United States v. Butler ( 2023 )

Case: 22-20171 Document: 00516705177 Page: 1 Date Filed: 04/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2023
No. 22-20171 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Thomas Douglas Butler,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-411-1
Before Ho, Oldham, and Douglas, Circuit Judges.
James C. Ho, Circuit Judge:
Under the federal Sentencing Guideline that governs the sexual
exploitation of a minor, a two-level enhancement applies to a defendant’s
base offense level if the underlying offense involves “the commission of a
sexual act or sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A). The Application
Notes to the Guideline expressly incorporate the definition of “sexual
contact” that appears in 18 U.S.C. § 2246(3). And that statute defines
“sexual contact” to mean “the intentional touching, either directly or
through the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person with an intent to abuse, humiliate, harass, degrade, or
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arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)
(emphasis added).
Our circuit has not yet addressed whether “sexual contact” under
U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes an act of
masturbation. But four other circuits have answered in the affirmative. See
United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009) (“[T]he plain
meaning of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C.
§ 2246(3) includes the act of masturbating.”); United States v. Shafer, 573
F.3d 267, 273–74 (6th Cir. 2009) (“‘[S]exual contact,’ as defined by §
2246(3), includes self-masturbation.”); United States v. Pawlowski, 682 F.3d
205, 212 (3rd Cir. 2012) (“[T]he language of [§ 2246(3)] is unambiguous: it
is clear that ‘of any person’ includes a defendant himself and does not require
the touching of the victim.”); United States v. Raiburn, 20 F.4th 416, 422 (8th
Cir. 2021) (“Following our sister circuits, we . . . hold that the plain meaning
of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3)
includes the act of masturbating.”) (quotations omitted).
We see no reason to disagree with the consensus of our sister circuits,
and Butler provides none. Accordingly, we join our sister circuits and hold
that “sexual contact” in this context includes masturbation. We affirm.
I.
Thomas Douglas Butler initiated inappropriate relationships with two
minor victims and coerced them into engaging in sexually explicit conduct.
Butler began messaging the first minor victim (“MV1”), a fourteen-
year-old girl, through the FaceFlow application and text messaging. He then
drove from Houston to San Antonio to pick up MV1, and she snuck out from
her house to travel with him to Houston. MV1’s mother contacted the San
Antonio Police Department once she realized that MV1 was missing. The
FBI obtained MV1’s mother’s consent to search MV1’s phone. In it, the FBI
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discovered messages between MV1 and Butler that revealed their
preparations to meet in secret and abscond. FBI agents tracked Butler to a
hotel in Houston, where they arrested him. MV1 told a Child Forensic
Interviewer that Butler had kept her constantly intoxicated and had sex with
her eight times during the four days he kept her at the hotel.
FBI agents searched the hotel room—which Butler had been renting
for a year—and seized three laptops, three iPhones, and one thumb drive.
One of the laptops contained child pornography.
The search of the laptop also revealed that Butler had groomed
another minor victim (“MV2”), a fifteen-year-old girl residing in North
Carolina. Butler had contacted MV2 through online platforms and had
coerced her into engaging in sexually explicit conduct on camera while video
chatting with him. Butler recorded videos of these interactions and saved
them on his laptop. The videos depicted MV2 masturbating, while screen-
in-screen videos depicted Butler masturbating simultaneously. FBI agents
contacted MV2’s parents and scheduled a child forensic interview with
MV2. During the interview, MV2 explained that she believed Butler was
depressed, and that he would say things like “they’re coming to get me” and
“I’m going to shoot myself” to control her.
A grand jury indicted Butler on one count of coercion and enticement,
in violation of 18 U.S.C. § 2422(b), and one count of sexual exploitation of
children, in violation of 18 U.S.C. §§ 2251(a) and (e). Butler pleaded guilty
to these charges. As a factual basis for his guilty plea, Butler admitted that
he “groomed minor victim two and used emotional ploys, such as threatening
suicide, to gain control of her actions,” and that he also “threatened to send
some of the videos to her parents if she did not continue to engage in online
sexual chats” with him. He also admitted that the videos “were obtained
during Skype Chats” with MV2.
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The presentence investigation report (“PSR”) recommended a two-
level enhancement under U.S.S.G. § 2G2.1(b)(2)(A), because the offense
“involved the commission of a sexual act or sexual contact.” The PSR also
recommended a two-level enhancement under U.S.S.G. § 2G2.1(b)(6)(B)(i),
because the offense “involved the use of a computer to solicit the
participation of MV2 to engage in sexually explicit conduct.” The PSR
calculated a total offense level of 42, which—combined with a criminal
history category of IV—yielded a Guidelines range of 360 months to life
imprisonment. Butler objected to the first enhancement, arguing that his
crime did not involve “sexual contact” because he never had physical contact
with MV2.
Butler renewed this objection at his sentencing hearing. But his
attorney told the district court that, even if his objection was sustained, “it
would not impact the guidelines range.” He described his argument as
“somewhat academic” and reiterated that “it won’t impact the guidelines.”
After hearing the Government’s response, the district court overruled
Butler’s objection. After stating that it was “mindful of” facts such as
Butler’s “significant criminal history,” the district court sentenced him to
480 months of imprisonment. Butler timely appealed.
II.
On appeal, Butler argues that the district court erred in imposing the
§ 2G2.1(b) enhancements. We address each enhancement in turn.
A.
Butler argues that the district court erred in applying the two-level
enhancement under § 2G2.1(b)(2)(A) because his crimes did not involve a
“sexual act” or “sexual contact.” He contends that a “sexual act” requires
the intentional touching of another person, while “sexual contact” requires
physical contact with another person. Butler maintains that he did not touch
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or come into physical contact with MV2, and that MV2’s masturbation does
not constitute “sexual contact.” He also argues that there is no evidence that
MV2 masturbated with the intent to arouse or gratify his sexual desires.
Because Butler preserved this argument in the district court, our
review of the Guidelines application is de novo. See United States v. Alcantar,
733 F.3d 143, 146 (5th Cir. 2013). We review factual findings for clear error.
Id. In making factual findings, “a district court may consider any information
that bears sufficient indicia of reliability to support its probable accuracy.”
United States v. Landreneau, 967 F.3d 443, 451 (5th Cir. 2020) (quotations
omitted).
The Guidelines provide for a two-level enhancement “[i]f the offense
involved (A) the commission of a sexual act or sexual contact.” U.S.S.G. §
2G2.1(b)(2)(A). The Application Notes incorporate the definitions of
“sexual act” and “sexual contact” stated in 18 U.S.C. § 2246(2)–(3). Id.cmt. n.2. Section 2246(2) defines “sexual act” as “(D) the intentional
touching, not through the clothing, of the genitalia of another person who has
not attained the age of 16 years with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. §
2246(2)(D). Section 2246(3) defines “sexual contact” as “the intentional
touching, either directly or through the clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.” Id. § 2246(3).
Whether masturbation constitutes “sexual contact” is an issue of first
impression for our circuit. Butler acknowledges that other circuits have
already addressed this issue. What he omits is that those circuits have
uniformly interpreted “sexual contact” to include masturbation. See supra,
at 2. And they have interpreted “sexual contact” to include both
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masturbation by the defendant and the coerced masturbation of a victim. See
Aldrich, 566 F.3d at 979 (defendant); Shafer, 573 F.3d at 279 (victim);
Pawlowski, 682 F.3d at 211–13 (defendant); Raiburn, 20 F.4th at 423–24 (both
defendant and victim); United States v. Sanchez, 30 F.4th 1063, 1075 (11th
Cir. 2022) (victim), cert. denied, 143 S. Ct. 227 (2022).
We are persuaded by our sister circuits. The plain meaning of “sexual
contact” includes masturbation, because that act necessarily entails the
“intentional touching . . . of the genitalia . . . of any person with an intent to .
. . arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)
(emphasis added). And that is so whether the act is performed by the
defendant or by the victim.
This is further confirmed by Congress’s deliberate decision to use
different language to define a “sexual act.” Congress limited the definition
of a “sexual act” to the touching “of another person”—but it expanded the
scope of “sexual contact” to the touching “of any person.” Compare 18
U.S.C. § 2246(2)(D) (emphasis added), with 18 U.S.C. § 2246(3) (emphasis
added). See also Pawlowski, 682 F.3d at 212 (“[W]here Congress includes
particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”). “‘Another person’
clearly requires at least two individuals to be involved in the act. Thus,
because Congress chose to use different language when defining ‘sexual
contact,’ it seems clear that Congress intended not to limit ‘sexual contact’
in the same way it limited ‘sexual act.’” Shafer, 573 F.3d at 273. The
definition of “sexual contact” thus sweeps in masturbation by either a victim
or a defendant—the “intentional touching . . . of the genitalia . . . of any
person.” 18 U.S.C. § 2246(3).
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Here, it’s undisputed that Butler’s crimes involved masturbation by
MV2. Butler denies that MV2 masturbated at his request or for his sexual
gratification. But Butler ratified the government’s summary of the facts,
which states that he “groomed minor victim two and used emotional ploys,
such as threatening suicide, to gain control of her actions, and he also
threatened to send some of the videos to her parents if she did not continue
to engage in online sexual chats with the defendant.”
Butler also appears to argue that MV2 lacked the intent to arouse or
gratify him because there is no evidence that MV2 was able to see him
masturbating. But Butler admitted that the videos “were obtained during
Skype Chats” and included screen-in-screen videos or screen swapping
videos depicting Butler masturbating as he watched MV2 masturbate. It was
reasonable for the district court to conclude that MV2 was able to see Butler
masturbating.
Even if MV2 didn’t see Butler masturbating, she knew that Butler was
watching—after all, she acted at his behest. So it’s reasonable to believe that
MV2 intended to arouse or gratify his sexual desires. Moreover, § 2246(3)
only requires that she intended to “arouse or gratify the sexual desire of any
person,” including herself. 18 U.S.C. § 2246(3) (emphasis added). It was
reasonable to believe that, even if MV2 didn’t intend to arouse or sexually
gratify Butler, she meant to arouse or sexually gratify herself. See Shafer, 573
F.3d at 278 (“[S]elf-masturbation is an act meant to invoke a sexual response
in the performer or a viewer.”). We see no error in the district court finding
that MV2 masturbated with the intent to arouse or sexually gratify “any
person.”
Accordingly, the district court did not err in applying U.S.S.G. §
2G2.1(b)(2)(A) to Butler’s sentence.
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B.
Butler also argues that the district court erred in applying the two-
level enhancement under § 2G2.1(b)(6)(B)(i) because the Government failed
to present evidence that he solicited MV2’s participation in sexually explicit
conduct. But Butler failed to preserve this argument in the district court, so
we review only for plain error. See United States v. Medina-Anicacio, 325 F.3d
638, 643 (5th Cir. 2003).
“Under the plain error analysis, this Court may only reverse based on
a forfeited error when there is: (1) an error; (2) that is clear or obvious; and
(3) that affects the appellant’s substantial rights.” Id. at 647. “If the
appellant establishes these factors, this Court may exercise its discretion to
correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.The Guidelines provide for a two-level enhancement if, “for the
purpose of producing sexually explicit material,” the offense of conviction
involved “the use of a computer or an interactive computer service to (i)
persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage
in sexually explicit conduct, or to otherwise solicit participation by a minor in
such conduct.” U.S.S.G. § 2G2.1(b)(6)(B)(i).
Our inquiry ends at step one of the plain error analysis. The parties
agree that the Guidelines themselves do not provide a definition for
“solicit.” Butler proposes that “solicit” means to “ask, induce, advise, or
command (a person) to do something.” The Government suggests that
“solicit” means to entice or lure. But under either definition, Butler plainly
solicited MV2’s participation in sexually explicit conduct. As noted earlier,
Butler acknowledged that he “groomed” MV2, used “emotional ploys, such
as threatening suicide, to gain control of her actions,” and “threatened to
send some of the videos to her parents if she did not continue to engage in
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online sexual chats” with him. Accordingly, the district court did not err in
finding that Butler solicited MV2’s participation in sexually explicit conduct.
***
We affirm.
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