U.S. v. Miranda
| Decision Date | 29 October 2003 |
| Docket Number | No. 02-14239.,02-14239. |
| Citation | 348 F.3d 1322 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Ferrys Harvey MIRANDA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Phillip DiRosa, Ft. Lauderdale, FL, Anne R. Schultz, Miami, FL, for Plaintiff-Appellant.
Brenda G. Bryn, Fed. Pub. Def., Fort Lauderdale, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HULL, MARCUS and STAHL*, Circuit Judges.
After a trial, the government appeals Defendant Ferrys Harvey Miranda's 15-month sentence imposed for his conviction for using a computer to attempt to persuade a minor to engage in criminal sexual conduct, in violation of 18 U.S.C. § 2422(b). On appeal, the government argues that the district court erred: (1) in applying U.S.S.G. § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), instead of the harsher penalties provided in U.S.S.G. § 2A3.2 (); and (2) in failing to assess a two-level specific offense enhancement for Miranda's misrepresentation of his age under U.S.S.G. § 2A3.2(b)(2)(A)(i) or § 2A3.4(b)(4)(A).1 After review and oral argument, we vacate Miranda's sentence and remand to the district court for resentencing.
Because the appropriateness of Defendant Miranda's sentence depends on whether the district court applied the proper sentencing guideline, we first review the guidelines applicable to convictions under 18 U.S.C. § 2422(b). We then review the evidence presented at trial against Miranda and why we conclude that the district court should have sentenced Miranda for attempted sexual abuse under § 2A3.2, not attempted sexual contact under § 2A3.4.
Miranda was convicted under 18 U.S.C. § 2422(b). A person violates 18 U.S.C. § 2422(b) when, using the mail or other means of interstate commerce, he "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." 18 U.S.C. § 2422(b).
Appendix A of the United States Sentencing Commission Guidelines Manual instructs that the appropriate starting point for a conviction under 18 U.S.C. § 2422(b) is U.S.S.G. § 2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct). The commentary to § 2G1.1 provides, however, that cases that do not involve prostitution, like this case, are to be sentenced under one of four other guidelines: § 2G2.1 (); § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse); § 2A3.2 (); or § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact). U.S.S.G. § 2G1.1, cmt. background.
Where a sentencing court is required to choose among multiple guideline sections, the court must "use the guideline most appropriate for the offense conduct charged in the count of which the defendant was convicted." U.S.S.G. app. A, introductory cmt. Both parties agree that neither § 2G2.1 () nor § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) is applicable in this case.2 The issue thus becomes whether to apply § 2A3.2 (Attempted Sexual Abuse) or § 2A3.4 (Attempted Sexual Contact) of the Sentencing Guidelines.3
Section 2A3.2 applies to offenses "involving the criminal sexual abuse of an individual who had not attained the age of 16 years." U.S.S.G. § 2A3.2, cmt. background (emphasis added). Section 2A3.2 refers to 18 U.S.C. § 2243(a) as the statutory provision covered.4 U.S.S.G. § 2A3.2, cmt. Furthermore, § 2A3.2(c)(1) directs courts to 18 U.S.C. § 2241 or § 2242 in order to determine the definition of criminal sexual abuse or attempt to commit criminal sexual abuse. U.S.S.G. § 2A3.1(c)(1). According to 18 U.S.C. §§ 2241, 2242, and 2243, the term "sexual abuse" includes offenses that involve a "sexual act." See 18 U.S.C. § 2241, et seq. In turn, the term "sexual act" is defined in 18 U.S.C. § 2246 as:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(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). Therefore, if Miranda's conduct consisted of an attempted sexual act, as defined above, with either of his intended victims, § 2A3.2 would apply.
Section 2A3.4 applies to offenses constituting "sexual contact not amounting to criminal sexual abuse." U.S.S.G. § 2A3.4, cmt. background (emphasis added). Like § 2A3.2, section 2A3.4 refers to statutory provisions. Specifically, § 2A3.4 defines a defendant's base offense level by reference to 18 U.S.C. § 2241(a) or (b) or 18 U.S.C. § 2242. The terms found in §§ 2241 and 2242 are defined in 18 U.S.C. § 2246. Therefore, we look to § 2246 to determine what constitutes sexual contact. The term "sexual contact" is defined in § 2246 as
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).
As stated above, § 2A3.4 narrows "sexual contact" to "sexual contact not amounting to criminal sexual abuse," and thereby excludes any sexual conduct that constitutes a "sexual act." U.S.S.G. § 2A3.4, cmt. background. Therefore, if Miranda's conduct did not constitute an attempted sexual act with either of his intended victims, but merely consisted of an attempted sexual contact, § 2A3.4 would apply.
Thus, the decision to sentence Miranda under § 2A3.2 or § 2A3.4 rests on this determination: if Miranda's conduct consisted of an attempted "sexual act" with his intended victims, then the district court should have applied § 2A3.2. If, however, Miranda's conduct consisted of attempted "sexual conduct" with his intended victims, the district court correctly applied § 2A3.4. As the following evidence readily demonstrates, Miranda's conduct clearly consisted of an attempted sexual act with his intended victims, and, therefore, the district court should have applied § 2A3.2.
In October 2001, Detective Brad Rosh of the Miami-Dade School Board Police Department and Special Agent Kevin Levy of the United States Secret Service were assigned to the Secret Service Electronic Crimes of Violence Task Force. Detective Rosh and Special Agent Levy entered Internet chat rooms posing as minors and waited for contact from adult sexual predators.
On October 29, 2001, Detective Rosh, under the username "claudia13x," entered a Yahoo! Internet chat room. Claudia13x was a 12-year-old female from Miami. Special Agent Levy entered the same chat room under the username "latinaprincezz13" — a 14-year-old female from Miami.
On October 29, 2001, while latinaprincezz13 and claudia13x were signed onto the chat room, Defendant Miranda signed on under the username "maleusafla," a 35-year-old male from Miami. Miranda quickly initiated a conversation with latinaprincezz13.
At first, Defendant Miranda stated that he would not have sex with latinaprincezz13 because she was too young. However, as the online conversation progressed, Miranda directly asked latinaprincezz13, "Do you want to have sex?," to which she responded "ok." The following conversation also occurred between Miranda and latinaprincezz13, wherein the two discussed having sex and Miranda asked if latinaprincezz13 was "prepare[d] to do those kinda things":
Miranda: Tell me what you have in mind about goig out with a guy. What do you want to do?5
latinaprincezz13: not sure
latinaprincezz13: never really went out with a guy b4
Miranda: Just tell me.
latinaprincezz13: what would we normally do?
Miranda: What you do? Where would you go?
latinaprincezz13: anywhere i guess
latinaprincezz13: just so bored of being alone at home
Miranda: No be more specific.
latinaprincezz13: give me choices and i will tell you
Miranda: Movie, mall, ???? I leave the question marks for you.
latinaprincezz13: i have been to the movies and the mall but what are the qwestion marks for tell me?
Miranda: That is for you to think. What do you think a boy and girl alone would do?
latinaprincezz13: i don't know like what should they do
Miranda: Yo do not have any idea. What do boy and girls alone do in a movie.
latinaprincezz13: u mean the actors or the people who go to the movies Miranda: The actors latinaprincezz13: i saw pictures once but that was a while ago
Miranda: OK. you do not what to say it.
Miranda: Usualy in movies they have s.......x.
latinaprincezz13: sex
latinaprincezz13: i know
latinaprincezz13: never done that b4
Miranda: Are you prepare to do those kind of things.
latinaprincezz13: don't know if i would be good never done them before
. . .
latinaprincezz13:...
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