United States v. Stacy , 269 F. App'x 322 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY DONALD STACY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (05:06-cr-00013-D)
Argued: February 1, 2008 Decided: March 12, 2008
Before MICHAEL and SHEDD, Circuit Judges, and Liam O’GRADY, United
States District Judge for the Eastern District of Virginia, sitting
by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Harris Craven, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Stacy plead guilty to a five count indictment charging
him with transmission of child pornography in violation of 18
U.S.C. § 2252(a)(1) (Count 1), receipt of child pornography in
violation of 18 U.S.C. § 2252(a)(2) (Count 2), possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3),
transportation of obscene matters over the Internet in violation of
18 U.S.C. § 1462 (Count 4), and transportation of obscene matters
for sale or distribution in violation of 18 U.S.C. § 1465 (Count
5), and was sentenced to 360 months in prison.1 On appeal, Stacy
argues that the district court improperly imposed a five-point
offense level enhancement pursuant to the U.S. Sentencing
Guidelines Manual § 2G2.2(b)(5), for engaging in a pattern of
activity involving the sexual abuse or exploitation of a minor.
Finding no error, we affirm.
I.
During an Immigration and Customs Enforcement investigation of
trafficking of child pornography via the Internet in 2005, agents
obtained and executed search warrants at Stacy’s home and
1
Stacy’s adjusted offense level was a 42, comprised of a base
offense level of 22, 23 levels of enhancements, less a three level
reduction for acceptance of responsibility. Stacy was a criminal
history category I, therefore the applicable guideline custody
range was 360 months to life in prison. U.S.S.G. ch. 5, pt. A,
introductory cmt. (2007).
2
workplace. Forensic examination of the items seized revealed 838
images and 74 video files depicting child pornography of male and
female children between the ages of 8 months and 14 years. The
investigation also revealed a large number of graphic, explicit,
and obscene conversations via an Internet instant message system
between Stacy and a variety of individuals that discussed Stacy’s
desire and attempts to sexually abuse minor children.
The Court found within those electronic communications,
language constituting substantial steps toward the commission of
the underlying offense and as a result determined that Stacy
attempted to engage in two or more acts involving the sexual abuse
or exploitation of a minor.
At sentencing the district court therefore imposed, over
Stacy’s objection, a five-point enhancement for engaging in a
pattern of activity involving the sexual abuse or exploitation of
a minor pursuant to the U.S.S.G. § 2G2.2(b)(5).
II.
We review sentencing enhancements on a mixed standard of
review: the findings of fact are subject to a clearly erroneous
standard, and the court’s interpretation of the sentencing
guidelines is reviewed de novo. See United States v. Moreland, 437
F.3d 424, 433 (4th Cir. 2006); United States v. Jones, 308 F.3d
425, 427 (4th Cir. 2002).
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III.
If a defendant is engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor2, § 2G2.2(b)(5) of the
Sentencing Guidelines provides for a five-point enhancement to the
base level offense. U.S.S.G. § 2G2.2(b)(5). The enhancement
applies if the district court finds a “pattern of activity”, which
the Sentencing Guidelines define as two or more separate instances
of the sexual abuse or sexual exploitation of a minor by the
defendant. U.S.S.G. § 2G2.2 cmt. n. 1. Stacy concedes one
instance of sexual exploitation of a minor toward the enhancement,
as Stacy admits to sending a pornographic photograph over the
Internet to a sixteen year old. Accordingly, only one more
instance of such conduct is required for the five-point
enhancement. Stacy argues, however, that his Internet instant
messaging conversations, where the district court found further
conduct constituting a pattern of activity, were mere bragging and
2
Sexual abuse or exploitation is defined by the Sentencing
Guidelines in relevant part, as conduct described in 18 U.S.C. §
2242(b) which provides:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or coerces
any individual who has not attained the age of 18 years,
to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense,
or attempts to do so, shall be fined under this title and
imprisoned for not less than 10 years or for life. 18
U.S.C. § 2242 (2006)(emphasis added).
4
idle Internet chatter, and therefore insufficient to support the
sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(5).
The district court disagreed and found that several of these
conversations constituted attempts to engage in sexual abuse or
exploitation of a minor. Attempt requires a culpable intent to
commit the crime and a substantial step towards its commission.
United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996).
In one particular instant message conversation between Stacy
and an individual who called himself “uncutdaddy32", Stacy set up
a meeting with “uncutdaddy32" who agreed to bring his 12 year old
daughter, who has multiple sclerosis and is confined to a
wheelchair, to Stacy so that Stacy could sexually abuse her. Stacy
organized the meeting at a specific Cracker Barrel restaurant at
5:00 pm on a specific date, described the type of car he drove,
obtained the description of the vehicle “uncutdaddy32" drove so
that they could identify each other, and planned the sexual abuse
of “uncutdaddy32"’s 12 year old wheelchair bound disabled child.
Further, a subsequent instant message conversation supports the
Government’s position that this planned encounter actually
occurred. This conduct goes far beyond the mere Internet chat room
banter Stacy claims.
The record also contains instant messaging conversations
between Stacy and other individuals where Stacy and the individuals
discuss the location of their homes, the distance between them,
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whether they are able to travel, and possible locations to meet so
that Stacy could sexually abuse these individual’s minor children.
The district court correctly found that several of these instant
message conversations constituted attempts to engage in unlawful
conduct. (Joint App. Vol. I at 104-12; 118-20).
We conclude that the district court did not clearly err in its
fact-finding and that the facts of record support the district
court’s imposition of the five-point sentencing enhancement. This
holding is consistent with the holdings of several of our sister
circuits.3
IV.
In light of the foregoing, we find no reversible error in the
district court’s imposition of a five-point enhancement for
engaging in a pattern of activity involving the sexual abuse or
exploitation of a minor. Accordingly, Stacy’s sentence is
affirmed.
AFFIRMED
3
See United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir.
2005)(holding that defendant crossed the line to inducement when he
made arrangements to meet the minor); United States v. Bailey, 228
F.3d 637, 639-640 (6th Cir. 2000)(finding sufficient evidence of a
substantial step toward enticing minors where defendant sent e-
mails to minors proposing oral sex but did not ever travel to meet
the girls); United States v. Williams, 183 F. App’x 246, 247-48 (3d
Cir. 2006)(finding sufficient evidence to support the five-point
sentencing enhancement from defendant’s conversations in online
chat rooms that, inter alia, attempted to set up meeting times with
minors and conspired with several adults to have sexual contact
with their minor children).
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