United States v. Bowden

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12839 MARCH 30, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cr-00098-WSD-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY TODD BOWDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 30, 2011)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
After a jury trial, Gregory Bowden appeals his conviction and 250-month
sentence for attempting to entice a minor to engage in sexual activity, in violation
of 18 U.S.C. § 2422(b). After review, we affirm.
I. BACKGROUND FACTS
In October 2008, an agent with a Federal Bureau of Investigation (“FBI”)
task force encountered Bowden in an internet chat room. The FBI agent posed as
“Tiffany,” the mother of “Stephanie,” a seven-year old girl. After communicating
about their personal lives, including details of their alleged sexual experiences,
Bowden told “Tiffany” he was interested in a sexual relationship with a mother
and her daughter and gave Tiffany his email address.
In early February 2009, “Tiffany” and Bowden began chatting online about
arranging a meeting. Bowden lived in Macon, Georgia. Bowden arranged to meet
Tiffany and Stephanie on February 11, 2009 at a restaurant in Sandy Springs,
Georgia and then go to Tiffany’s apartment to engage in group sexual activities.
In his communications with Tiffany, Bowden took steps to ensure Tiffany
understood that he wanted Stephanie to participate, that Tiffany had spoken to
2
Stephanie about what would happen and that Tiffany would purchase “lube” for
him to use with Stephanie.1
On February 11, 2009, law enforcement arrested Bowden when he parked in
the parking lot of the agreed-upon restaurant. After his arrest, Bowden admitted
frequenting online chat rooms using the screen name utilized in the
communications with Tiffany. However, Bowden maintained that he did so to
enjoy taboo subjects, role-playing and having sex with adults who pretended to be
minors. A subsequent search revealed child pornography on Bowden’s computer.
Before trial, Bowden moved to dismiss the indictment, arguing that: (1) 18
U.S.C. § 2422(b) did not cover his conduct because he communicated with an
intermediary, the purported parent of a minor, rather than directly with a minor;
(2) the doctrine of legal impossibility precluded his prosecution because no actual
minor was involved; and (3) as discussions of sexual fantasies between adults, his
communications with Tiffany were protected by the First Amendment.
On August 19, 2009, a magistrate judge entered a report and
recommendation (“R&R”) that recommended denying the motion. The R&R
1
At the time of his arrest, Bowden worked as a Deputy Sheriff at the Bibb County
Sheriff’s Office. In an instant message, Bowden asked Tiffany whether she was a law
enforcement officer and, when she reassured him that she was not, Bowden stated, “Just
discussing it with you if you are a cop is bad, but to show up is worse.” In a communication the
morning of February 11, 2009, Bowden told Tiffany he was “nervous, excited, and did not want
to go to jail.”
3
concluded that Eleventh Circuit precedent foreclosed Bowden’s first two
arguments and that the First Amendment did not protect Bowden’s
communications with Tiffany. The R&R advised the parties that, pursuant to 28
U.S.C. § 636(b)(1), they had ten days to file objections.2 After neither party
objected to the magistrate’s report and recommendation, on October 2, 2009, the
district court adopted it and denied Bowden’s motion to dismiss the indictment.
The district court agreed with the R&R that Bowden’s third-party intermediary
and legal impossibility arguments were foreclosed by Eleventh Circuit precedent
and that, under Supreme Court precedent, Bowden’s communications with Tiffany
to arrange the sexual abuse of a child were not protected by the First Amendment.
Following a three-day trial, a jury convicted Bowden of violating § 2422(b).
The presentence investigation report (“PSI”) recommended: (1) a base offense
level of 28, pursuant to U.S.S.G. § 2G1.3(a)(3); (2) a two-level increase, pursuant
to U.S.S.G. § 2G1.3(b)(3), because Bowden’s offense involved the use of a
computer; (3) an eight-level increase, pursuant to U.S.S.G. § 2G1.3(b)(5), because
the offense involved a minor under the age of twelve; and (4) a two-level increase
for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because Bowden
2
Effective December 1, 2009, 28 U.S.C. § 636 was amended to provide fourteen days,
rather than ten, to object to a magistrate judge’s recommendation. See Statutory Time-Periods
Technical Amendments Act of 2009, Pub. L. No. 111-16, § 6(1), 123 Stat. 1608 (2009).
4
committed perjury at trial. With a total offense level of 40, and a criminal history
category of I, the PSI recommended an advisory guidelines range of 292 to 365
months’ imprisonment.
Bowden filed written objections to the three offense level enhancements.
Bowden did not object to the PSI’s factual statements.
At sentencing, the district court overruled Bowden’s objections and applied
the PSI’s guidelines calculations, which yielded an advisory guidelines range of
242 to 365 months. Bowden asked for a 120-month sentence, the statutory
mandatory minimum. After Bowden personally addressed the court, the district
court imposed a 250-month sentence. Bowden appealed.
II. DISCUSSION
A. Motion to Dismiss the Indictment
On appeal, Bowden seeks to challenge the district court’s denial of his
motion to dismiss the indictment. Specifically, Bowden reasserts that he cannot be
prosecuted for violating § 2422(b) because: (1) he communicated with an
intermediary, who in turn induced a minor to engage in sexual conduct; and (2)
those communications are protected by the First Amendment.3 However, under
3
Although Bowden’s appellate brief lists in the statement of the issues “[w]hether the
District Court erred by ruling that an actual minor child is not required for 18 U.S.C. § 2422(b) to
apply,” the brief offers no substantive argument or citation to legal authority as to this issue.
5
Federal Rule of Criminal Procedure 59(b)(2), Bowden waived these challenges
because he failed to object to the magistrate judge’s R&R.
Under Rule 59(b)(2), a party waives the right to review of a claim if he does
not file “specific written objections” within the time set by the court or within
fourteen days of being served with the report and recommendation. Fed. R. Crim.
P. 59(b)(2). Waived claims are not reviewed for plain error. United States v.
Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (en banc).
Bowden did not file any written objections within the ten-day period set by
the court. Therefore Bowden has waived appellate review of the denial of his
motion to dismiss the indictment.
We note that the magistrate judge’s R&R erroneously advised the parties
that the failure to object would result in plain error review on appeal. However,
even if we reviewed for plain error, we would affirm. Both of Bowden’s
arguments on appeal are foreclosed by this Circuit’s precedent. See United States
v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (concluding that negotiating with
Accordingly, Bowden has abandoned it. See Fed. R. App. P. 28(a)(9)(A); United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (explaining that an issue was abandoned
where the defendant’s brief made only “passing references” to the issue). In any event, there is
no error with regard to this issue. See United States v. Rothenberg, 610 F.3d 621, 626 (11th Cir.
2010) (“It is . . . the clearly established law of the circuit that to prove an attempted exploitation
offense under 18 U.S.C. § 2422(b), the Government does not have to prove the existence or
identity of a specific minor victim; a fictitious minor will suffice so long as the defendant
understood and believed that a minor was involved.”).
6
the purported father of a minor falls within the purview of § 2422(b) and rejecting
argument that a § 2422(b) defendant must communicate directly with the minor or
supposed minor); United States v. Lee, 603 F.3d 904, 912-13 (11th Cir.) (relying
on Murrell to explain that a defendant may be convicted under § 2422(b) “even
though he communicated only with an adult intermediary”), cert. denied, 131 S.
Ct. 437 (2010); United States v. Hornday, 392 F.3d 1306, 1311 (11th Cir. 2004)
(rejecting argument that applying § 2422(b) to conduct of engaging in
conversations with an undercover police officer posing as a 13-year-old minor
violated defendant’s First Amendment rights and explaining that “[s]peech
attempting to arrange the sexual abuse of children is no more constitutionally
protected than speech attempting to arrange any other type of crime”).
B. Section 3G1.3(b)(3)(A) Enhancement
Pursuant to U.S.S.G. § 2G1.3(b)(3)(A), a defendant’s offense level is
increased by two levels “[i]f the offense involved the use of a computer or an
interactive computer service to . . . persuade, induce, entice, coerce, or facilitate
the travel of, the minor to engage in prohibited sexual conduct . . . .” U.S.S.G.
§ 2G1.3(b)(3)(A). This enhancement “is intended to apply only to the use of a
computer or an interactive computer service to communicate directly with a minor
7
or with a person who exercises custody, care, or supervisory control of the minor.”
U.S.S.G. § 2G1.3 cmt. n.4.4
On appeal, Bowden does not dispute that he communicated by e-mail with
an undercover FBI agent in order to arrange for sexual relations with a fictitious
seven-year-old girl. As Bowden acknowledges, this Court has affirmed the
application of § 2G1.3(b)(3)’s two-level enhancement where the defendant used a
computer to communicate with an undercover police officer in an effort to gain
access to minors with which to engage in sexual conduct. See, e.g., United States
v. Vance, 494 F.3d F.3d 985, 996-97 (11th Cir. 2007). To the extent Bowden asks
us to reconsider our earlier panel opinion, we cannot do so. See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or this Court sitting en banc.”).
Bowden argues that his computer use is not a proper “specific offense
characteristic” under the Sentencing Guidelines because it was necessary to
establish federal jurisdiction and does not distinguish his offense from other
§ 2422(b) violations. See U.S.S.G. ch. 1, pt. A.3 (explaining that the Sentencing
4
We review the district court’s application of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir.
2006).
8
Commission took an “empirical approach” to drawing distinctions among offense
and offender characteristics).
Bowden provides no authority to support his claim that the district court
may disregard a specific offense enhancement under the Sentencing Guidelines
based on a policy disagreement. Although the Sentencing Guidelines are advisory
after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district
court still must calculate the advisory guidelines range correctly. See United
States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).5
In any event, Bowden’s argument is meritless. Bowden’s use of an Internet-
connected computer was sufficient, but not necessary, to establish § 2422(b)’s
jurisdictional component. See 18 U.S.C. § 2422(b) (providing that jurisdiction is
established when the defendant uses the “mail or any facility or means of interstate
or foreign commerce”). Thus, Bowden’s computer use not only established
5
Bowden argues only that the district court calculated his advisory guidelines range
incorrectly. He does not argue that his 250-month sentence is substantively unreasonable or that
the district court should have given him a downward variance from the correctly calculated
advisory guidelines range. Cf. Kimbrough v. United States, 552 U.S. 85, 96-97, 109-10, 128 S.
Ct. 558, 567, 575 (2007) (concluding that the lack of empirical data to support, and disagreement
with, the Sentencing Guidelines’s 100:1 sentencing ratio for crack and powder cocaine offenses
was one factor district courts could consider in deciding whether to vary downward from the
advisory guidelines range). While Kimbrough indicates that, under certain circumstances, a
district court may vary from the advisory guidelines range based on a policy disagreement with a
specific guidelines provision, it did not suggest that the district court could disregard the
guidelines provision in calculating the applicable guidelines range.
9
federal jurisdiction, it also distinguished his offense from a range of potential
§ 2422(b) violations. The Sentencing Commission’s decision to impose a two-
level enhancement for this specific form of the offense reflects its judgment that
the use of a computer, as opposed to a telephone or the mail, is a more pernicious
form of exploitation that, as the district court noted, raises dangers that may not be
present through other mediums. We find no error in the district court’s application
of § 2G1.3(b)(3)(A)’s two-level enhancement.
C. Section 2G1.3(b)(5) Enhancement
Under U.S.S.G. § 2G1.3(b)(5), a defendant’s offense level is increased by
eight levels if “the offense involved a minor who had not attained the age of 12
years.” U.S.S.G. § 2G1.3(b)(5). A “minor,” is defined, in part, as “an individual,
whether fictitious or not, who a law enforcement officer represented to a
participant (i) had not attained the age of 18 years, and (ii) could be provided for
the purposes of engaging in sexually explicit conduct . . . .” U.S.S.G. § 2G1.3
cmt. n.1.
Bowden argues that the district court erred in applying the eight-level
enhancement because the under-twelve threshold is arbitrary and unsupported by
empirical evidence. Again, Bowden does not cite any authority supporting his
10
contention that the district court may decline to apply a specific offense
enhancement based on a policy disagreement with the Sentencing Guidelines.
Furthermore, Bowden has not shown that the Sentencing Commission’s
line-drawing in § 2G1.3(b)(5) is arbitrary. The eight-level enhancement reflects
the Sentencing Commission’s judgment that a sex offense covered by § 2G1.3 that
involves a child under the age of twelve, even a fictitious one, is more serious. As
the government notes, children under the age of twelve generally are regarded as
pre-pubescent, and to draw the line between pre- and post-pubescent minors is not
arbitrary. See, e.g., 18 U.S.C. § 2241(c) (imposing a higher mandatory minimum
sentence if a defendant travels across state lines to engage in sex with a minor
under the age of twelve); 18 U.S.C. § 2244(c) (doubling the statutory maximum
sentence if the sexual contact is with a child under the age of twelve).
Bowden does not dispute that his § 2422(b) offense involved a fictitious
seven-year-old girl whom Bowden was trying to meet for the purpose of engaging
in sexually explicit conduct with her. Accordingly, the district court did not err in
applying the § 2G1.3(b)(5) eight-level enhancement.
AFFIRMED.
11