United States v. Ryan K. Noble

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10633
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN K. NOBLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cr-00068-MCR-1
____________________
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2 Opinion of the Court 21-10633
Before WILSON, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
In 2020, a federal grand jury indicted Noble on two counts:
(1) distributing child pornography, in violation of 18 U.S.C. §§
2252A(a)(2) and (b)(1); and (2) possessing child pornography, in vi-
olation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Noble pleaded
guilty as charged. The district court sentenced Noble to a prison
term of 144 months. Noble now appeals his sentence, arguing that
the district court improperly applied a five-level sentencing en-
hancement to his base offense level. Because the district court did
not err, we affirm.
I.
On October 21, 2020, Noble pleaded guilty to one count of
distributing child pornography and one count of possessing child
pornography. The presentence investigation report (PSI) recom-
mended that the district court impose the five-level enhancement
under U.S.S.G.§ 2G2.2(b)(5). The PSI made this recommendation
because Noble engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor on two or more separate instances.
See § 2G2.2, application notes (n.1) (explaining that a pattern of ac-
tivity results from any combination of two or more separate in-
stances of the sexual abuse or exploitation of a minor by the de-
fendant). The PSI recommended the enhancement based on con-
versations that Noble exchanged over the social media platform In-
stagram with two different users.
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21-10633 Opinion of the Court 3
Noble objected to this enhancement, contending that there
was insufficient evidence to demonstrate that under § 2G2.2 his
conversations with these users “involved anything other than the
distribution of child pornography, conduct excluded from the defi-
nition of ‘sexual abuse or exploitation.’” The government re-
sponded to Noble’s objection to the § 2G2.2(b)(5) enhancement by
filing a letter to which it attached three exhibits. Each exhibit was
a printout of a separate conversations over Instagram between No-
ble and adult women regarding each woman’s child. Noble did not
object to the factual accuracy of the exhibits.
During sentencing, the government argued that the district
court should impose the § 2G2.2(b)(5) enhancement because in
each conversation Noble attempted to convince women to sex-
ually abuse their respective child. The first exhibit was a conversa-
tion between Noble and an Instagram user called “justnitnee.” In
this exchange, Noble requested that “justnitnee” produce videos of
children wearing sexy clothing. “Justnitnee” and Noble settled
upon a price of $700 for these videos. Noble also requested a photo
of a child to which “justnitnee” sent one of a child appearing to be
under the age of two. Noble conceded that this conversation
counted as one instance of an attempt to commit an unlawful act
under the guidelines.
The second and third exhibits are conversations between
Noble and another Instagram user called “smokingkittens2011.” In
the first conversation, Noble encouraged “smokingkittens2011” to
sexually abuse her child and offered money to show that he was
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4 Opinion of the Court 21-10633
“serious” about his request. In the second conversation, Noble
again encouraged “smokingkittens2011” to sexually abuse her
child. “Smokingkittens2011” initially agreed to fulfill Noble’s re-
quests. However, she changed her mind because her son was “just
too young right now,” to which Noble responded that the whole
point was to “start him young,” and to “corrupt him” regarding
sexual pleasure.
The district court held that Noble qualified for a five-level
enhancement based on two separate instances of sexual abuse or
exploitation of a minor by the defendant. The first qualifying in-
stance—which Noble conceded was a qualified activity under the
guidelines—was his conversation with “justnitnee.” The second
qualifying instance was the first conversation Noble had with
“smokingkittens2011.”
On appeal, Noble again concedes that his conversation with
“justnitnee” was one of two necessary instances of conduct war-
ranting the enhancement. Noble maintains, however, that his first
conversation with “smokingkittens2011” was not a second qualify-
ing instance of conduct warranting the enhancement. Noble rea-
sons that the government failed to prove by a preponderance of the
evidence that Noble’s conduct amounted to a pattern of “sexual
abuse or exploitation.” Noble therefore argues that the district
court erred in finding that his first conversation with “smokingkit-
tens2011” qualified as conduct warranting application of the en-
hancement.
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21-10633 Opinion of the Court 5
II.
We review the district court’s factual findings for clear error.
See United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). A
factual finding is clearly erroneous if, after reviewing all the evi-
dence, we are left with a definite and firm conviction that a mistake
has been made. Id. Further, we review the district court’s inter-
pretation of sentencing guidelines and its application to the facts de
novo. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).
The government bears the burden of establishing the facts
necessary to support a sentencing enhancement by a preponder-
ance of the evidence. United States v. Askew, 193 F.3d 1181, 1183
(11th Cir. 1999). District courts may base their findings of fact on
undisputed statements in the PSI and facts admitted by a defend-
ant’s plea of guilty. United States v. Wilson, 884 F.2d 1355, 1356
(11th Cir. 1989).
Under the United States Sentencing Guidelines, a five-level
enhancement applies if the defendant engaged in a pattern of activ-
ity involving the sexual abuse or exploitation of a minor. §
2G2.2(b)(5). “Pattern of activity involving the sexual abuse or ex-
ploitation of a minor” is defined as any combination of two or more
separate instances of sexual abuse or sexual exploitation of a minor
by the defendant, whether the abuse or exploitation “(A) occurred
during the course of the offense; (B) involved the same minor; or
(C) resulted in a conviction for such conduct.” § 2G2.2, application
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6 Opinion of the Court 21-10633
notes (n.1). Further, “Sexual abuse or exploitation” includes con-
duct that violates 18 U.S.C. § 2422(b). Id. This court has held that
under 18 U.S.C. § 2422(b) “[i]t is a federal crime to use the internet
to knowingly attempt to persuade, induce, entice, or coerce a mi-
nor to engage in unlawful sexual activity.” United States v. Hor-
naday, 392 F.3d 1306, 1308 (11th Cir. 2004).
III.
On appeal, Noble argues that the court improperly calcu-
lated his offense level by adding a five-level enhancement under §
2G2.2(b)(5) for engaging in a pattern of activity involving the sexual
abuse or exploitation of a minor. Noble argues that the proper cal-
culation would have resulted in a guideline range of 151-188
months. He concedes that his conversation with “justnitnee” was
one instance of sexual abuse or exploitation of a minor since it was
an attempt to commit an unlawful act of sexual abuse or exploita-
tion as defined in the application notes to § 2G2.2. However, he
contends on appeal that his first conversation with “smokingkit-
tens2011” is not conduct that meets the requirements necessary to
create a pattern of activity justifying a five-level enhancement un-
der § 2G2.2(b)(5).
Noble argues that the conversation with “smokingkit-
tens2011” did not contain a request nor result in an agreement for
the mother to commit sexual abuse against her child. Noble there-
fore argues that his exchange with “smokingkittens2011” was not
an attempt to engage in the sexual abuse or exploitation of a minor
and cannot be used to demonstrate a pattern of activity justifying
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21-10633 Opinion of the Court 7
the five-level enhancement to Noble’s guidelines offense level. To
the contrary, Noble argues that he did not “cross the line between
sexual banter and persuasion” as this court provided in United
States v. Rothenberg because his conversation with “smokingkit-
tens2011,” did not include an explicit request for her to sexually
abuse her child. See 610 F.3d 621, 627 (11th Cir. 2010). As such,
there was insufficient evidence to establish Noble attempted to vi-
olate § 2422(b) and, therefore, he should not receive a five-level of-
fense enhancement.
In response, the government argues that the district court
properly imposed the five-level enhancement during sentencing
because Noble attempted to persuade the “smokingkittens2011” to
“start [her son] young” with sexual abuse and to “corrupt him”
through sexual pleasure. As such, Noble’s conversations docu-
mented in the government’s exhibits—in which Noble encourages
mothers to sexually abuse their minor children for pay—constitute
a pattern of activity warranting the enhancement.
Here, the district court did not clearly err in imposing the
five-level enhancement for Noble’s engagement in a pattern of ac-
tivity where it based its findings of fact on undisputed statements
in the PSI and facts admitted by a defendant. Wilson, 884 F.2d at
1356; see, e.g., United States v. Alberts, 859 F.3d 979, 981 (11th Cir.
2017) (affirming the district court’s application of the five-level en-
hancement where PSI showed that defendant admitted to sexually
abusing minors in the past did and did not challenge the factual ac-
curacy or the characterization of his admission). Further, the
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8 Opinion of the Court 21-10633
district court reasoned that there is no meaningful distinction be-
tween a request attempting to persuade another adult to abuse a
minor and such a request coupled with another request to film the
abuse. See, e.g., Rothenberg, 610 F.3d at 623 (upholding five-level
enhancement because online conversations may cross the line
from sexual banter to enticement, persuasion, or inducement
where defendant encourages other adults to sexually abuse mi-
nors). Our review of the record reinforces the district court’s find-
ings.
The record shows that Noble attempted to persuade “smok-
ingkittens2011” that her son could feel sexual pleasure if she
“touched him the right way.” When she refused because she
“would rather have [her] child be mentally stable,” Noble offered
her money to show her how “serious” he was about his request.
Even if Noble was only engaging in sexual banter when he told
“smokingkittens2011” that her son could feel sexual pleasure if she
“touched him the right way,” Noble crossed the line from sexual
banter to an attempt to entice, persuade, or induce sexual abuse of
a minor when he offered her payment in exchange for her agree-
ment to act upon his request to abuse her son. See Rothenberg,
610 F.3d at 623.
The record contains sufficient facts to establish that Noble
engaged in two instances of conduct sufficient to create a pattern
of activity involving the sexual abuse or exploitation of a minor”
under § 2G2.2(b)(5). As such, it is proper to subject Noble to a five-
level enhancement. The district court did not clearly err in its
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21-10633 Opinion of the Court 9
factual findings, nor did it err in applying its findings to the sentenc-
ing guidelines. Accordingly, we affirm.
AFFIRMED.