# United States v. John Allen Root

> Court of Appeals for the Eleventh Circuit · July 10, 2002 · 296 F.3d 1222

URL: https://www.frixlaw.com/law-library/cases/9415691

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. John Allen ROOT, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 10, 2002
- **Citations:** 296 F.3d 1222; 2002 U.S. App. LEXIS 13852; 2002 WL 1473142
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennedy
- **Judges:** Anderson, Hull, Kennedy
- **Cited by:** 114 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in United States v. Jerchower.
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9415691

## How later opinions describe it (automated extraction)

- 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; use…
- 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…
- 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
- holding that the § 2A3.2(b)(2)(B) enhancement applied when the defendant communicated with an undercover law enforcement officer portraying a 13-year-old girl

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9415691. Public record. Not legal advice.