U.S. v. Searcy

Citation418 F.3d 1193
Decision Date28 July 2005
Docket NumberNo. 03-16282.,03-16282.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edgar Joe SEARCY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Howard S. Dargan (Court-Appointed), Hamilton, Lehrer & Dargan, Boca Raton, FL, for Searcy.

Kathleen M. Salyer, Anne R. Schultz, Asst. U.S. Atty., Jeanne Marie Mullenhoff, Asst. U.S. Atty., Emily Smachetti, Randall Dana Katz, Miami, FL, for U.S.

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

Before DUBINA and WILSON, Circuit

Judges, and LAWSON*, District Judge.

WILSON, Circuit Judge:

Edgar Joe Searcy appeals his conviction and sentence for using a facility and means of interstate commerce, the internet service provider America Online ("AOL"), to knowingly persuade, induce, entice or coerce a minor to engage in unlawful sexual activity, and attempting to do so, in violation of 18 U.S.C. § 2422(b). At issue on appeal is whether the district court erred in concluding that a violation of 18 U.S.C. § 2422(b) is a crime of violence for the purpose of classifying Searcy as a career offender under U.S.S.G. § 4B1.1.1

I. BACKGROUND

Posing undercover as the father of a thirteen-year-old girl in an AOL chatroom, a law enforcement officer received an instant message from Searcy using the screen name "OBBESSEDDAD11." During this exchange, Searcy informed the detective that he was a member of a father-daughter swap club. Searcy and the detective communicated next via telephone and Searcy reiterated that he was a member of a father-daughter swap club and asked to set up a face-to-face meeting with the detective. At the face-to-face meeting, Searcy asked the detective if he and his daughter would accompany Searcy on a trip. Searcy said that he wanted to have sex with the detective's daughter and would arrange for the detective to have sex with his children. Searcy was then arrested.

After the government notified Searcy of its intent to introduce evidence of two of Searcy's prior state convictions, Searcy agreed to plead guilty. At the first change-of-plea hearing, Searcy contested the government's factual proffer, and the district court scheduled Searcy's case for trial. At a subsequent change-of-plea hearing, Searcy did not dispute the government's factual proffer, and the district court accepted his guilty plea made pursuant to a plea agreement. At his sentencing hearing, the court heard testimony that when Searcy was arrested the investigators found pictures on his computer, and in his email account, of minor females in sexual positions. Also found were two floppy discs with over thirty images of child pornography.

In the pre-sentence investigation report ("PSR"), the probation officer assigned Searcy a base offense level of 21 under U.S.S.G. § 2G1.1(c)(3)2 cross-referenced to U.S.S.G. § 2A3.2(a)(2) plus a two-level increase pursuant to U.S.S.G. § 2A3.2(b)(3) for use of a computer for an adjusted base offense level of 23. The probation officer then recommended that Searcy be classified as a career offender under U.S.S.G. § 4B1.1(a) because he had two prior convictions for crimes of violence — his 1988 Florida conviction for sexual activity with a child and lewd, lascivious or indecent assault upon a child, and his 1997 Kansas conviction for sexual exploitation of a child. This career offender enhancement increased Searcy's adjusted base offense level to a 29, but the probation officer recommended a three-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, resulting in a total adjusted offense level of 26.

Because Searcy committed the instant offense within two years of his release from custody for a 1997 Kansas conviction, his criminal history category was IV, but his career offender status bumped that category to VI. With an adjusted base offense level of 26 and a criminal history category of VI, Searcy's guideline range was 120 to 150 months of imprisonment. The district court then upwardly departed pursuant to U.S.S.G. § 4A1.3 due to the similarity of the prior convictions to the instant offense and Searcy's recidivist tendencies, and sentenced him to the statutory maximum of 180 months.

The issue decided today, whether a violation of § 2422(b) should be classified as a crime of violence for the purpose of career offender classification, is an issue of first impression in this Circuit.

II. STANDARD OF REVIEW

The interpretation of a statute is a question of law subject to de novo review. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 439, 160 L.Ed.2d 324 (2004).

III. DISCUSSION

A defendant qualifies as a "career offender" under the Guidelines if "(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. Searcy argues that the court improperly determined that he was a career offender under U.S.S.G. § 4B1.1 because his instant offense is not a crime of violence.

The Guidelines define a "crime of violence" as: "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) . . . otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2 (emphasis added). As the first application note to U.S.S.G. § 4B1.2 explains, "`[c]rime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." U.S.S.G. § 4B1.2, cmt. n.1.3 That application note further explains that: "[o]ther offenses are included as `crimes of violence' if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e. expressly charged) in the count of which the defendant was convicted . . ., by its nature, presented a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2, cmt. n.1 (emphasis added). The second application note instructs that when deciding whether an offense is a crime of violence, "the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of the inquiry." U.S.S.G. § 4B1.2, cmt. n.2.

At the time of the offense, § 2422(b) provided:

Whoever, using the mail or any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.

18 U.S.C. § 2422(b) (1998). Searcy claims that because § 2422(b) does not include an element of force or violence, his non-physical offense was not a crime of violence. Searcy further posits that the least culpable conduct necessary to constitute all of the essential elements of a § 2422(b) violation does not require any behavior that would, by its nature, pose a serious risk of physical injury to another individual. Rather, he asserts that the underlying criminal conduct is the persuasion, inducement or enticement and not the physical sexual act itself. The government responds that the court correctly applied the career offender guideline and properly concluded that § 2422(b), by its nature, constitutes a crime of violence based on the inherent potential risk of physical injury to the minor.

As stated above, under U.S.S.G. § 4B1.2, there are two approaches for classifying an offense as a crime of violence. The first approach is to determine whether the use, attempted use or threatened use of physical force against another is an element of § 2422(b). See U.S.S.G. § 4B1.2(a)(1). Because the act of persuasion, inducement, coercion or enticement need not involve physical force, § 2422(b) does not have, as an element, the use, attempted use, or threatened use of physical force against another. Alternatively, under the second approach, we must determine whether § 2422(b) involves conduct that, by its nature, presents a serious potential risk of physical injury to another. See U.S.S.G. § 4B1.2(a)(2). By applying this second approach, the district court concluded that § 2422(b) qualifies as a crime of violence for the purpose of classifying Searcy as a career offender.

In concluding that § 2422(b) is a crime of violence, the court relied upon Sixth and Tenth Circuit decisions addressing similar statutes. In an unpublished opinion, the Sixth Circuit determined that a violation of § 2422(a), which criminalizes the use of a computer to entice a minor to travel interstate to engage in unlawful sex, qualified as a crime of violence for career offender purposes. See United States v. Smith, 20 Fed.Appx. 412, 418 (6th Cir.2001), cert. denied, 535 U.S. 1070, 122 S.Ct. 1944, 152 L.Ed.2d 848 (2002). In that case, the Sixth Circuit broadly stated that "any felony involving the sexual exploitation of a juvenile inherently poses a serious potential risk of physical injury to the victim and hence constitutes a categorical `crime of violence.'" Id. In the instant case, the district court cited the similarity in the two sub-sections and relied on Smith's broad categorical approach that sexual offenses against minors inherently pose a risk of physical injury to the minor victims.

The Sixth Circuit has also held that § 2251(a), another statute sufficiently similar to § 2422(b), is a crime of violence. See United...

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