U.S. v. Shafer, No. 07-2574.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtKaren Nelson Moore
Citation573 F.3d 267
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert George SHAFER, Defendant-Appellant.
Docket NumberNo. 07-2574.
Decision Date21 July 2009
573 F.3d 267
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert George SHAFER, Defendant-Appellant.
No. 07-2574.
United States Court of Appeals, Sixth Circuit.
Argued: December 2, 2008.
Decided and Filed: July 21, 2009.

[573 F.3d 269]

ARGUED: Richard E. Zambon, Mitchell & Zambon, Grand Rapids, Michigan, for Appellant. Donald A. Davis, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard E. Zambon, Mitchell & Zambon, Grand Rapids, Michigan, for Appellant. Daniel Y. Mekaru, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MOORE and WHITE, Circuit Judges; TARNOW, District Judge.*

MOORE, J., delivered the opinion of the court, in which WHITE and TARNOW, JJ., joined. TARNOW, D.J. (p. ____), delivered a separate concurring opinion.

AMENDED OPINION

KAREN NELSON MOORE, Circuit Judge.


Defendant-Appellant Robert Shafer ("Shafer") appeals his sentence of 360 months of imprisonment resulting from his guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a). Specifically, Shafer admitted to "caus[ing] an eleven-year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area. [Shafer] produced seven (7) digital images of the sexually explicit conduct using materials which had been shipped and transported in interstate and foreign commerce, including, but not limited to, a Sony Mavica brand digital camera that was manufactured outside of the State of Michigan." Joint Appendix ("J.A.") at 14-15 (Indictment at 1-2). Shafer's sole argument on appeal is that the district court clearly erred at sentencing when it imposed a two-level enhancement pursuant to the U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2G2.1(b)(2)(A) (2006). After we issued an opinion in this case, the Government presented in a petition for rehearing and rehearing en banc a new argument that we did not have occasion to consider in our initial review. In light of this new argument, we provided Shafer an opportunity to respond to the Government's position, and we conducted further research regarding the legislative purpose behind the statute at issue in this case as expressed in the statute's legislative history. Having thoroughly reviewed these additional materials, we now AFFIRM Shafer's sentence. We withdraw our prior opinion and issue this amended opinion.

I. FACTS AND PROCEDURE

The facts of this case are not in dispute. Shafer and codefendant Kurt Amundson ("Amundson") operated a licensed foster-care home in Michigan. On June 20, 2006, the Van Buren County, Michigan, Sheriff's

573 F.3d 270

Department received information from C.J., a minor boy in Shafer's and Amundson's care, and C.J.'s father, that pertained to child pornography and other illegal conduct involving Shafer and Amundson. C.J. stated that, while he was under Shafer's and Amundson's care, he and other boys would join Shafer and Amundson in the hot tub at the residence. On one occasion, C.J. saw Amundson and Shafer in the hot tub with J.G., another minor ward of Amundson and Shafer, and B.H.,1 a minor boy; everyone in the hot tub was naked. C.J. also reported finding pornographic pictures on Shafer's and Amundson's computers, but denied having any inappropriate contact with either Shafer or Amundson.

On June 29, 2006, law-enforcement officials executed a search warrant on Shafer's and Amundson's home, seizing various computers, floppy disks, DVDs, CDs, videotapes, and an external hard drive. Shafer was the primary user of one computer, which contained 144 images of suspected child pornography dating from November 2003, to April 5, 2006. In total, the search uncovered "20 images of child pornography production; 25,086 images of child pornography; and 1,244 child pornographic videos." J.A. at 194 (Presentence Investigation Report ("PSR") at 9 ¶ 35).

Of the images discovered, several included images of B.H. either naked or exposing his genitals or buttocks. One picture, taken when B.H. was eleven years old, depicted B.H. masturbating. B.H. was thirteen years old at the time these photos were discovered.

On June 6, 2007, a grand jury returned a six-count indictment charging Shafer and Amundson with sexually exploiting children. Law-enforcement officials arrested Shafer and Amundson on June 7, 2007. Pursuant to a proffer agreement, the FBI interviewed Shafer on July 18, 2007. At that time, "Shafer admitted molesting B.H. since he was approximately 8 years old." J.A. at 195 (PSR at 10 ¶ 47). Shafer believed this molestation occurred "once every two weeks over a five or six year period." Id. Shafer further detailed specific instances in which he and Amundson molested B.H. Shafer also admitted to sexually assaulting other children, but denied ever having sexual intercourse with J.G.2

On July 25, 2007, Shafer pleaded guilty to count one of the indictment, enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a), and consented to the forfeiture allegation under 18 U.S.C. §§ 2253(a)(1) and (a)(3) expressed in count six. Count one specifically stated that Shafer "caused an eleven-year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area" and produced seven "digital images of the sexually explicit conduct using

573 F.3d 271

materials which had been shipped and transported in interstate and foreign commerce." J.A. at 14-15 (Indictment at 1-2).

A PSR was ordered and provided to Shafer prior to sentencing. The PSR calculated Shafer's base offense level as 32 and imposed multiple enhancements. Shafer raised several objections to the PSR in a sentencing memorandum. Most important for purposes of this appeal, Shafer objected to a two-level enhancement awarded pursuant to § 2G2.1(b)(2)(A), which applies when "the offense involved ... the commission of a sexual act or sexual contact." U.S.S.G. § 2G2.1(b)(2)(A). Shafer argued that both the term "sexual act" and the term "sexual contact" require one individual to touch another individual and thus do not encompass self-masturbation.

The district court responded to Shafer's objections at Shafer's sentencing hearing on December 10, 2007. During argument regarding the § 2G2.1(b)(2)(A) enhancement, Shafer conceded that there was evidence "that he personally had direct physical contact with BH of a sexual nature but not with respect to the offense of conviction." J.A. at 120 (Sent. Hr'g Tr. at 24). The district judge overruled Shafer's objection to the § 2G2.1(b)(2)(A) enhancement, finding two grounds to support imposing the enhancement.

First, the district judge found that, although "sexual act," as defined by 18 U.S.C. § 2246(2), requires one individual to make contact with another individual, the plain language of 18 U.S.C. § 2246(3) defining "sexual contact" is broader, covering self-masturbation when done with the intent to arouse or gratify the sexual desire of either the person masturbating or a person watching. Specifically, the district judge stressed that § 2246(3) defined "sexual contact" to include "the intentional touching ... of the genitalia ... of any person" and that "a person masturbating is caught touching the genitalia of any person, namely, his or her own." J.A. at 125 (Sent. Hr'g Tr. at 29). The district judge further found that a person can masturbate "with the intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person," as required by § 2246(3), "and the desire of any person could include the [desire of the] person masturbating, or in this case could include the [desire of the] people filming [the masturbation], namely, [Shafer]." Id.

Second, the district judge found that, for purposes of this case, § 2G2.1(b)(2)(A) is not limited to

the specific offense of conviction. Rather, I think, to say that the offense, not the offense of conviction, involved the commission of a sexual act or sexual contact implies more and suggests that the entire pattern of conduct involving at least a particular minor victim, such as BH in this case, ranging from earliest evidence of that at age 8 to the offense of conviction at age 11, is all part and parcel of the offense.

J.A. at 126 (Sent. Hr'g Tr. at 30). The district judge elaborated that "grooming conduct was an admitted part of what was going on here. This was not sex by force; it was sex by trust. And that involves ongoing acts and ongoing contact." Id. The district judge concluded that "anything related to that particular minor victim in the house of the co-defendants as part of their overall relationship is fair consideration for application of that guideline under 2G2.1[(b)](2)(A), and so that's an alternative basis, and the Court is holding that the enhancement would apply." Id.

After ruling on all of Shafer's objections, some of which were sustained and are not at issue in this appeal, and awarding a one-level reduction pursuant to the Government's

573 F.3d 272

motion for departure, the district court recalculated Shafer's offense level to be 41, with a criminal history category of I. The applicable guidelines range is 324 to 405 months; however, due to the 360-month statutory maximum for the offense to which Shafer pleaded, Shafer's guidelines range was set at 324 to 360 months. The district court sentenced Shafer to 360 months of imprisonment. Shafer timely appealed.

II. ANALYSIS

Shafer contends that...

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  • Morris v. State, NO. PD-0796-10
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 2011
    ...by trial judge that defendant "grooms or grows" his victims and could not stop grooming victims even from jail); United States v. Shafer, 573 F.3d 267, 271 (6th Cir. 2009) (reference by trial judge to "grooming conduct"); United States v. Young, 613 F.3d 735, 739 & n.3 (8th Cir. 2010), cert......
  • Morris v. State, No. PD–0796–10.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 2011
    ...by trial judge that defendant “grooms or grows” his victims and could not stop grooming victims even from jail); United States v. Shafer, 573 F.3d 267, 271 (6th Cir.2009) (reference by trial judge to “grooming conduct”); United States v. Young, 613 F.3d 735, 739 & n. 3 (8th Cir.2010), cert.......
  • United States v. Sanchez, 19-14002
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 5, 2022
    ...does not amount to a sexual act or sexual contact within the meaning of the guidelines provision. Yes it does. United States v. Shafer , 573 F.3d 267, 278 (6th Cir. 2009) (upholding application of the § 2G2.1(b)(2)(A) enhancement where the defendant persuaded the young victim to "to self-ma......
  • Brogan v. Comm'r of Soc. Sec., Case No. 3:14CV714
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 31, 2014
    ...opinions for ALJs that do not comprehensively set forth the reasons for the weight assigned to a treating physician's opinion." Hensley, 573 F.3d at 267 (quoting Wilson, 378 F.3d at 545 (citation omitted)). Given the ALJ's incomplete analysis and the lack of a rationale to support the weigh......
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48 cases
  • Morris v. State, NO. PD-0796-10
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 2011
    ...judge that defendant "grooms or grows" his victims and could not stop grooming victims even from jail); United States v. Shafer, 573 F.3d 267, 271 (6th Cir. 2009) (reference by trial judge to "grooming conduct"); United States v. Young, 613 F.3d 735, 739 & n.3 (8th C......
  • Morris v. State, No. PD–0796–10.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 2011
    ...by trial judge that defendant “grooms or grows” his victims and could not stop grooming victims even from jail); United States v. Shafer, 573 F.3d 267, 271 (6th Cir.2009) (reference by trial judge to “grooming conduct”); United States v. Young, 613 F.3d 735, 739 & n. 3 (8th Cir.2010), c......
  • Brogan v. Comm'r of Soc. Sec., Case No. 3:14CV714
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 31, 2014
    ...for ALJs that do not comprehensively set forth the reasons for the weight assigned to a treating physician's opinion." Hensley, 573 F.3d at 267 (quoting Wilson, 378 F.3d at 545 (citation omitted)). Given the ALJ's incomplete analysis and the lack of a rationale to support the weight sh......
  • Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg. Co.), No. 12-2012
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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 20, 2013
    ...of the appeal presents a pure question of law, our review is de novo. In re Wicker, 702 F.3d at 877; see also United States v. Shafer, 573 F.3d 267, 272 (6th Cir. 2009) ("A matter requiring statutory interpretation is a question of law requiring de novo review . . . ." (internal q......
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