United States v. Raiburn
| Docket Number | 20-3314 |
| Decision Date | 15 December 2021 |
| Parties | United States of America Plaintiff-Appellee v. Edward Lee Raiburn Defendant-Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Submitted: October 18, 2021
Appeal from United States District Court for the Southern District of Iowa - Central
Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Edward Lee Raiburn pleaded guilty to one count of production of child pornography and was sentenced to 360 months' imprisonment. On appeal, he argues that the district court[1] erred in (1) applying a two-level enhancement for an offense involving "the commission of a sexual act or sexual contact," U.S.S.G. § 2G2.1(b)(2)(A), and (2) applying a two-level enhancement for use of a computer to "solicit participation with a minor in sexually explicit conduct," U.S.S.G. § 2G2.1(b)(6)(B)(ii). We affirm.
K.N resided in Oklahoma with her grandmother. In early 2019, K.N., then 12 years old, dated Raiburn's stepson. Because of K.N.'s involvement with Raiburn's stepson, Raiburn knew K.N.'s age. Despite K.N.'s age, Raiburn began a sexual relationship with K.N. He had sexual intercourse with K.N. on June 17, 2019. Raiburn told K.N. not to tell anyone. They had sexual intercourse on at least ten occasions, including at Raiburn's home. Raiburn wrote a note documenting "two occasions in which [he] had sex with K.N. in mid-June 2019," which also set forth "handwritten rules and guidelines that were to be followed by Raiburn and K.N." R. Doc. 44, at 20 (bold omitted). Raiburn and K.N. signed the note.
In late July 2019, Oklahoma Child Protective Services notified K.N.'s mother that it had initiated an investigation into an alleged inappropriate relationship between Raiburn and K.N. As a result, K.N.'s mother moved K.N. to Des Moines, Iowa, to live with her.
After K.N.'s move, Raiburn went to Des Moines at least twice in August 2019 to meet K.N. On his first trip to Des Moines, Raiburn "bought K.N. a pre-paid cell phone for her to communicate with him." Id. Raiburn traveled to Des Moines planning to have sex with K.N., but it did not occur.
On August 31, 2019, the Des Moines Police Department received a tip that a young girl was repeatedly entering and exiting a parked vehicle with an adult male inside it in the back of a library parking lot. An officer responded to the parking lot and found 37-year-old Raiburn and 13-year-old K.N.[2] Raiburn told the officer that he and K.N. had traveled together from Oklahoma to Des Moines. K.N. told the officer that she lived in Oklahoma with her grandmother and that her grandmother was aware that she was with Raiburn in Des Moines. The officer, suspicious of the pair's stories, called K.N.'s grandmother. K.N.'s grandmother refuted their tale. In fact, an Oklahoma court had issued a non-contact order stemming from suspicions of a sexual relationship between K.N. and Raiburn. K.N.'s grandmother further informed the officer that the family relocated K.N. to Des Moines to live with K.N.'s mother to keep K.N. away from Raiburn. The officer then contacted K.N.'s mother, who picked up K.N. The officer permitted Raiburn to leave.
The same day, K.N.'s mother learned that K.N. had a prepaid cell phone that Raiburn had given her. K.N.'s stepfather looked through the phone's contents and discovered sexually explicit photos and messages sent between Raiburn and K.N. K.N.'s mother and stepfather gave the cell phone to the police.
The police counted over 3, 400 text messages and 228 image file messages exchanged between Raiburn and K.N. between August 9, 2019, and August 31, 2019. Many of the messages were sexual in nature. In response to Raiburn's requests, K.N. sent Raiburn multiple nude images, including images of her self-stimulating. K.N. used the cell phone that Raiburn had purchased for her to send the pictures. "Raiburn also sent photos to her of his penis." Id. at 22 (bold omitted). And, "sometimes at the direction of Raiburn, [K.N] showered while FaceTime video messaging with Raiburn so Raiburn [c]ould watch her shower." Id. (bold omitted). The text exchanges between K.N. and Raiburn graphically describe this conduct.
For example, in a text exchange from August 12, 2019, Raiburn requested that K.N. send him "a close-up photo depicting [K.N.'s] genitals," and K.N. complied. Id. at 42. Thereafter, "Raiburn sen[t] . . . two images to [K.N.] of what appears to be a male's hands covered in semen." Id. at 43. Three days later, on August 15, 2019, Raiburn texted K.N. to send him "a photo depicting [K.N.'s] genitals with [K.N.'s] finger inserted into her vagina," and K.N. complied. Id. at 44. Raiburn then texted K.N. "a close-up picture of [his] erect penis with a message 'You just made me super hard!!!!!'" Id. And, on August 21, 2019, after K.N. texted Raiburn that she was "getting ready for the shower," Raiburn responded, "Ready when you are." Id. at 48. Raiburn and K.N. ceased text messaging one another at 10:08 p.m., but they resumed texting one another at 10:48 p.m. Raiburn asked K.N. if she "s[aw] [him] cum," and K.N. responded, Id. at 49. Raiburn responded that he "wish[ed] [K.N.] would of [sic]" and asked K.N. if she was "embarrassed to play with [herself] in front of [Raiburn]." Id. K.N. replied, "No. I just miss you playing with me." Id.
The presentence investigation report (PSR) recommended a two-level enhancement for "[t]he offense involv[ing] the commission of a sexual act or sexual contact." R. Doc. 44, at 24 (citing U.S.S.G. § 2G2.1(b)(2)(A)). The PSR referenced the August 12 text exchange. The PSR also recommended a two-level enhancement for "the offense involv[ing] the use of a computer or an interactive computer service to solicit participation with a minor in sexually explicit conduct." Id. (citing U.S.S.G. § 2G2.1(b)(6)(B)(ii)). The PSR referenced the August 12 and August 15 text exchanges. Applying both enhancements, the PSR calculated a total offense level of 40. A total offense level of 40, combined with a criminal history category of I, yielded a Guidelines range of 292 to 365 months' imprisonment. The Guidelines range became 292 to 360 months' imprisonment due to the statutory maximum of 30 years. See U.S.S.G. § 5G1.1(c)(1).
Raiburn objected to application of the enhancements. The U.S. Probation Office gave two justifications in support of the two-level enhancement under § 2G2.1(b)(2)(A) for commission of a "sexual act" or "sexual contact." First, the enhancement applied because "relevant conduct" included the sexual intercourse that occurred between Raiburn and K.N. in Oklahoma, prior to K.N.'s relocation to Des Moines. The sexual intercourse constituted a "sexual act." Alternatively, the enhancement applied because the August 12 text exchange between Raiburn and K.N. included images of Raiburn's hands covered in semen, which showed that a "sexual act" or "sexual contact" had occurred.
Raiburn countered in his sentencing memorandum that the sexual intercourse in Oklahoma was not relevant conduct because "[a]ny sexual act that occurred prior to K.N.'s move to Des Moines in July 2019 cannot be said to have been preparation for the offense of production of selfie-styled nude images of K.N. weeks later in August 2019." R. Doc. 50, at 3. Additionally, Raiburn gave two reasons that his "touching of himself does not constitute 'sexual contact' as defined by [18 U.S.C. § 2246(3)]." Id. at 4. First, the statute's plain language "require[s] the touching of another person." Id. Second, the statute's legislative history provides that it was intended to "'reach all forms of sexual abuse of another,' not self-directed activity." Id. (quoting H.R. Rep. No. 99-594, at 11 (1986), as reprinted in 1986 U.S.C.C.A.N. 6186, 6191). Raiburn also noted that "any conduct by K.N. while she was in Des Moines also does not justify the enhancement." Id. (citing United States v. Starr, 486 F.Supp.2d 940, 946-47 (N.D. Iowa 2007)).
As to the second enhancement, under § 2G2.1(b)(6)(B)(ii), the U.S. Probation Office asserted that the two-level enhancement for the use of a computer to "solicit participation with a minor in sexually explicit conduct" applied because Raiburn solicited "nude photographs of K.N. (to include photographs of K.N.'s genitals) via his cell phone." R. Doc. 44, at 62.
Raiburn's reply disputed this interpretation of the guideline. Raiburn argued that § 2G2.1(b)(6)(B)(ii)'s "plain language requires that there be some solicitation of some participation by someone with K.N. in the sexually explicit conduct." R. Doc. 50, at 5....
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