U.S. v. Mitchell, 02-3562.

• Decision Date: 23 December 2003
• Docket Number: No. 02-3562.,02-3562.
• Citation: 353 F.3d 552
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

353 F.3d 552

UNITED STATES of America, Plaintiff-Appellee, v. John MITCHELL, Defendant-Appellant.

No. 02-3562.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2003.

Decided December 23, 2003.

Tu Pham (Argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Terence F. MacCarthy, Angela F. Milella (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

The Internet has opened the doors for many to transact business and personal affairs with almost complete anonymity. For fifty-year-old John Mitchell, it allowed him to initiate a relationship with fourteen-year-old Dena Hugh. After two weeks of communicating with Dena about a variety of topics, but mostly about sex, he arranged to drive from Indiana to Illinois to meet her at a hotel near her home for the purpose of engaging in sexual activity. But the anonymity of the Internet works in both directions, and unfortunately for Mitchell, "Dena" was actually an undercover Cook County Sheriff's Detective posing as a fourteen-year-old girl. Mitchell was arrested at the Illinois hotel and pled guilty to traveling in interstate commerce with the intent to engage in a sexual act with an undercover agent whom he believed to be a fourteen-year-old girl. During sentencing the district court increased his offense level by two based on the United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2A3.2(b)(2)(B) (2001)¹ which provides for a two-level enhancement where the defendant unduly influenced a minor under the age of sixteen to engage in prohibited sexual conduct. Mitchell argues that this enhancement cannot apply when the victim is an imaginary teenager and where no sexual conduct has occurred. Because we agree that the plain language of the sentencing guideline cannot apply in the case of an attempt where the victim is an undercover police officer, we reverse and remand for re-sentencing.

I.

At the time of the crime, according to Mitchell, he was down on his luck. His marriage had failed, his appraisal business was failing, his stepfather and business partner had recently died, and his ex-wife had just married a former neighbor. As a result of these facts, he claims, this otherwise upstanding veteran, Lion's Club President, Habitat for Humanity volunteer, and father of three turned to Internet sites where older men can meet young women, and in many cases too young girls. On December 3, 2001, he entered a chat room² entitled "I love Older Men!!:2," using the screen name³ "hoosiermale50." Cook County Sheriff's Detective William Plahm, posing as "Dena" was also in the room, having signed on with the screen name "ilgirl4u." Mitchell initiated a conversation with Dena and then the two exited the chat room to begin a private conversation using Yahoo!Messenger, a service that allows parties to send private messages to each other in real time. Dena informed Mitchell that she was a fourteen-year-old girl living near Chicago, Illinois.

Mitchell and Dena had several private instant messenger conversations on the Internet and exchanged a few e-mails over the course of eleven days. They conversed about Mitchell's job, children, divorce, old relationships and about Dena's school, parents, and softball. But mostly they wrote about sex. Mitchell appears to have initiated the topic of conversation by asking Dena about her physical appearance, whether she had had sex yet, and whether she was interested in older men. He then proceeded to "educate" her about things she needed to know about sex. He lectured her on losing her virginity, performing and receiving oral sex, masturbation, being naked with another person, and pleasing men. He also talked reassuringly about sex, telling her, "I would never force you to do anything," (R. at 23, ex. A, p.9); "you have a lot of fun ahead of you," (R. at 23, ex. A, p.10); "I like to do whatever my lover enjoys — we try something and you don't like it we stop and do something else,"⁴ (R. at 23, ex. A, p.12); "just don't be scared — I will be gentle and we will get used to each other" (R. at 23, ex. A, p.57). He also reassured her that he had had a vasectomy and could not get her pregnant. (R. at 23, ex. A, p.11).

On the other side of the screen, the Sheriff's Deputy, as "Dena," expressed interest in Mitchell stating, "we like each other lots, I think," (R. at 23, ex. A, p.37); "I think everything [we do] will b cool," (R. at 23, ex. A, p.39); "U will teach me stuff the rite way rite?" (R. at 23, ex. A, p.29); "wow its sounds so way awesum john," (R. at 23, ex. A, p.11); "Ok it sounds way fun to do," (R. at 23, ex. A, p.12); and responding to many of Mitchell's statements with a reciprocal "I want u to," (R. at 23, ex. A, p.40) or "I want to do same u." (R. at 23, ex. A, p.78).

After a few rounds of chatting, Mitchell and Dena made plans to meet at a hotel near Dena's house in Hillside, Illinois. Dena e-mailed Mitchell with information regarding hotels located near her house. According to the plan to which the two had agreed, Mitchell left his home in Elkhart, Indiana on December 15, 2001, and drove to the pre-arranged meeting spot in the parking lot of a Holiday Inn in Hillside. Once there, he called Dena to let her know that he had arrived. He told Dena that he would probably get a room, but he entered the lobby of the Holiday Inn and then exited without having booked the room. Shortly thereafter, a Sheriff's Deputy posing as Dena approached Mitchell and he was arrested.

Mitchell pled guilty, admitting that he traveled in interstate commerce with the intent to engage in a prohibited sexual act with an undercover agent whom he believed to be a fourteen-year-old girl, in violation of 18 U.S.C. § 2423(b). In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled "Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts" applied. The parties also agreed that the base offense level could be increased by two levels under subsection (b)(3) because Mitchell had used a computer and an Internet access device during the commission of the crime. This was the only enhancement mentioned in the plea agreement. Nevertheless, the probation officer who drafted the pre-sentence investigation report applied a two-level enhancement to the defendant's sentence based on a conclusion that Mitchell had unduly influenced his victim. U.S.S.G. § 2A3.2(b)(2)(B). Although the government had not sought this enhancement in the plea agreement, it supported the pre-sentence investigation report's use of the enhancement. Over Mitchell's objections, the district court applied the two-level enhancement for behavior which "unduly influenced the victim to engage in prohibited sexual conduct." Mitchell appeals.

II.

Mitchell objects to the two-level sentencing enhancement imposed by the court pursuant to U.S.S.G. § 2A3.2(b)(2)(B). This enhancement — applied to persons convicted of criminal sexual abuse of a minor under the age of sixteen years or attempts to commit such acts — increases a participant's sentencing level by two where, "a participant otherwise unduly influenced the victim to engage in prohibited sexual conduct." Id. The commentary to the guideline states,

In determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant's influence over the victim compromised the voluntariness of the victim's behavior.

In a case in which a participant is at least 10 years older than the victim, there shall be a rebuttable presumption, for purposes of subsection (b)(2)(B), that such participant unduly influenced the victim to engage in prohibited sexual conduct. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the victim.

U.S.S.G. § 2A3.2, cmt. n.4. Because Mitchell was more than ten years older than the fictitious Dena, the court applied the presumption that he had unduly influenced his victim and found that he had not successfully rebutted the presumption.

Mitchell argues first that the enhancement applies only when a participant successfully influences a victim to engage in prohibited sexual contact — not in the case of an attempt, and second, that because the enhancement requires a court to consider the voluntariness of the victim's behavior, it cannot apply in the case of a sting operation where there is no real victim.

We review the district court's interpretation of sentencing guidelines de novo. United States v. Smith, 332 F.3d 455, 457-58 (7th Cir.2003). When construing federal sentencing guidelines, we turn to the general rules of statutory construction. United States v. Lewis, 93 F.3d 1075, 1080 (2d Cir.1996). Accordingly, we must begin by looking at the plain language of the guideline. United States v. Twieg, 238 F.3d 930, 931 (7th Cir.2001). We treat the commentary to the guideline as authoritative as well. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

The guideline itself supports Mitchell's argument about the inapplicability of the subsection to attempts. The guideline requires the two level enhancement where "a participant otherwise unduly influenced the victim to engage in prohibited sexual conduct." U.S.S.G. § 2A3.2(b)(2)(B) (emphasis supplied). The government, using brackets and ellipses to alter the tense of the guideline language, states that the plain language only requires "undu[e] influence[ ] ... to engage in prohibited sexual conduct." (Brief of the United States at 10). But the government's editorial contortions merely highlight the problem — the language of the enhancement is in the past tense; an honest reading of the plain language of the guideline would indicate that it could not apply where the...