United States v. Davis
| Decision Date | 29 July 2022 |
| Docket Number | 19-3060 |
| Citation | 45 F.4th 73 |
| Parties | UNITED STATES of America, Appellee v. Rodney DAVIS, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robin M. Earnest, appointed by the court, argued the cause and filed the briefs for appellant.
Michael E. McGovern, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: Millett, Rao, and Walker, Circuit Judges.
Rodney Davis pled guilty to traveling across state lines with plans to sexually abuse an eight-year-old child. Davis’ arrest was the result of a successful sting operation in which an officer posed as the father of a fictitious child and communicated with Davis. At sentencing, the district court applied an enhancement because "the victim had not attained the age of twelve years." U.S.S.G. § 2A3.1(b)(2)(A). On appeal, Davis argues that this enhancement cannot apply to fictitious victims and claims that defense counsel rendered constitutionally deficient performance by failing to contest the enhancement's application on that ground. We reject Davis’ ineffective assistance claim as meritless since the enhancement can apply even when the victim is fictitious. We also reject Davis’ remaining sentencing challenges as the right to appeal them was knowingly, intelligently, and voluntarily waived.
In early 2018, Davis connected online with a "father" offering his eight-year-old daughter for illicit sexual activities. Unbeknownst to Davis, the father was really an undercover officer running a sting operation for the Metropolitan Police Department–FBI Child Exploitation Task Force, and the eight-year-old was fictitious. Davis continued to chat online with the officer, coordinating how to sexually abuse the young girl. When the officer revealed the child's age, Davis was "totally cool" and had no qualms. Davis’ primary concern was knowing how to initiate sex acts with the child and whether there were any "ground rules" of what could and could not be done to the eight-year-old during "play time." At various points during conversations with the officer, Davis graphically described fantasies of forcing the child to have oral sex, made plans to penetrate the child vaginally and anally, and suggested that the officer and Davis should "play[ ] with her simultaneously." Davis also expressed excitement and hope that this "good arrangement" would become a recurring engagement with the abusive acts steadily progressing at subsequent meetings.
After a few days of communications along these lines, the officer invited Davis to meet up in the District of Columbia to begin the planned sex acts with the child. That same day, Davis accepted the invitation, left work, and drove across state lines to the designated meeting point. Davis was arrested shortly after arrival.
The federal government charged Davis with one count of "travel[ing] in interstate commerce ... with a motivating purpose of engaging in ... illicit sexual conduct with another person." 18 U.S.C. § 2423(b). Davis pled guilty to that charge and admitted to traveling across state lines "for the purpose of engaging in a sexual act with an eight-year-old girl." Davis also waived the right to appeal any sentence imposed as part of the plea agreement unless the claim was based on ineffective assistance of counsel. Satisfied that Davis was "fully competent and capable of" pleading guilty and that the decision was "knowing and voluntary," the court accepted Davis’ guilty plea.
Both in the plea agreement and later sentencing memoranda, the parties agreed to a four-point sentencing enhancement. That enhancement applies when a defendant has committed or attempted to commit criminal sexual abuse against a "victim [who] had not attained the age of twelve years." U.S.S.G. § 2A3.1(b)(2)(A) ("minor victim enhancement"). Instead of arguing against the enhancement's applicability, Davis’ counsel asked for a downward variance to recognize that the "victim was not real." The district court disagreed that a variance was warranted because, fictitious or not, Davis thought an eight-year-old was involved, planned to sexually abuse that girl, tried to effectuate those plans, and hoped to perpetuate that abuse in the future. Adopting the recommended Guidelines range and considering all the relevant factors, the district court sentenced Davis to 108 months of imprisonment and 120 months of supervised release. Davis appealed.
Davis first claims that defense counsel rendered constitutionally deficient performance by failing to contest the minor victim enhancement's application at sentencing since the enhancement does not apply to situations involving fictitious victims. Because this argument lacks legal merit, defense counsel's failure to raise it is not constitutionally deficient performance.
To show ineffective assistance of counsel, "the defendant must show both error by counsel and prejudice to the defense." United States v. Marshall , 946 F.3d 591, 595 (D.C. Cir. 2020) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Not only must there be error, but the "[e]rror must be so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. (cleaned up). A defendant cannot show that an error resulted in constitutionally deficient performance, however, if the allegation of error is meritless. United States v. Islam , 932 F.3d 957, 963–64 (D.C. Cir. 2019). As we have repeatedly held, "[c]ounsel's failure to raise a meritless ... objection [is] not deficient performance." United States v. Sitzmann , 893 F.3d 811, 833 (D.C. Cir. 2018) (per curiam).
To determine whether Davis’ claims have merit, we turn to whether the minor victim enhancement applies in situations where the victim was fictitious. See U.S.S.G. § 2A3.1(b)(2)(A). Our circuit has yet to pass on this question, but the three circuits to consider the issue agree that fictitious victims can trigger this sentencing enhancement. See United States v. Angwin , 560 F.3d 549 (6th Cir. 2009) ; United States v. Graham , 413 F.3d 1211 (10th Cir. 2005) ; United States v. Lebovitz , 401 F.3d 1263 (11th Cir. 2005). We join them and hold that a victim's fictitious nature will not foreclose application of the minor victim enhancement if a defendant intended to sexually abuse an individual the defendant thought "had not attained the age of twelve years." See U.S.S.G. § 2A3.1(b)(2)(A). Four points support our conclusion.
First, the minor victim enhancement is part of a Guidelines section that applies to offenses for "Criminal Sexual Abuse" and "Attempt[s] to Commit Criminal Sexual Abuse." See id. § 2A3.1. Attempts to commit sexual abuse focus on a defendant's intent and conduct directed at accomplishing that abuse. An offense could therefore fit within this Guidelines section even if the defendant was "unable to complete the crime because the victims were fictitious." United States v. Butler , 92 F.3d 960, 963 (9th Cir. 1996). In Lebovitz , the Eleventh Circuit explained that a defendant's "intent and conduct" were all that mattered in determining whether a defendant had "attempted [to commit] criminal sexual abuse," not whether the defendant carried out or could have carried out his intentions against a fictitious victim. 401 F.3d at 1268. As the minor victim enhancement applies to completed and attempted sexual abuse, we decline to limit the enhancement's applicability merely because the defendant tried, but was unable, to abuse a fictitious victim under twelve. See id. at 1270 () (cleaned up).
Second, including fictitious children within the minor victim enhancement comports with Davis’ particular crime. Davis pled guilty to "travel[ing] in interstate commerce ... with a motivating purpose of engaging in ... illicit sexual conduct," which is defined to include a sexual act with a person under the age of eighteen. 18 U.S.C. § 2423(b), (f)(1) (emphasis added). The conviction "turned simply on the illegal purpose for which [Davis] traveled." Lebovitz , 401 F.3d at 1268 (cleaned up). Because that purpose is what matters under Section 2423(b), we recently explained that when a defendant travels across state lines to engage in sex acts with a child that turns out to be fictitious, the impossibility of completing the crime is not a cognizable defense. United States v. Lieu , 963 F.3d 122, 126–27 (D.C. Cir. 2020). We held that a defendant is criminally liable so long as he "inten[ded] to engage in illicit sexual conduct" with an individual that the defendant "believes ... to be" under eighteen regardless of "the circumstances as they may have existed in fact." Id. at 127 (cleaned up). Both the Section 2423(b) offense and the minor victim enhancement turn on a defendant's intent to commit abuse and therefore may encompass fictitious minors.
Third, the language and context of the minor victim enhancement focus on a victim's characteristics, not the harm done to the victim. The enhancement applies if "the victim had not attained the age of twelve years." U.S.S.G. § 2A3.1(b)(2)(A). By contrast, other enhancements in Section 2A3.1 apply, for example, "[i]f the victim sustained permanent or life-threatening bodily injury," or "[i]f the victim was abducted." Id. § 2A3.1(b)(4)(A), (b)(5). While these examples focus on harm to the victim, such as injury or abduction, the minor victim enhancement refers only to the victim's age. The enhancement's applicability therefore "does not ... depend on the effect of the defendant's conduct upon the victim," but rather the victim's characteristics. See Angwin , 560 F.3d at 552 (cleaned up).
Finally, because the word "victim" is defined to include...
To continue reading
Request your trial