U.S. v. Aldrich

• Decision Date: 27 April 2009
• Docket Number: No. 08-15556.,08-15556.
• Citation: 566 F.3d 976
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack ALDRICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

566 F.3d 976

UNITED STATES of America, Plaintiff-Appellee, v. Jack ALDRICH, Defendant-Appellant.

No. 08-15556 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 27, 2009.

David Lee Brannon, Fed. Pub. Defender, West Palm Beach, FL, Kathleen M. Williams, Fed. Pub. Defender, Miami, FL, for Defendant-Appellant.

Dawn Bowen, Anne R. Schultz, Asst. U.S. Atty., Kathleen M. Salyer, Carol E.

Herman, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT and WILSON, Circuit Judges.

BARKETT, Circuit Judge:

Jack Aldrich appeals his 168-month sentence for using a computer to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). Aldrich argues that the district court erred in applying a two-level enhancement at sentencing under U.S.S.G. § 2G2.1(b)(2)(A) based on a finding that Aldrich's masturbating for a minor female¹ in front of his web camera constituted a "sexual contact." Aldrich also raises a due process argument based on the alleged inaccuracy of the statement in his presentence investigation report ("PSI") that Aldrich was masturbating "in front of" a minor when in fact he was in front of his web camera.²

Under U.S.S.G. § 2G2.1(b)(2)(A), a two-level increase applies to a defendant's base offense level if the base offense involves "the commission of a sexual act or sexual contact." A "sexual contact" is defined as "the intentional touching ... 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) (emphasis added).

The district court applied the two-level enhancement based on its finding that the plain meaning of the phrase "any person," as used in the definition of "sexual contact," unambiguously referred to the touching of all people, including Aldrich himself, and that therefore, contrary to Aldrich's position, masturbation constituted "sexual contact" for purposes of the enhancement. The district court also rejected Aldrich's argument—made for the first time at sentencing—that "any person" could not include oneself, because it was not possible for Aldrich to "harass" himself, one of the six potential motives of § 2246(3). Aldrich argued that an individual must be able to perform all six prohibited acts under the statute in order to violate it. Finally, the district court rejected Aldrich's argument that the rule of lenity should apply in his favor, because the statute was ambiguous and there was no controlling precedent. United States v. Santos, ___ U.S. ___, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008). Aldrich reiterates his arguments on appeal, and we address each below.

The Supreme Court has held that the "starting point" of statutory interpretation is "the language of the statute itself." Randall v. Loftsgaarden, 478 U.S. 647, 656, 106 S.Ct. 3143, 92 L.Ed.2d 525 (1986). The "cardinal canon" of statutory interpretation is that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Finally, statutes should be construed so that "no clause, sentence, or word shall be superfluous, void, or insignificant." United States v. Ballinger, 395 F.3d 1218, 1236 (11th Cir.2005) (quotations and citations omitted).

Based on our review of the record and the relevant law, we conclude as the district court did that the plain meaning of "sexual contact" under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating. The statute's operative phrase "any person" applies to all persons, including Aldrich himself. We come to this conclusion based on our observation that § 2246(2)(D) defines a "sexual act" as 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." (emphases added). We believe that § 2246(2)(D) clearly indicates that Congress used the phrase "any person" when it meant to include the offender himself, as well as another individual, and the phrase "another person" when it meant to...