U.S. v. Robertson, 02-1388.

• Decision Date: 02 December 2003
• Docket Number: No. 02-1388.,02-1388.
• Citation: 350 F.3d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John F. ROBERTSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

350 F.3d 1109

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

No. 02-1388.

United States Court of Appeals, Tenth Circuit.

December 2, 2003.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, Linda A. McMahan and Jennifer Mardosz, Assistant United States Attorneys, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Raymond P. Moore, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, and John T. Carlson with him on the brief), Denver, Colorado, for Defendant-Appellee.

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

McCONNELL, Circuit Judge.

Some of the great virtues of the internet — its flexibility, universal accessibility, and privacy — also make it an especially potent venue for sexual predators to communicate with minors regarding illicit sexual encounters. The anonymity of these communications, in particular, serves both to ensnare the child and to thwart the protective efforts of law enforcement. Accordingly, at the instruction of Congress, the Sentencing Commission has imposed a two-point enhancement when the internet is used either to induce a minor to engage in prohibited sexual conduct or to facilitate travel for that purpose. To counteract the enforcement difficulties, child protective agencies turn the feature of anonymity against the would-be predators by setting up sting operations designed both to apprehend violators and to create a credible deterrent to predatory use of the internet.

This case involves interpretation of one of the guidelines that enhance sentences for child sexual abuse offenses involving use of a computer. The guideline, by its terms, reaches broadly to cover any instance in which a "computer or an Internet-access device" is used to "facilitate transportation or travel, by the victim or a participant, to engage in prohibited sexual conduct." U.S.S.G § 2A3.2(b)(3) (the "Guideline"). Although the Guideline unquestionably applies to direct communications with minors under the age of 16, with adults with supervisory control over the minors, and with undercover agents posing as minors as part of a sting operation, the district court held that it does not apply to communications with undercover agents posing as adults with supervisory control over fictitious minor victims. Because we find this interpretation inconsistent with the language and purpose of the Guideline, we reverse.

FACTS

The facts in this case are undisputed. The following is a summary of the stipulation of facts from the plea agreement.

In early summer, 2001, Defendant John F. Robertson contacted an internet site advertising "fantasy tours," which is apparently a euphemism for trips involving paid sexual encounters. Unbeknownst to Mr. Robertson, this was a sting operation. He contacted the site by e-mail and requested further information. An undercover officer from the Sheriff's Department of Pueblo County, Colorado, sent Mr. Robertson a questionnaire to determine his preferences. Mr. Robertson completed the questionnaire that day, indicating his interest in "hot teen boys" and stating his age preference as "[t]he younger the better — late teens is preferable." Later, he narrowed his request to white boys between the ages of thirteen and fifteen, preferably with long hair. In graphic language not necessary to quote here, Mr. Robertson stated his desire to engage in anal and oral sex with the boys; he also proposed the use of illegal drugs "to help get the party started." Plea Agreement & Statement of Facts Relevant to Sentencing ("Plea Agreement") at 4, App. 13.

During the course of communications between Mr. Robertson and the undercover officer, the undercover officer accidentally sent a message from his e-mail account at the Colorado Crimes Against Children Task Force. Mr. Robertson, a former intelligence analyst for the Federal Bureau of Investigation, e-mailed in reply: "Why did I get a response from the Colorado Crimes Against Children Task Force detailing available tours? This sounds like some kind of sting operation. I await your reply — JR." Plea Agreement at 3, App. 12. The undercover officer replied that he used the Colorado Crimes Against Children address as part of his cover. He explained that it was his practice to "sit on several high level committees in regards to child welfare so [he] can keep [his] finger on the pulse of what the do-gooders are doing and in what direction they are moving." Id. Mr. Robertson answered: "Thanks for clearing everything up.... [B]ear with me. I don't want to spend several years living in `public housing' if you get my drift." Id. He then proceeded to discuss the details of his upcoming "fantasy tour."

Over the course of many months, Mr. Robertson and the undercover officer used e-mail and the internet to coordinate the details of Mr. Robertson's fantasy tour, including date, itinerary, price, and mode of payment, as well as the identification of two fictitious boys, "Michael" and "Andrew," supposedly aged thirteen and fourteen, who met Mr. Robertson's specifications. Mr. Robertson paid a down payment in advance of the trip.

On December 27, 2001, Mr. Robertson flew from his home in Pennsylvania to Colorado Springs, Colorado, where he met the undercover officer, confirmed his identity, and tendered the balance of the price for the "tour." He brought two Sony Walkman portable CD players as Christmas gifts for "Michael" and "Andrew." He was arrested on the spot.

In federal district court, Mr. Robertson was charged with knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a person under eighteen years of age, in violation of 18 U.S.C. § 2423(b). He pled guilty. In the plea agreement, Mr. Robertson and the government agreed the United States Sentencing Guidelines established a base level of twenty-one for Mr. Robertson's offense. See U.S.S.G. § 2A3.2(a)(2). The government, however, contended that Mr. Robertson's use of a computer should increase his offense level by two under § 2A3.2(b)(3) of the Guidelines. Mr. Robertson disputed this adjustment.

The district court rejected the government's argument and ruled that the two-point enhancement was not applicable:

I've also refused to place any upward adjustment for use of a computer, even though it is plain to me that the defendant did use a computer and that he did use the computer to persuade, induce, entice or coerce this fictitious victim into engaging in this prohibited sexual conduct.

Tr. 31, App. 95. In a written Memorandum of Sentencing Hearing and Report of Statement of Reasons, at 2, App. 101, the district court explained: "This case appears to be one which falls outside the guideline's plain language defining who is a `victim,' because, simply stated, the undercover officer did not represent to defendant that he (the officer) had not attained the age of sixteen years."

After making certain adjustments, described below, the district court sentenced Mr. Robertson to two years in prison, with three years of supervised release, which is the top of the applicable guideline range. The court explained:

I think his crime is a serious crime. He came here intending to victimize two young boys. They were fictitious, but they weren't known by him to be fictitious. The language in his e-mails concerning those young boys is nothing short of brutal, so he deserves a sentence at the top of this guideline range.

Tr. 31, App. 95.

The district court granted two downward adjustments. One of those — a three-point adjustment for acceptance of responsibility, is not disputed. A second three-point downward departure was made in response to what the district court called an "apparent drafting lacuna in the guidelines," which would have the effect of sentencing defendants who have no sexual contact with a child more severely than those who do. Sentencing Mem. at 3, App. 102. The district court departed downward "to a level at which defendant would have been sentenced if he had made sexual contact with his fictitious victims." Id. The government and Mr. Robertson agree that this downward departure required as a condition precedent the conclusion that the computer-use enhancement did not apply. The effect of reversing the district court with regard to the application of the computer-use enhancement, therefore, would be to increase Mr. Robertson's total offense level by five points, nearly doubling his prison sentence.

The government appeals the district court's ruling that the enhancement for use of a computer in committing the crime was not applicable. Exercising jurisdiction under 18 U.S.C. § 3742(b)(2), we reverse.

DISCUSSION

The district court's interpretation of a sentencing guideline is a question of law that we review de novo. See United States v. Smith, 133 F.3d 737, 744 (10th Cir.1997); United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir.1996). "We interpret the Sentencing Guidelines according to accepted rules of statutory construction." United States v. Reaves, 253 F.3d 1201, 1203 (10th Cir.2001). In interpreting a guideline, we look at the language in the guideline itself, as well as at the "interpretative and explanatory commentary to the guideline" provided by the Sentencing Commission. United States v. Frazier, 53 F.3d 1105, 1112 (10th Cir.1995); see also 18 U.S.C. § 3553(a)(5). "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

The guideline at issue in this case mandates a two-level enhancement "[i]f a computer or an Internet-access device was used to (A) persuade, induce, entice, or coerce the victim to engage in prohibited sexual...