U.S.A v. Rothenberg

• Decision Date: 29 June 2010
• Docket Number: No. 08-17106.,08-17106.
• Citation: 610 F.3d 621
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Stanley G. ROTHENBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

610 F.3d 621

UNITED STATES of America, Plaintiff-Appellee,v.Stanley G. ROTHENBERG, Defendant-Appellant.

No. 08-17106.

United States Court of Appeals, Eleventh Circuit.

June 29, 2010.

Peter Goldberger, Ardmore, PA, for Defendant-Appellant.

Lissette M. Reid, Anne R. Schultz, Suzan H. Ponzoli, Miami, FL, for Plaintiff-Appellee.

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

Before BIRCH and MARCUS, Circuit Judges, and HODGES,^* District Judge.

HODGES, District Judge:

This is a case involving offenses of sexual exploitation of a minor and possession of child pornography. Stanley G. Rothenberg was charged in a two count indictment. Count One alleged that Rothenberg, using a computer in interstate commerce, knowingly attempted to induce an individual under 18 to engage in criminal sexual activity in violation of 18 U.S.C. § 2422(b). ¹ Count Two alleged that Rothenberg knowingly possessed one or more visual depictions, transmitted in interstate commerce by computer, involving the use of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).² Rothenberg entered a plea of guilty to both offenses, without a plea agreement, and now appeals from his sentence. We affirm.

I. The Sentence

In determining the applicable sentencing range under the Sentencing Guidelines, the district court appropriately calculated the adjusted offense level of each of the two counts, independently, using the grouping rules of U.S.S.G. § 3D 1.1 et seq. The court first determined that the adjusted offense level as to Count One was 38. With respect to Count Two, the court arrived at an adjusted offense level of 33 after applying, among others, the specific offense characteristic defined in U.S.S.G. § 2G2.2(b)(5) mandating an enhancement of five offense levels in cases in which “the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” This had the effect under U.S.S.G. § 3D 1.4 of adding one offense level to the adjusted offense level of 38 applicable to Count One, producing a combined offense level of 39. The district court next applied the five level enhancement prescribed by U.S.S.G. § 4B1.5(b)(1) in cases in which “the defendant engaged in a pattern of activity involving prohibited sexual conduct.” That resulted-after an aggregate three level reduction for acceptance of responsibility-in a total offense level of 41 and, at Criminal History Category I, a sentencing range of 324 to 405 months.

The district court then considered the sentencing factors enumerated in 18 U.S.C. § 3553 and imposed a sentence of 300 months or 25 years (300 months as to Count One and 120 months as to Count Two, to run concurrently) to be followed by a term of supervised release for life plus a fine and the prescribed special assessment. The commitment term of 300 months represented a downward departure under the Sentencing Guidelines of two offense levels which the district court attributed to the defendant's age (64) and his state of clinical depression over many years.

Rothenberg objected to the enhancements under U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b)(1) resulting from the district court's finding of a pattern of prohibited sexual misconduct, and now raises the same issues on appeal.³

II. The Standard of Review

With respect to Sentencing Guidelines issues, this Court reviews “purely legal questions de novo, a district court's factual findings for clear error, and, in most cases, a district court's application of the guidelines to the facts with ‘due deference.’ ” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir.2004) (quoting United States v. White, 335 F.3d 1314, 1317 (11th Cir.2003)). See also 18 U.S.C. § 3742(e). And the “due deference” standard is, itself, tantamount to clear error review. See United States v. White, 335 F.3d 1314, 1318-19 (11th Cir.2003). For a finding to be clearly erroneous, this Court “must be left with a definite and firm conviction that a mistake has been committed.” Rodriguez-Lopez, 363 F.3d at 1137 (internal quotation marks omitted).

III. The Facts

The facts underlying the two charges in the indictment were stipulated to in a written factual basis for the plea of guilty. An extensive discussion of the events surrounding the offenses of conviction is unnecessary since they do not impact the narrow sentencing issue on appeal. Suffice it to say, as to Count One of the indictment, that in May, 2008, Rothenberg, a resident of Ft. Lauderdale, communicated in an internet chat room with an undercover officer in Ft. Pierce who held himself out as the father of an eleven year old daughter with whom he was sexually intimate. Discussions ensued about the two men having sex with the daughter, and arrangements were made for a preliminary face to face meeting in Ft. Pierce. Rothenberg traveled to Ft. Pierce for that rendezvous where their illicit sexual discussions continued and, ultimately, Rothenberg was arrested.

A search warrant was obtained and Rothenberg's residence was searched. The authorities found and seized Rothenberg's laptop computer as well as hundreds of printed computer chats, including Rothenberg's chats with the undercover officer. The computer contained approximately 90 images of child pornography including five sexually explicit images of children under 12, and four images depicting sadistic and masochistic acts. Rothenberg's possession of these images formed the basis for Count Two of the indictment.

IV. The Sentencing Issue

In determining that Rothenberg merited the pattern of activity enhancements prescribed by U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b)(1), ⁴ the district court relied upon transcripts of two separate chat room conversations Rothenberg had in the past with other adults, printed copies of which were among the many found during the search of his residence. One chat occurred on December 21, 2006, and the other, with a different person, on June 1, 2007.⁵ In both of these conversations, Rothenberg actively coached and encouraged other adults in graphic detail about how to sexually abuse minors in their care or under their influence.

In the chat that occurred on December 21, 2006, Rothenberg and a 19 year old male were discussing having sex when the latter disclosed that he had a “lil bro.” Rothenberg asked: “You ever try and do him?” “What's his age?” The answer given was 16, and Rothenberg declared: “HOT ... he's ready ... go slow and you can do it ... start with lubing him up and relaxing him with just one finger ... after a while, insert two fingers ... keep him relaxed ... suck his cock as u insert fingers ... so he associates feeling good with fingers up his ass ... begin slow ... it might take a couple of attempts ... he'll soon begin to enjoy it ... especially after a beer or two ... allow him to feel no guilt ... like it's a normal thing ... which it is.”

In the chat that occurred on June 1, 2007, Rothenberg was having conversation with a person who described himself as a 30 year old divorced male with custody of two young sons, ages 8 and 11. First, with reference to the 11 year old child, Rothenberg declared: “[B]eautiful ... are you training him? ... any sucking or jacking yet? ... what a hot age ... let him sleep with u ... things will happen naturally ... put your hand on his and help him out ... you're so lucky to have that ... he's ready ... he wants u ... oh believe me ... you have the best of the best ... you can groom him any way u want ... I think he's basically wanting it ... just my guess ...” It was at this point the father disclosed that he also had an 8 year old son in his home. Rothenberg stated: “[O]h even nicer ... let him in the bed ... kiss him and show him affection while you guide him ... take all guilt and shame away ... its natural and its good ... if you just gently grasp his hand and show him how to sensually feel you ... it would be great beginning ... and you, of course, can do him ... all the while re-inforcing [sic] that it is natural and good for dads and sons to bond like that ... it's the ultimate in father/son bonding ... you don't need to say anything if u don't want to ... you can just have all non-verbal activity ... you can do so much without saying a word ... words will eventually come ... take it slowly ... he's very eager to play with you sexually ... and that is so natural between dad and son ...”⁶

Rothenberg contends that neither of these “chats,” without more, is legally sufficient to constitute an attempt to violate 18 U.S.C. § 2422(b) or any other law because neither chat rises to the level of a “substantial step” toward commission of an offense. It follows, he argues, that neither of the chats can be considered as a part of any pattern of illegal conduct triggering application of either U.S.S.G. § 2G2.2(b)(5) or USGG § 4B1.5(b)(1). More specifically, he asserts that mere talk or speech unaccompanied by some other form of overt conduct cannot constitute a substantial step necessary to an attempt to commit an offense; or, if speech alone can amount to an attempt, that the talk or speech involved in this case is factually insufficient to rise to that level.

V. Discussion

To establish an attempt as a crime, proof is required: (1) that the defendant intended to commit the underlying criminal offense with the requisite mens rea, and (2) that the defendant engaged in conduct which constituted a substantial step toward the commission of that crime and which strongly corroborates the defendant's criminal intent. United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.2001); United States v. Yost, 479 F.3d 815, 819 (11th Cir.2007); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.2004). It is, however, the clearly established law of the circuit that to prove an attempted exploitation offense under 18 U.S.C. § 2422(b), the Government does not have to prove the existence or identity of a specific minor victim; a fictitious minor will...