United States v. Vance

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 06-13035 AUGUST 3, 2007

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 05-00157-CR-2-JHH-RRA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID L. VANCE,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(August 3, 2007)

Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

ALARCÓN, Circuit Judge:

David L. Vance appeals from the judgment of conviction and the District

Court’s sentencing decision. He contends that the District Court committed plain

*

Honorable Arthur L. Alarcón. United States Circuit Judge for the Ninth Circuit, sitting by

designation.

error in sustaining the prosecutor’s objection to the admission of an extra-judicial

statement. He also asserts that the District Court erred as a matter of law in

concluding that he unduly influenced a minor to engage in prohibited sexual

conduct, and in enhancing his base offense level based upon its finding that his

offense involved the use of a computer to solicit a minor to engage in prohibited

sexual conduct. We affirm because we conclude that the District Court did not

abuse its discretion in its evidentiary ruling, nor did it clearly err in its findings in

support of its sentencing decision.

I

Viewing the evidence in the light most favorable to the Government as the

prevailing party at trial, the record shows that, as part of an ongoing undercover

sting investigation, Captain John Crane of the Birmingham, Alabama Police

Department posted a message on a Yahoo! web site serving a child pornography

group called “texashottestteens.” The subject line for that group was “Tiny Interest

Trips.” Captain Crane’s message advertised the availability of minors for sexual

activity. Captain Crane’s posted message reads as follows: “Tiny Interest

Companions. Lolita - VYB - VYG. Private travel opportunities available. (Costa

Rica). Discretion assured. E-mail for details.”1

1

Captain Crane explained at trial that “Lolita” referred to an underage girl, “VYB” meant

“very young boy,” and “VYG” meant “very young girl.”

2

The message listed “tiny_interest@yahoo.com” as the e-mail address. It

also provided that if that e-mail address had been deleted by Yahoo!, the person

posting the advertisement could be contacted by using the e-mail address

“xxtinyholzxx@yahoo.com.”

Captain Crane testified that in this sting operation, he did not single out any

person to entice them to respond to his advertisement. Instead, he waited until he

received a response to his advertisement. In his role as a feigned procurer, Captain

Crane’s message provided persons seeking to engage in prohibited sexual conduct

with minors the opportunity to use him as their agent to carry out their intent.

On January 18, 2005, Mr. Vance sent an e-mail to Captain Crane in which

he stated “details please.”2 Mr. Vance identified his e-mail address as

“rocketpwr11234@yahoo.com.” Captain Crane responded as follows:

I got your email inquiry. Tiny Interest Companions

utilizes a private aircraft and flight plan from a medium

sized airport. This insures privacy for our clients since a

group-style manifest is filed. The destination includes

private clubs located in Costa Rica. These very exclusive

clubs offer a variety of choice of VYG’s to VYB’s.

Travel, accommodations for 2 nights / 3 days and

companion are all included in the price. 25% is due at

takeoff with the balance due prior to return. Specific

questions, desires and expectations can be emailed but

for obvious reasons, there is not a website and PayPal is

not accepted.

2

All the correspondence between Captain Crane and Mr. Vance was by internet e-mail.

3

Mr. Vance replied: “ive always wanted to go to costa rica what are ur

prices, and whats included.” Captain Crane’s response stated:

A buddy of mine is a corporate pilot and the

company lets him use the jet twice a year.

We go down to Costa Rica (we try to avoid

the U.S. anyway) from a private gate at a

medium sized metro airport in the Southeast

USA. We stay at the Best Western

Downtown San Jose, which is about 14

miles from the Juna Santamaria

International Airport. The cost is about $58

dollars a night which is included. The rate is

$1,500.00 which covers the trip, hotel, 2

Nights with VYG / VYB (what age span

were you interested in and what you wanted

to do - no pain!!!) I send an email to our

contact there to have things set up - you

choose the one you want at the club) and

that rate leaves a profit margin that my

buddy and I split. If you are still interested,

we can go from there. We are looking at

around the 18 of Feb. or 11th of March.

Mr. Vance’s next message stated: “What no drinks come on its first time

down there.What other islands are near?any pics i like to get a feel of what iam

goin [sic] going to see. g12 15.” On February 2, 2005, Mr. Vance replied as

follows: “i cant wait i bet its warm down there rip off what do u mean. fem 12-17

whats next.”

Captain Crane’s next message stated:

4

Next, I need to know what do you want to do with the

girls so we can line up the appropriate ages before we get

there. 25% ($375) is required prior to departure. We

[sic] way we do that is that you physically cut the money

in half with a pair of scissors. Send half the bills with a

photocopy of the “front” of your passport (I don’t want

your name or anything, but you have to have one to get

back into the U.S. and I just want to make sure you do).

Bring the other half of the bills with you for when we get

on the jet going down. The balance ($1,125) is due

before we come back. If this is satisfactory, let me know

along with your expectations and I’ll send you the

address.

Mr. Vance replied: “them with each other and inter core with m E of course

what else give me ideas, about the other well no problem with money but passport i

dont know can i black out every thing or just insure u i have one will be enough.”

In reply, Captain Crane stated:

Several things I wanted to let you know. We got the

plane for the 11th of March. I emailed my contact in

Costa Rica and he let me know what he had available. If

you wanted two to have sex with each other and

intercourse with you here is what he has initially set up

for the nights there:

Marguarite - 12 years old

Vittoria - 13 years old

Maria - 15 years old

Juanita - 17 years old

If you wanted two of a specific age, I can email him back

so he can make arrangements. I did’t want to commit to

anything until I heard from you so let me know which

ones interest you and he’ll have them there. Believe me,

they are very attractive....he has never let me down

5

before. I like mine a little younger and have already put

my order in.

Last of all, you can mail me at:

T.I. (for Tiny Interest)

P.O. Box 5231

Birmingham, AL 35207 3

Mr. Vance responded: “that works for me now i can mix and match and

two one night or how ever depending on how many nights we are there then.Or did

i have to pick out of the bunch.” Captain Crane replied: “We will be leaving from

the same city as my mailing address and it is a pain to transport 6 kids at one time.

If you are interested in two of them, let me know. That way my contact will be

bringing mine, my buddy’s and your two.” Mr. Vance replied: “that helps I don’t

have your original e-mail with the names but i think these will do 13 and 15 or

very close OK thks.”

On February 23, 2005, Captain Crane informed Mr. Vance that they should

meet on March 11, 2005, at the Birmingham Airport. On March 3, 2005, Captain

Crane sent another message to Mr. Vance explaining the details of the meeting. It

provided:

OK, I will be in the baggage claim area of Birmingham

Airport on Friday morning at around 6:30. If I remember

right, there is a small office area off to the left. I will be

3

The minors described by Captain Crane in this e-mail were fictitious.

6

hanging out there and you can meet me. I will wear tan

khaki pants and a dark red (maroon) long sleeve shirt and

carrying a small black suitcase. I have a moustache and

dark hair...about 6 feet tall. We can go from there and

walk to the private aircraft terminal which is about 100

feet away. We will leave Friday around 7:00 am and we

will come back Sunday afternoon, arriving about 5:00

pm. There are several hotels around the airport...a

Holiday Inn Express and a Days Inn which are about a

mile and a half from the terminal (in case you got in

early). If anything should come up (and I am really

trusting you here) here is a number you can reach me at:

205-954-2987 if there is anything else you need just let

me know. By the way, my name is John for when we

meet. Also just to make sure, the address I gave was TI,

P.O. Box 5231, Birmingham, AL 35207

Talk at ya later,

John

On March 11, 2005, Captain Crane went to the Birmingham Airport to meet

Mr. Vance, if he chose to appear. Captain Crane was accompanied by law

enforcement officers who were working undercover as an airline pilot, and as

fellow passengers on the proposed trip to Costa Rica. After Mr. Vance approached

Captain Crane they proceeded to a private air terminal. There, Mr. Vance, Captain

Crane, and his fellow undercover law enforcement officers were arrested. The

officers were arrested to maintain their undercover status.

After Mr. Vance was arrested, Captain Crane searched a bag carried by Mr.

Vance. It contained his driver’s license, his passport, one-half of paper currency in

the amount of $375 and $553 that had not been cut, traveler’s checks totaling $750,

7

and a copy of an e-mail sent by Captain Crane on March 3, 2005, describing where

Mr. Vance should meet him on March 11, 2005. Mr. Vance’s bag also contained

thirteen condoms.

On March 30, 2005, a federal grand jury indicted Mr. Vance for “knowingly

attempt[ing] to travel in foreign commerce from the State of Alabama to a foreign

country for the purpose of engaging in illicit sexual conduct with other persons, in

violation of Title 18, United States Code, Sections 2423(b) and (e).”

II

A

Mr. Vance testified on his own behalf at trial. Mr. Vance’s attorney asked

Mr. Vance why he responded to Captain Crane’s Yahoo! message. Mr. Vance

stated: “Well, I figured by requesting details, I may or may not be able to gather

more information.” Mr. Vance’s attorney inquired further: “And with that

information, you were going to do what?” Mr. Vance replied: “Turn it in to

Yahoo! to try to get it shut down as a group.”

Mr. Vance testified that after he was arrested, law enforcement officers told

him that they were investigating “John.”4 They told him they needed his help in

gathering information about John and the pilot.

4

Mr. Vance referred to Captain Crane as “John” because Captain Crane informed him on

March 3, 2005, that that was his first name.

8

Mr. Vance gave a statement to the officers. It was written down by one of

the officers. The statement reads as follows:

My name is David Vance. My birth date is August

28, 1977. . . . I have an Internet account with SBC

Global. My screen name is

DLVVANCE1@SBCglobal.net. I have a Yahoo! e-mail

address which is rocketpwr11234@yahoo.com.

I began corresponding by e-mail with a man who

said he had a business called Tiny Interest. He advertised

that he would take people to Costa Rica to have sex with

underage children. I corresponded with him to catch him

and turn him into the police.

I told him I wanted to have sex with girls in the

age range of 12 to 15 years old because I knew that was

illegal and that John, with Tiny Interest, would get in

trouble.

I started trying to catch pedophiles when child

pornography sites kept popping up on my computer. I

looked at the pictures and thought they were bad. I

looked at the FBI website and it said not to go to child

pornography websites. But I did not know how to turn

them in if I didn’t go to the websites. I realized I

probably should not have gone to these websites.

My wife has seen some child pornography pictures

on my computer. She did not approve of them but she

trusts me. I have been to Yahoo! groups and message

boards where people were trading child pornography. I

told them I had a collection and I offered to send them

pictures, if they would send some first. None of them

sent any pictures. I did not have any pictures to send

them.

Some groups have child pornography pictures

posted in them. I have also seen child pornography

pictures on Kazaa. I do not like that program because it’s

like going into other people’s computers, so I did not use

it.

9

The last time I used Kazaa to view child

pornography was about 1999 or 2000, when I had my old

computer. I never sent or received child pornography

because I knew it was illegal and I have tried not to

download too much of it. So mostly I look at websites

but did not download them.

When I decided to respond to Tiny Interest, I was

not sure if I really wanted to go through with it. But after

I had sent the money in to John, I felt like I had invested

too much to go back.

I sent John $375 which were bills cut in half. I

told John I wanted to have sex with a 13-year-old and a

15-year-old girl in Costa Rica. When we got there, I was

going to pretend that I was not interested in doing that.

I told my wife that I was going to Tennessee for a

training course. I told my two cousins that I was going to

Costa Rica for spring break. I did leave my wife a note,

however, that I was doing what I was doing for her and

our children.

I know that having sex with a 13-year-old and a

15-year-old girl was wrong in this country. I do not

know that it was wrong to fly outside the country and do

this. But I figured John was doing something illegal.

I have never had inappropriate conduct with

children. I wanted to catch John by going to Costa Rica.

I realize that the FBI and the police do not want people to

try to catch pedophiles because, in doing so, they have to

engage in the same activities as pedophiles.

I make this statement voluntarily. No threats or promises

have been made to me.

This statement was entered into evidence as Defendant’s Exhibit 1.

Mr. Vance also made an oral statement to the police after his arrest. He told

the officers that he was “going to try to report as much as possible and shut down

as many groups as possible.” He further told the officers: “I was going to go over

10

there and then once I got there, I was going to pretend not to be interested, and go

to the nightclubs instead.”

Mr. Vance also testified that he left his wife a letter in a file cabinet in his

home which he had drafted two hours before he left on his trip. The letter stated:

I am doing this to help children all around. I hope

this works and I don’t end up dead. If so I love you guys

very much and I hope u understand why I did this. I love

my children and hope to put people in jail were [sic] they

belong.

I love you Babe

Mr. Vance further testified that prior to his trip, he informed his cousin,

James Aaron St. John, that he “was going to Costa Rica to help children to gather

information to stop John and that if anything happened to me, to take care of my

family.”

On cross examination, the prosecutor questioned Mr. Vance as follows: “I

want to refer, still looking at your interview [with the FBI after the arrest], Page 3,

Defense Exhibit 3 [sic]. You said in that second paragraph, ‘I told my wife I was

going to Tennessee for a training course.’ Do you see that?” Mr. Vance stated:

“Yes, sir.” The prosecutor asked: “Of course that was a lie, wasn’t it?” Mr.

Vance responded: “Yes, sir.” The prosecutor then inquired: “When the FBI asked

you about it, you [didn’t] tell them, I told two cousins that I was going to Costa

Rica as part of my investigation to save children from being raped?” Mr. Vance

11

replied: “That’s correct.” The prosecutor followed-up this question by asking:

“The only thing you told the FBI, the day that you were interviewed about it is, I

was going on spring break to Costa Rica?” Mr. Vance responded: “Yes, sir.”

B

Mr. St. John testified at trial as a defense witness. He testified that he spoke

with Mr. Vance at a restaurant in Clovis, California in March of 2005, and on a

telephone call when Mr. Vance was in Birmingham, Alabama. Mr. Vance’s

counsel asked Mr. St. John: “What was [sic] the details of the conversation?” The

Government objected, stating: “Your Honor, we’re going to object to hearsay at

this point.” Before the District Court could rule on the Government’s objection,

Mr. Vance’s counsel asked the witness: “What did you learn from David based on

that conversation? That he was not going to –.” Government counsel stated:

“Same objection.” The District Court sustained the objection. Mr. Vance’s

counsel did not object to the District Court’s ruling that the extra-judicial statement

was inadmissible, nor did he make an offer of proof, or argue that the testimony

was admissible as a prior consistent statement to prove that his testimony was not a

recent fabrication.

The jury found Mr. Vance guilty as charged in the indictment.

III

12

The presentence investigation report (“PSR”) prepared for the District Court

set forth a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B), on the ground

that Mr. Vance unduly influenced a minor to engage in prohibited sexual conduct;

and a two-level enhancement under U.S.S.G. § 2G1.3(b)(3)(B), based on Mr.

Vance’s use of a computer to entice, offer, or solicit a person to engage in

prohibited sexual conduct with a minor. The PSR recommended that Mr. Vance’s

total offense level should be 32. His criminal history category was III. His

Sentencing Guidelines range was 151 to 188 months.

At his sentencing hearing, Mr. Vance objected to the application of the

enhancements set forth in §§ 2G1.3(b)(2)(B) and 2G1.3(b)(3)(B). He argued that

he could not have unduly influenced the minors as they were fictitious. He also

asserted that he did not use a computer to solicit a minor. He contended that

Captain Crane used a computer to solicit him to engage in prohibited sexual

conduct with a minor.

The District Court overruled Mr. Vance’s objections. It held that the

existence of an actual minor was not necessary for an enhancement under §

2G1.3(b)(2)(B). It also found that the sentencing enhancement was warranted

because Mr. Vance “was directing someone, who had total control, over the variety

of suggested victims to supply the ones that [he] wanted.”

13

The District Court sentenced Mr. Vance to serve 180 months in prison, to be

followed by 300 months of supervised release. Mr. Vance has timely appealed

from the judgment of conviction and the District Court’s sentencing decision. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)-(2).

IV

A

Mr. Vance contends that the District Court erred in sustaining the

Government’s objection to testimony by Mr. St. John regarding the substance of

his conversation with Mr. Vance. He argues before this Court that Mr. St. John

would have testified that Mr. Vance told him he was going to Costa Rica to help

children. Mr. Vance maintains that this statement was admissible as a prior

consistent testimony.

“A district court is granted broad discretion in determining the admissibility

of a prior consistent statement under Fed.R.Evid. 801(d)(1)(B) and will not be

reversed absent a clear showing of abuse of discretion.” United States v. Prieto,

232 F.3d 816, 819 (11th Cir. 2000). However, “[w]here a party makes no

objection in the trial court to the matter complained of on appeal, our review is for

plain error.” Id. Plain error exists “only where (1) there is an error; (2) the error is

plain; (3) the error affects the defendant’s substantial rights in that it was

14

prejudicial and not harmless; and (4) the error seriously affects the fairness,

integrity or public reputation of a judicial proceeding.” Id. Mr. Vance failed to

argue to the District Court that the statement was admissible as a prior consistent

statement. He also failed to make an offer of proof that he would present evidence

that Mr. Vance’s testimony was not a recent fabrication. Therefore, we must

review the District Court’s exclusion of the testimony for plain error.

Pursuant to Rule 801(d)(1)(B) of the Federal Rules of Evidence, a prior

consistent statement by a witness is not hearsay if “[t]he declarant testifies at the

trial or hearing and is subject to cross-examination concerning the statement,” and

the statement is “consistent with the declarant’s testimony and is offered to rebut

an express or implied charge against the declarant of recent fabrication or improper

influence or motive.” There are exceptions to this rule. First, “prior consistent

statements are treated as admissible non-hearsay only if they are offered to rebut a

specific allegation of recent fabrication, not to rehabilitate credibility that has been

generally called into question.” United States v. Drury, 396 F.3d 1303, 1316 (11th

Cir. 2005) (emphasis in original). Second, to be admissible under Rule

801(d)(1)(B) “the [prior] consistent statements must have been made before the

alleged influence, or motive to fabricate, arose.” Tome v. United States, 513 U.S.

150, 158 (1995). This Court has explained that the question “whether a witness

15

had a motive to fabricate when prior consistent statements were made is plainly a

question of fact to be resolved by the trial court based precisely on the particular

circumstances of an individual case” and that determination is entitled to great

deference on review. Prieto, 232 F.3d at 821. The failure of Mr. Vance to argue

that Mr. St. John’s testimony was admissible under Rule 801(d)(1)(B) deprived the

District Court of the opportunity to make a finding regarding whether Mr. Vance

had the motive to fabricate when he spoke to Mr. St. John.

Mr. Vance contends that the Government impliedly accused him of

fabricating his testimony that his intent, in responding to Captain Crane’s

advertisement, was to gather evidence to assist law enforcement. During cross-

examination, the prosecutor asked Mr. Vance why he had not told the officers after

his arrest that he had stated to Mr. St. John that the purpose of his trip was to help

children. Mr. Vance’s written statement indicates that he informed Mr. St. John

and another cousin that he was going to Costa Rica for spring break.

Mr. Vance has failed to demonstrate that he did not have a motive to

fabricate his testimony before he spoke to Mr. St. John. At the time he spoke to

Mr. St. John, Mr. Vance had already sent e-mails to Captain Crane expressing his

interest in engaging in illegal sexual conduct with minors. The District Court did

16

not commit plain error in excluding Mr. St. John’s testimony regarding his

conversations with Mr. Vance.

B

Mr. Vance contends that the District Court erred in overruling his objection

to the imposition of a two-level base offense increase for unduly influencing a

minor to engage in prohibited sexual conduct pursuant to U.S.S.G.

§ 2G1.3(b)(2)(B). He argues that there is no evidence that he exerted any influence

over a minor. He also maintains that § 2G1.3(b)(2)(B) is inapplicable where a

defendant has selected fictitious minors for prohibited sexual conduct from a list

provided by an undercover officer.

This Court reviews a District Court’s interpretation of the Sentencing

Guidelines de novo, and its factual findings for clear error. United States v. Jordi,

418 F.3d 1212, 1214 (11th Cir. 2005). Section 2G1.3(b)(2)(B) provides that the

base offense level should be increased by 2 if “a participant [of the crime]

otherwise unduly influenced a minor to engage in prohibited sexual conduct.”

Application Note 1 of § 2G1.3 provides that “‘Minor’ means . . . an individual,

whether fictitious or not, who a law enforcement officer represented to a

participant (i) had not attained the age of 18 years, and (ii) could be provided for

the purposes of engaging in sexually explicit conduct.”

17

This Court held in United State v. Root, 296 F.3d 1222, 1233 (11th Cir.

2002) that, under U.S.S.G. § 2A3.2 (2000),5 “an undercover officer playing the role

of a minor victim qualifies as a victim, thereby making an actual victim

unnecessary.” This Court reasoned that § 2A3.2 (2000) was enacted for the

purpose of “ensuring that offenders who are apprehended in undercover operations

are appropriately punished.” Id. at 1234 (internal quotation marks omitted).

This Court held in Root that “when an undercover officer is the recipient of

communications related to the commission of a sex crime offense and no actual

child is involved, a district court considering an undue influence enhancement,

under § 2A3.2(b)(2)(B), must focus on the offender’s conduct.” Id. The Court

explained that a contrary “interpretation would [] undermine the Sentencing

Commission’s stated purpose in amending the definition of victim under § 2A3.2

of ensuring that offenders who are apprehended in an undercover operation are

appropriately punished.” Id. (internal quotation marks omitted).6

5

Application Note 1 to U.S.S.G. § 2A3.2 (2000) provided that: “Victim” includes “an

undercover law enforcement officer who represented to a participant that the officer had not attained

the age of 16 years.”

6

In his brief, Mr. Vance reminds us that two of our sister Circuits have expressly declined

to follow this Court’s holding in Root that the sentencing enhancement set forth in § 2A3.2(b)(2)(B)

is applicable in a sting operation where the minor is fictitious. See United States v. Mitchell, 353

F.3d 552, 562 (7th Cir. 2003) (holding that “[w]here the state of mind of the victim is critical, and

perhaps dispositive, it simply cannot apply in the case where the victim has no state of mind

whatsoever because she does not exist”); United States v. Chriswell, 401 F. 3d 459, 469 (6th Cir.

2005) (holding that Ҥ 2A3.2(b)(2)(B) is not applicable where the victim is an undercover agent

representing himself to be a child under the age of sixteen”). We, of course, are bound to follow the

18

In United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), this Court held

that sentencing enhancements can be applied even though the defendant only

communicated with a male undercover officer who was posing as the father of a

fictitious thirteen-year-old daughter. Id. at 1289-90. In Murrell, the defendant was

convicted, under 18 U.S.C. § 2422(b), of “using a facility of interstate commerce to

attempt to knowingly persuade, induce, entice, or coerce a minor to engage in

unlawful sexual activity.” Id. at 1284. This Court held that the District Court

properly enhanced the defendant’s sentence under U.S.S.G. § 2G1.1(b)(2)(B)

(2003), a similar Sentencing Guidelines provision to § 2G1.3(b)(2)(B). Id. at 1289.

The 2003 version of § 2G1.1(b)(2)(B) 7 provided that a defendant should receive a

two-level sentencing enhancement for “an offense involving a victim between the

ages of twelve and sixteen.” Id. at 1288 (internal quotation marks omitted).

This Court explained in Murrell that “[b]ecause the Sentencing Commission

specifically provided that undercover officers are victims for purposes of § 2G1.1,

law of this Circuit. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“it is the

firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first

panel to address an issue of law, unless and until that holding is overruled en banc or by the Supreme

Court”).

7

Section 2G1.1(b)(2)(B) (2003) provides that for crimes relating to “Promoting A

Commercial Sex Act or Prohibited Sexual Conduct” “[i]f the offense involved a victim who had .

. . (B) attained the age of 12 years but not attained the age of 16 years, increase [base offense level]

by 2 levels.”

19

we deduce that the enhancement is directed at the defendant's intent, rather than

any actual harm caused to a genuine victim.” Id. at 1289 (internal quotation marks

omitted).8 “Thus, the enhancement applies whether the minor ‘victim’ is real,

fictitious, or an undercover officer.” Id.

In United States v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005), this Court

affirmed the District Court’s decision to enhance a defendant’s sentence under

U.S.S.G. § 2A3.1(b)(2)(A) (2003), after the defendant “pleaded guilty to traveling

in interstate commerce with the intent to have sex with a minor, in violation of 18

U.S.C. § 2423(b).” Id. at 1265. The defendant in Lebovitz responded to an internet

bulletin board message posted by then Lt. John Crane of the Birmingham Police

Department as part of a sting operation to catch pedophiles preying on children.

Id. The message was entitled “teengirls4men.” Id. Lt. Crane, using an alias, e-

mailed a response to the defendant, posing as a father with three fictitious children

under the age of twelve who would be available for sex. Id. at 1265-66. Section

2A3.1(b)(2)(A) (2003) provided that “[i]f the victim had not attained the age of

8

Application Note 1 to U.S.S.G. § 2G1.1 (2003) provided that:

‘Victim’ means a person transported, persuaded, induced, enticed, or

coerced to engage in, or travel for the purpose of engaging in, a

commercial sex act or prohibited sexual conduct, whether or not the

person consented to the commercial sex act or prohibited sexual

conduct. Accordingly, “victim” may include an undercover law

enforcement officer.

20

twelve years” the base offense level should be “increase[d] by 4 levels.”9 Relying

on Root, this Court held that an enhancement under § 2A3.1(b)(2)(A) was

applicable. Id. at 1268-70. It explained that “whether a victim is fictitious is

irrelevant to the application of a federal statute or sentencing guideline prohibiting

sexual conduct with a minor.” Id. at 1268.

Here, Mr. Vance used his superior knowledge and resources in an attempt to

unduly influence the fictitious minors. He used his knowledge of computers and

the internet to contact people whom he believed would supply minors for sexual

conduct. He also used his financial resources to pay the feigned procurer to act as

his agent in influencing the minors to satisfy his sexual desires.

Mr. Vance contends that § 2G1.3(b)(2)(B) is inapplicable to his conduct

because he was not a direct participant in unduly influencing a minor to engage in

prohibited sexual conduct. He argues that he “merely agreed, through a third party,

to travel to Costa Rico to have illicit intercourse.” We disagree. Mr. Vance

participated in attempting to unduly influence a minor by employing “John” to

supply minors to engage in sexually explicit conduct. The fact that an agent was

used as an intermediary to effectuate Mr. Vance’s influence over the minors

supports the conclusion of undue influence. Mr. Vance used his superior

9

The 2003 version of § 2A3.1 provided that: “‘Victim’ includes an undercover law

enforcement officer.”

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knowledge and financial resources to out-source the task of asserting undue

influence on a minor.

As this Court explained in Lebovitz and Murrell, in interpreting similar

Guidelines sections, the focus is on the defendant’s intent, not whether the victim

is real or fictitious. See Lebovitz, 401 F.3d at 1269-70; Murrell, 368 F.3d at 1289.

Here, the jury rejected Mr. Vance’s defense and found that Mr. Vance intended to

have sexual contact with real minors. The fact that the minors actually were

fictitious does not change the applicability of the two-level enhancement pursuant

to § 2G1.3(b)(2)(B). Accordingly, the District Court did not err in enhancing Mr.

Vance’s base offense level pursuant to U.S.S.G. § 2G1.3(b)(2)(B).

C

Mr. Vance also maintains that the District Court erroneously applied the

Sentencing Guidelines enhancement set forth in U.S.S.G. § 2G1.3(b)(3)(B)

because the District Court erroneously determined that it applies to the use of a

computer by an undercover officer to provide the recipients of his internet message

with the opportunity of hiring him to procure minors for prohibited sexual conduct.

Pursuant to § 2G1.3(b)(3)(B), a District Court must apply a two-level

increase to a defendant’s base offense level “[i]f the offense involved the use of a

computer or an interactive computer service to . . . entice, encourage, offer, or

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solicit a person to engage in prohibited sexual conduct with the minor.”

Application Note 4 to § 2G1.3 explains that “[s]ubsection (b)(3) is intended to

apply only to the use of a computer or interactive computer service to

communicate directly with a minor or with a person who exercises custody, care,

or supervisory control of the minor.”

As discussed above, in Murrell, an undercover officer posed as the father of

a thirteen-year-old girl whom he agreed to rent to Murrell for prohibited sexual

conduct. 368 F.3d at 1284-85. In its sentencing decision, the District Court

imposed a two-level enhancement, pursuant to § 2G1.1(b)(5), because Murrell

communicated with the “father,” by using a computer. Id. at 1285. This Court

affirmed the enhancement, holding that, because Murrell used a computer to

communicate with the “father” and Murrell likely believed that the “father”

exercised control and authority over his minor daughter, the enhancement was

proper under § 2G1.1(b)(5)(A) and its commentary. Id. at 1289-90.

In this matter, Mr. Vance used a computer to direct his agent to provide

minor girls for illicit sexual conduct. Mr. Vance’s argument that the enhancement

is inapplicable in his case because he did not personally solicit the minors ignores

the plain meaning of the language of § 2G1.3(b)(3)(B).

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Here, as in other sting operations, Captain Crane, posing as “John,” posted a

message on a web site to provide sexual predators the opportunity to use “John” as

their agent to provide minors for sexual activities. Mr. Vance took the opportunity

provided by Captain Crane. These facts squarely fit into the plain language of

§ 2G1.3(b)(3)(B). The District Court found that Mr. Vance believed that “John”

had supervisory control over the minors because Captain Crane represented that he

“offer[ed] a variety of” underage girls and he would “line up the appropriate” girls

and make them available for Mr. Vance upon arriving in Costa Rica. Accordingly,

we conclude that the District Court did not err in applying a two-level

enhancement, pursuant to § 2G1.3(b)(3)(B), to Mr. Vance’s base offense level.

AFFIRMED.

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