U.S. v. Holt
| Decision Date | 05 December 2007 |
| Docket Number | No. 06-30597.,06-30597. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bart Linden HOLT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cynthia K. Smith, Smith Jasper, P.C., Missoula, MT, for the defendant-appellant.
Eric B. Wolff and Marcia Hurd, Assistant United States Attorneys, Billings, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-05-00101-RFC.
Before: WILLIAM C. CANBY, JR., SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.
Bart Linden Holt appeals his sentence following his guilty plea conviction for coercing and enticing a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's sentence.
On December 7, 2004, as part of an undercover operation, Federal Bureau of Investigation Special Agent Daniel Vierthaler posed as a thirteen-year-old girl in an Internet chat room. Holt, a then forty-five-year-old podiatrist, contacted Vierthaler through the Internet chat room, misrepresented himself as a nineteen-year-old college student, and engaged Vierthaler's online persona in sexually explicit conversations. Over the next six months, Holt continued to contact Vierthaler, often discussing the young age of Vierthaler's online persona, Holt's desire to have sexual intercourse with Vierthaler's online persona, and the fact that Holt would be criminally liable if he engaged in sexual intercourse with a minor.
On June 21, 2005, more than six months after his first contact with Vierthaler, Holt revealed his true age to Vierthaler, and on July 12, 2005, Holt revealed his true identity. On two separate occasions, on July 26 and 27, 2005, Holt transmitted to Vierthaler webcam footage of himself masturbating to the point of ejaculation. Throughout July of 2005, Holt made arrangements for a sexual encounter with Vierthaler in Billings, Montana. On August 1, 2005, Holt traveled from Missoula to Billings to have sexual intercourse with Vierthaler. After Holt arrived at the meet site, he was approached by law enforcement. He attempted to flee but was apprehended.
A subsequent search of Holt's computers uncovered images of child pornography that he had downloaded from the Internet, including images of the sexual penetration of very young children. Holt later admitted to engaging in other similar conversations with a girl in Great Falls, also using his webcam to transmit sexually explicit images of himself to her.
On August 19, 2005, a federal grand jury indicted Holt. On July 13, 2006, Holt pleaded guilty to coercing and enticing a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
The presentence report ("PSR") prepared in accordance with Holt's guilty plea calculated the base offense level for his coercion and enticement violation at 24 and applied two enhancements, a two-level enhancement for misrepresentation of identity pursuant to U.S.S.G. § 2G1.3(b)(2)(A) and a two-level enhancement for use of a computer pursuant to U.S.S.G. § 2G1.3(b)(3)(A), to reach an adjusted offense level of 28. The PSR calculated the base offense level for Holt's possession of child pornography violation at 18, with five enhancements, including a two-level enhancement for minors under the age of twelve pursuant to U.S.S.G. § 2G2.2(b)(2), a four-level enhancement for sadistic or masochistic conduct pursuant to U.S.S.G. § 2G2.2(b)(4), and a two-level enhancement for vulnerable victim pursuant to U.S.S.G. § 3A1.1(b), making the adjusted level for this offense 33. Holt received a three-level deduction for his early acceptance of responsibility and timely notification of plea, making Holt's total offense level 31 and his final guideline range 121 to 151 months.
On November 2, 2006, Holt appeared for sentencing and objected to the advisory guideline calculation on two grounds. First, Holt argued that the district court improperly applied a two-level enhancement for knowing misrepresentation of identity pursuant to U.S.S.G. § 2G1.3(b)(2)(A). Holt admitted that he initially misidentified himself as a nineteen-year-old college student but contended that, because he revealed his true name and age before sending Vierthaler webcam footage of his masturbation and before traveling to Billings to meet with Vierthaler, he had not misrepresented his identity in order to coerce or entice a minor to engage in sexual activity. The district court overruled this objection, finding that Holt initiated the online conversations in December of 2004 and did not reveal his true age until after he had engaged in six months of "grooming what he thought was a 13-year old minor."
Holt's second objection was to the vulnerable victim adjustment contained in U.S.S.G. § 3A1.1(b). Holt argued that the district court would be double counting if it applied the four-level enhancement for the sadistic or masochistic nature of some of the images and the two-level enhancement for vulnerable victim based on the small size of the victims and the pain they must have experienced due to the sexual penetration. The district court overruled Holt's objection, supporting its decision with the young age of the children, our holding in United States v. Wright, 373 F.3d 935 (9th Cir.2004), and Holt's occupation as a doctor, which provided him with specialized knowledge of human anatomy.
On November 7, 2006, the district court sentenced Holt to 120 months' imprisonment and fifteen years of supervised release. Holt timely appealed his sentence.
We review de novo the district court's interpretation of the United States Sentencing Guidelines ("the Guidelines"), review for clear error the district court's factual determinations, and review for abuse of discretion the district court's applications of the Guidelines to the facts. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005).
Holt opposes the district court's enhancement of his sentence on two grounds....
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