a question of law reviewed de novo. The guidelines are interpreted according to accepted rules of statutory construction. The court looks at the language in the guideline as well as interpretative and explanatory commentary. Commentary that interprets or explains a guideline is authorative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.

(2) The rational for enhanced sentencing in cases involving computers is because cyberspace provides an increasingly common and effective medium but which would-be sexual predators can contact minors, or persons of control of minors, to a range for sexual encounters. The internet also allows banders to advertise their wears anonymously in a national or even international market. It is difficult for law enforcement to track them down. To counter these evils, the 1998 Act directed the Sentencing Commission to impose harsher penalties on sexual criminals who used computers. In interpreting its instructions from Congress, the Commission concluded that the new enhancements were to insure 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. 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, age 13 and 14, for sex and drug use. This conduct falls within the plain language of subsection (b)(1)(B) of §2A3.2. The subsection applies when four conditions are met: a computer or internet access device must be used, to facilitate transportation or travel, by either a victim or participant, for the purpose of engaging in prohibited sexual conduct. 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 cite to purchase airline tickets. But the plea agreement stipulates that Robertson and the undercover agent communicated via e-mail over the next several months coordinating the details of the tour and travel plans. Because the district court found the enhancement did not apply in the absence of an actual victim, it did not reach the question of whether Robertson's computer use facilitated his travel. However, in a companion case this question was answered affirmatively by the district court. The court's 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.

(3) The final condition set forth in the guideline is for travel facilitated by use of a computer or internet must be by the victim or participant. In interpreting this language, the district court placed great weight on application note 1, which defines "victim" as an individual who has not obtained 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. 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 district court therefore held the guideline does not apply. But the guideline refers to travel by the victim or a participant. 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 such. The guideline applies if the computer or internet is used to facilitate travel by a participant. Application note 1 defines a participant as 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 is not a participant. Under this definition, Robertson was a participant and because it was his travel that was facilitated, not the victim's, the guideline applies, not withstanding the fact that there was no victim.

(4) While it is not necessary to look beyond the plain language of the guideline, this interpretation is consistent with the purposes of the provision. The guideline was intentionally crafted to include sting operations. 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.

(5) Application note 5 includes a definition of use of a computer or internet access device, and application note 1 includes a definition of victim. According to note 5, the enhancement would not apply to the use of a computer or internet access device to obtain airline tickets for the victim from an airline's internet cite. Subsection (b)(3) applies only to the use of a computer or internet - access device to communicate directly with the victim or with the person who exercises care or supervisory control of the victim. Application note 1 makes clear the Commission's intent to apply the sentencing enchantment in sting operations as well as in cases involving actual victims.

(6) Robertson argues that the two application notes should be combined. 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 undercover officer posing as a minor. Combining the two would exclude sting operations where the undercover agent poses as a panderer rather than as a child. Robertson offers no reason to distinguish these roles in light of the purposes of the guideline.

(Dissent by Brorby).

(Richard J. Banta, Denver, Colorado)

McGraw pleaded guilty to traveling in interstate commerce for the purpose of engaging in a sexual act with a minor. That plea agreement provided for a two level increase because McGraw used a computer or internet access device to facilitate his transportation or travel to engage in prohibited sexual conduct. The court imposed the two level increase under §2A3.2(b)(3)(B).

HELD: (1) The interpretation of a guideline is reviewed de novo. It would be inconsistent with Congress' broad intent to let offenders evade the enhancement simply by working out the logistics of an internet arranged tryst off-line. The court read the term "facilitate" broadly. McGraw's use of the internet made it easier for him to go on his fantasy tour.

United States v. Virgen-Chavarin, 02-8052, 02-8076 (December 3, 2003)

(Ronald G. Pretty, Cheyenne, Wyoming)

An indictment charged Chavarin and others with conspiracy, distribution of methamphetamine and aiding and abetting the distribution. Chavarin pleaded guilty to each count after plea negotiations failed. At sentencing, Chavarin's base offense level was 36. The court denied the Safety Valve reduction and denied a four-level downward adjustment for mitigating role in offense. The court did award three levels for timely acceptance of responsibility.

HELD: (1) The district court found Chavarin was not entitled to the Safety Valve reduction because he did not provide all information that he had concerning the offence that were part of the same course of conduct or common scheme or plan. The court reviews application of the guidelines Safety Valve provisions for clear error. The district court's application is fact specific and dependent on credibility determination.

(2) Both the statute, 18 U.S.C. § 3553(f) and the guidelines set forth the qualifications for the Safety Valve reduction. The defendant has to prove by a preponderance that he satisfies each criterion. Here the criteria under §5C1.2(a)(5) is the requirement that the defendant truthfully provides the government with all information and evidence concerning the offense of conviction. The district court determines the quality and completeness of the information for the Safety Valve reduction.

(3) Prior to sentencing Chavarin had failed to provide the government with all the information in evidence concerning his offenses, but just before the hearing began, Chavarin filed an affidavit. The government was not aware that he had done so until the sentencing hearing concluded. The district court found that

Chavarin failed to satisfy the statute and guideline because he had failed to provide any useful information in his affidavit about co-conspirators.

(4) The district court found that Chavarin was not entitled to a four-level downward adjustment for minimal participation, because he was involved in the delivery of significant amounts of cash and methamphetamine. Review is for clear error. The defendant has the burden of establishing by a preponderance of the evidence an entitlement to a reduction. The district court's finding was not clearly erroneous.

(5) Under the guidelines, accuracy is paramount. The probation officer is charged with assisting the court in arriving at a fair sentence. A probation officer must conduct a presentence investigation and report the results to the court. The parties may object. The probation officer may revise the PSR as appropriate. A judge has the ability to listen to a probation officer's recommendation without being improperly influenced. A Rule 32 violation does not automatically require vacation of sentence. A sentence will be vacated only if the defendant has suffered prejudice. To establish prejudice, the defendant must show that the PSR contained factual inaccuracies, and a successful objection to the factual inaccuracies in the PSR would have resulted in a shorter sentence. The probation officer did not impermissibly advocate for the prosecution. Chavarin also claims the government lobbied the probation officer. This claim was rejected as was the claim that the government denied the probation officer the right to make copies of all the investigative reports.

(4) The district court found Delgado's testimony to be credible. A district court's determination of witness credibility is reviewed for clear error. The evidence presented at the sentencing hearing corroborates Delgado's testimony.

(5) The government cross appeals with regard to the three-level adjustment for acceptance of responsibility. The court applied the guidelines in effect on November 1, 2001, on the date Chavarin was sentenced. The PROTECT ACT amended the acceptance of responsibility adjustment. Prior to the amendment, the defendant was entitled to a two-level adjustment if he clearly demonstrated acceptance of responsibility for his offense, and an additional one-level adjustment if the district court found he timely notified authorities of his intention to plead guilty. Under § 401(g), a defendant is only entitled to the additional one level adjustment for timely acceptance of responsibility upon formal motion by the government at the time of sentencing.

(6) The Rules of Criminal Procedure permit a defendant to object to drug quantities that he believes are not attributable to him. Chavarin did not frivolously contest or falsely deny relevant conduct when he simply required the government to bear its burden of proof. The court found the record supports the district court's finding of entitlement.

Herrera and others were charged with conspiracy, possession with intent to distribute methamphetamine and illegal reentry of a previously deported alien. Herrera pleaded guilty to each count. The court found his base offense level was 36, and adjusted that downward by three levels for acceptance of responsibility. Both Herrera and the government have appealed the sentence. Herrera is a co-defendant of Chavarin. The district court's finding that Herrera was not entitled to a minimal or minor participant adjustment was not clearly erroneous.

HELD: (1) The court will not resolve an ineffective assistance of counsel claim on direct appeal when the claim has not been raised before the district court. The only exception is when the record is sufficient or when the claim simply does not merit further factual inquiry.

(2) To prevail on ineffective assistance of counsel, the defendant must show counsel's performance was deficient and counsel's deficient performance prejudiced the defense. Whether the defendant was prejudiced by counsel's failure to request a §3B1.2 adjustment depends on whether the district court would have granted the request. But here, trial counsel did request minimal or minor role in the offenses and the district court denied their request.

(3) The district court established Herrera's base offense level at 36, subtracting three levels to 33. View is for plain error. When adjusting a defendant's base offense level, a district court must make a finding that the requirements for the adjustment have been satisfied. Although a finding for an adjustment need not be particularized, a finding is necessary because without it, the circuit would be left to speculate as to whether the district court applied the correct legal standard. The district court did not indicate why it had adjusted Herrera's base offense level. A district court is not required to make fact findings when adjustments under the guidelines are involved. It is not clear why the district court granted the acceptance of responsibility adjustment and the circuit could not engage in meaningful appellate review so the court remanded.

This is another companion case to the Chavarin case.

HELD: (1) Section 2D1.1(b)(1) provides for enhancement for possession of a dangerous weapon. Review is for clear error. In a conspiracy case, the government is not required to prove that the defendant personally possessed the firearm but may attribute the weapons possessed by co-defendants if the possession of weapons was known to the defendant or reasonably foreseeable to him. When the government carries its burden, then the defendant has the burden of proving that it is clearly improbable the weapon was connected with the offense. At sentencing, Topete failed to introduce any evidence that possession of the gun by co-conspirators was not connected with the drug offenses.

(5) The court reviews a challenge to the district court's drug quantity findings for clear error. In the case of jointly undertaking criminal activity, a defendant is responsible for all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. The government must prove drug quantities at sentencing by a preponderance of the evidence.

Garcia filed a state habeas petition one day before expiration of the grace period established by the AEDPA. The magistrate judge reasoned that because Garcia filed his state habeas petition on the last day of the one-year federal grace period, he had but one day after the New Mexico Supreme Court denied his certiorari petition to file his federal habeas petition. Because it was late by five days, it was time barred.

HELD: (1) On appeal from dismissal of a federal habeas petition, the court reviews a district court's finding of facts for clear error and conclusions of law de novo.

(2) Under the Federal Mailbox Rule, a pro se prisoner's cause of action is considered filed when the prisoner delivers the pleading to prison officials for mailing. State procedural law must govern when determining whether a state petition is properly filed. The federal mailbox rule announced in Houston v. Lack, does not apply to s§ 2244(d)(2), for purposes of determining when the tolling period for a properly filed state petition begins.

(3) Garcia urges that the court adopt a notice "notice rule", to hold that a state habeas petition is pending until the petitioner or counsel receives notice of its denial by the state court. But § 2244(d)(2), unambiguously states that the federal limitations period is tolled only during the time a properly filed state application for collateral review is pending in state court.

(4) The one year federal limitations period in § 2244 is not jurisdiction and is subject to equitable tolling in rare and exceptional circumstances.

[The order and judgment dated September 22, 2003 was ordered published]

(David J. Phillips, FPD, Wichita, Kansas)

Andrews pleaded guilty with robbing a federally insured credit union in Wichita, Kansas. In sentencing, Andrews, the district court departed downward based on exceptional community support and aberrant behavior, the government appealed and the circuit reversed for resentencing.

HELD: (1) The standard of review has changed. After Koon, the court applied a unitary abuse of discretion standard. This change with the enactment of the PROTECT Act. This case was pending before this circuit on the date of the PROTECT Act, and the court would apply new appellate standards on its review. One of the new requirements of the PROTECT Act is that the district court state its reasons for imposing a particular sentence with specificity.

(2) Community support or community ties is a discouraged factor that can be relied on if it is present to an unusual degree. The circuit ruled that the defendant's support in the community was not extraordinary. The facts in the case did not support a departure, especially when compared with the facts in other cases.