holding that an “actual minor victim is not required for an attempt conviction under 18 U.S.C. § 2422(b),” and that defendant’s “belief that a minor was involved is sufficient to sustain an attempt conviction”
How later courts described this case
- holding that an “actual minor victim is not required for an attempt conviction under 18 U.S.C. § 2422(b),” and that defendant’s “belief that a minor was involved is sufficient to sustain an attempt conviction”
- affirming district court’s finding that defendant failed to rebut presumption of undue influence, where defendant displayed increased knowledge to influence the “minor” by describing sexual activities in detail and stating that sex would “feel good” and not cause her pain; used persuasive powers, in part by stating that he would be “gentle” and “patient”; and used superior resources to influence the “minor” by using his office computer to send instant messages and send pictures of himself to her, driving his car across states to meet her, and telling her that she would not need to worry about bringing money to them meeting
- noting that “this Court has affirmed attempt convictions when the defendant could not have achieved the final required act because it would have been impossible to commit the actual crime” and citing cases in which the defendant was convicted for attempt even though sham drugs were used
- holding that the district court may employ, pursuant to U.S.S.G. § 2A3.2, note 5, a rebuttable presumption of undue influence when there is a ten-year age difference
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in United States v. Jerchower
296 F.3d 1222, 1227 (11th Cir.2002) (holding that a defendant may be convicted of § 2422(b) without having engaged in conduct involving an actual minor), superseded by statute on other grounds as recognized in United States v. Jerchower, 631 F.3d 1181, 1186-87 (11th Cir.2011).
Court of Appeals for the Eleventh CircuitJan 25, 20114 citing opinionsby statuteother groundsRead itSuperseded on other grounds by United States v. Jerchower, 631 F.3d 1181 (2011)
296 F.3d 1222, 1227 (11th Cir.2002), superseded on other grounds as recognized in United States v. Jerchower, 631 F.3d 1181, 1186-87 (11th Cir.2011).
Declined to follow by United States v. John Mitchell, 353 F.3d 552 (2003)
We decline to follow the holding in Root.9
The opinion
KENNEDY, Circuit Judge,
concurring in part and dissenting in part:
I concur in the court’s opinion except for the sentencing enhancement of USSG § 2A3.2(b)(2)(B) which provides: “A participant otherwise unduly influenced the victim to engage in prohibited sexual conduct.” By its terms, it appears to be intended to increase the penalty where' criminal sexual activity has taken place, been engaged, in, or at least the victim has been influenced to meet for that purpose so one can measure whether the victim has been unduly influenced. According to the commentary,” “[i]n determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant’s *1237 influence over the victim compromises the voluntariness of the victim’s behavior.” Where, as here, no criminal sexual activity has occurred and the victim was not in fact influenced by defendant, the court, applying the presumption because of the vast difference in age, has had to substitute for the factual finding called for in the commentary whether it thinks defendant’s conduct would have unduly influenced a thirteen-year old hypothetical victjpi. The other enhancements in this section all lend themselves to attempts and can be measured by defendant’s conduct. This is the only enhancement that requires examination of the effect on the victim.
I would find the enhancement inapplicable here.