U.S. v. Graham

• Decision Date: 01 July 2005
• Docket Number: No. 04-8008.,04-8008.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sylvester J. GRAHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

413 F.3d 1211

UNITED STATES of America, Plaintiff-Appellee, v. Sylvester J. GRAHAM, Defendant-Appellant.

No. 04-8008.

United States Court of Appeals, Tenth Circuit.

July 1, 2005.

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Submitted on the Briefs:^*

Robert R. Rogers, Assistant Federal Public Defender and Raymond P. Moore, Federal Public Defender, Cheyenne, Wyoming, for Defendant-Appellant.

Matthew H. Mead, United States Attorney, David A. Kubichek, Assistant United States Attorney, and Gregory A. Phillips, Assistant United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Before SEYMOUR, LUCERO and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Sylvester J. Graham appeals a 121 month term of imprisonment the district court imposed after he plead guilty to violating 18 U.S.C. § 2423(b) (interstate travel for the purpose of engaging in a sexual act with a person under sixteen years of age).¹ He appeals, arguing the district court misapplied the federal sentencing guidelines and committed clear error in its fact-finding. He also asserts the guidelines are invalid under the Sixth Amendment pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (invalidating Washington's sentencing guidelines under the Sixth Amendment).² Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM.

Background

On May 23, 2003, during an online sting operation conducted by the Wyoming Department of Criminal Investigation (DCI), Graham, then fifty-seven years of age and believing he was conversing in a chat room with the mother of a twelve-year-old girl, agreed to travel from Phoenixville, Pennsylvania, to Cheyenne, Wyoming, to engage in sexual relations with both the mother and her daughter.³ As Graham admitted when he entered his plea of guilty:

After my wife died I was starting to visit some chat rooms online and was into adult chat rooms, had a fetish with chat rooms. I was — I was in there and I met someone, a woman with a child. And after talking for several weeks we agreed that I would come here to have sex with her and her daughter.

(R. Vol. Three at 7.)

The Presentence Investigation Report (PIR), prepared in aid of sentencing, included a prosecutor's statement detailing the offense. According to this statement, the DCI agent involved in the sting operation leading to Graham's arrest posed as the mother of not just one, but two daughters, ages seven and twelve. Because resolution of the issues presented on appeal depends in large part on the factual allegations contained in the prosecutor's statement, we quote it at length:

On May 9, 2003, Special Agent Robert Leasenby, of the Division of Criminal Investigation (DCI) Computer Crime Unit, acting as `ibalissasmom' was in the internet chat room `PRETEN Parents who share [2}:1]' when he was contacted by `master_heart_of_evil.' Identifying himself as `53/m,' `master_heart_of_evil' asked `how old are your little ones' and was told ages 7 and 12. He responded, `that is great, so curious, willing to please.' He laments that `it gets harder to find moms and daughters. It is a little dangerous.' He states that he `actually met two at a single parents group' and `two on here, but that was a while ago' and `before the rooms got crowded.' In response to the question whether he had actually gotten together, he says `yes.' He states that he is `lucky enough to be able to travel most weekends,' not for work but `just for me.' He says that he lives in Pennsylvania, near `Philly.' Then `master_heart_of_evil' gets down to business. He asks `ibalissasmom' `how long have you been active with yours.' He is told about two years with the older but not with the younger. When asked what he prefers, `master_heart_of_evil' says `I don't put a younger limit lol.' He then adds that `I have been with as young as 6. Mom wanted her broken and taken roughly.' He then spoke of `one mom who had an 11 and 13 who were both very experienced,' and adds `that was fun too.' Then comes the solicitation. He asks `have you thought about them being with a man yet.' In response to a question as to whether he has been `first with yng,' `master_heart_of_evil' repeats that he has been with the 6 year old `and with a 9 year old.' Giving advise [sic] on the pain caused to the child, `master_heart_of_evil' declares that `I have found the best way is to hold her legs up against my chest, legs spread so she is open.' In response to the statement that it is `hard to find right guy,' he says `lube her and me.' After providing more graphic techniques, he is asked how young is too young for those techniques. `master_heart_of_evil' answers that `I have seen as young as 2 broken.' He explains that `can only penetrate about 5 inches or so at that age' and says `have to stop at cervix' but adds `well should anyway.' Then he adds that `even at that age they love oral.'

In response to a question as to how he gets the girls `used to the idea,' `master_heart_of_evil' says that `the 6 year old had seen movies' and `she knew what was going to happen.' Returning to his recollection of his experience with the 6-year-old, `master_heart_of_evil' recounted all he had done before penetrating her and stressed again that `mom wanted her taken rough.' Asked why, he says he does not know but recalls that `she kept telling her she was a little slut and getting what she deserved.' He says the 9-year-old was different—the mother had `held her arms and talked to her.' While stating a preference for a gentler approach that will `let the pain ease,' `master_heart_of_evil' adds `but I would just do what the mom wanted.' Then `master_heart_of_evil' offers to rent a nice hotel room, declaring that `all kids love it' and says that `the offer is always open.' Seeking to provide assurance, `master_heart_of_evil' states that `I am not a stalker or anything, just a nice old pervert.' When asked if he is serious or just playing, `master_heart_of_evil' says `no I am serious.' Then he describes how he envisions the evening, with everything leading up to and including sexual intercourse with the daughter. He adds that `if you decide anything on the younger one, it has to be slower' with `more touching and talking.' Presumably professing to know, `master_heart_of_evil' advises that `if she is there watching, she may surprise you and want to do it.'

After more reminiscing about his previously-described encounters, `master_heart_of_evil' advises how best to proceed. He suggests that `ibalissasmom' tell her daughter that `someone is coming to see her as a date.' He offers to let her see him on camera first. He suggests that the daughter sit next to him in the restaurant, `just like a date.' He promises to bring flowers and upon being told she likes bears, he says `ok, a stuffed bear and some flowers.' In response to being told `man you are a gentleman,' `master_heart_of_evil' announces `I love kids.'

He describes a sexual relationship with a daughter now aged 22 years. Then `master_heart_of_evil' inquires as to the name of the Cheyenne airport and asks about nearby hotels. Upon being told the nicest is Little America, he declares `little america it is then.' Upon being asked, he states that he is a support manager for a software company. He promises to `make up any salary you miss.' He suggests looking at `weekend after next then and see what happens.' He says that he will fly from Philly to Denver and then to Cheyenne. He mentions another screen name he uses and says that it has the same picture he had sent to `ibalissasmom' earlier in the conversation. He mentions that `we can probably meet in the lobby since you know what I look like lol.' He promises to reimburse her for getting Friday and Saturday off if she can. He says, `I have a good feeling about this.' So ends the first conversation.

On May 14, 2003, `master_heart_of_evil' again contacts `ibalissasmom' and asks `are you ready for my visit?' He says that `I will have that Friday off so I will get to the hotel earl[y] on Friday.' He then adds that `oh, I am Sly (sylvester).' He declines a ride upon arriving in Cheyenne, saying that he `will get a shuttle to the hotel' as it will be `probably easier to meet you there after I get checked in and all.' He says he will `make the flight reservations tonight. I already have a room at the hotel.' He says that he will have `flowers for alissa' and will `have to find a teddy bear and a small unicorn.' Inquiring into the `little ones name,' he is told `Sarah' and says that she can order what she wants from room service too. He tries to arrange a telephone call to talk to Alissa. He gives his home telephone number and his cell number.

On May 15, 2003, `master_heart_of_evil' contacts `ibalissasmom' again to inform her that `reservations are all made for next week.' He says that he will arrive in Cheyenne about 4:30 on Friday and should get to the hotel around 6 p.m. He says that `this is for you also dear and I will make up any pay that you are missing.' On May 20, 2003, `master_heart_of_evil' confirms that he will arrive on Friday at 4:30 and suggests meeting at the hotel rather than the Cheyenne airport. On May 21, 2003, `master_heart_of_evil' leaves a short message saying that `I am trying to find a nice teddy bear for my date. I will look for you today sometime.'

(R. Vol. Five at 4-6.)

Upon his arrival at the Cheyenne, Wyoming airport, Graham is arrested. During a consensual search of his luggage, authorities discovered two gift bags (one with a flower design, one with a balloon design, each containing a stuffed animal), two bottles of Viagra (an erectile dysfunction medication), a bottle of sexual lubricant, a black suede flogger, and two prosthetic penises. Later, the Phoenixville Borough Police Department searched Graham's computer in Pennsylvania and discovered numerous pornographic images (still and moving) of prepubescent children and infants.

Reasoning that Graham had...