United States of America, Plaintiff-Appellee/Cross-Appellant, v. Stanley Howard Sims, Defendant-Appellant/Cross-Appellee., US.FEDERAL.ca10 (2005)

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United States of America, Plaintiff-Appellee/Cross-Appellant, v. Stanley Howard Sims, Defendant-Appellant/Cross-Appellee., US.FEDERAL.ca10 (2005)

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the briefs), Albuquerque, NM, for Appellee.

Before EBEL, BALDOCK, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

This case first arose in an Internet chat room where Stanley Howard Sims ("Defendant" or "Sims"), using the screenname "Nats565," began a sexually explicit conversation with "sweetthingforyou16"?a screenname Sims believed belonged to a 16-year-old girl named Sue and a 12-year-old named Kate. In fact, "sweetthingforyou16" was a middle-aged man in Springfield, Missouri, who had assumed the Internet profile of a teenage dancer named Sue as a gag and who represented himself as both Sue and Kate to Sims. For months, Sims and "sweetthingforyou16" exchanged Internet communications of a graphic sexual nature, with Sims sending sexually explicit images of himself and of other children to the girls. The FBI became involved, and Sims was ultimately arrested at a roller-skating rink in Missouri, where he had traveled to meet Sue and Kate.

After a jury trial, Sims was convicted of three counts. Count One involved attempting to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b). Count Two involved traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). Count Three involved transporting child pornography by interactive computer system in violation of 18 U.S.C. § 2252(a)(1). The district court entered a judgment of acquittal on Count Four, which involved receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Sims was sentenced to 37 months imprisonment and ordered to pay a $10,000 fine.

On appeal, Sims raises several issues including Fourth Amendment claims relating to the investigation of his conduct, First Amendment and other challenges to his convictions, and several sentencing arguments. The Government also cross-appeals aspects of Sims's sentence, including the district court's application of an acceptance of responsibility adjustment and the decision to grant a nine-level aberrant behavior departure.

After briefing in this case, Sims was permitted to file a supplemental brief with an argument that his sentence was constitutionally defective under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After oral argument, this court permitted further briefing from both sides relating to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Sims's conviction but REVERSE his sentence and REMAND for resentencing.

BACKGROUND

At the time of the events in question, Sims was employed as an engineer at the National Transuranic Waste Program in Carlsbad, New Mexico. He had no prior criminal history. We review the facts only to the extent necessary to decide the issues presented in this appeal.

In September 1999, Sims, using the screen name "Nats565," began using an Internet chat room to converse with "sweetthingforyou16." As far as Sims knew, this screen name belonged to a 16-year-old...

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