United States v. Charles M. Hair

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-15419 ELEVENTH CIRCUIT
November 7, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00285-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES M. HAIR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 7, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Charles Hair appeals his 365-month aggregate sentences for 3 counts of
transport and shipment of child pornography in interstate commerce by computer,
in violation of 18 U.S.C. § 2252A(a)(1) , and 1 count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On direct appeal, we
vacated Hair’s initial sentence and remanded for re-sentencing and a determination
of a sufficient basis for any enhancement to Hair’s offense level based on a pattern
of sexual abuse or exploitation of a minor. In this appeal, Hair argues that the
district court erred at re-sentencing in increasing his offense level by five levels,
pursuant to U.S.S.G. § 2G2.2(b)(4) (2003), for engaging “in a pattern of activity
involving the sexual abuse or exploitation of a minor.” In particular, Hair argues
that the district court should have considered the definition of “sexual abuse or
exploitation” contained in guidelines Amendment 664, which Hair contends was a
clarifying amendment. Hair also argues that the district court increased his
sentence based on facts that were not alleged in the indictment or proven to a jury
beyond a reasonable doubt, in violation of the Fifth and Sixth Amendments.
I. U.S.S.G. §2G2.2(b)(4) (2003)
We review “a district court’s factual findings for clear error and its
application of the Sentencing Guidelines to those facts de novo.” United States v.
Moriarty, 429 F.3d 1012, 1021 (11th Cir. 2005) (quotation omitted). “When a
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defendant objects to a factual finding that is used in calculating his guideline
sentence[,] the government bears the burden of establishing the disputed fact by a
preponderance of the evidence.” Id. (quotation omitted).
Section 2G2.2 of the Sentencing Guidelines provides the offense level
calculation for trafficking in child pornography. U.S.S.G. § 2G2.2. That section
provides a five-level enhancement if “the defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4)
(2003). A “pattern of activity involving the sexual abuse or exploitation of a
minor” requires at least two separate instances of such conduct by the defendant.
U.S.S.G. § 2G2.2, comment. (n.1). Section 2G2.2 was amended in November
2004 pursuant to Amendment 664, which redesignated the enhancement provision
as subsection (b)(5). U.S.S.G. App. C, Amendment 664. Although the applicable
commentary was altered, the text of the enhancement provision remained
unchanged. See id. The commentary in effect at the time of Hair’s original
sentencing in September 2004 provided:
‘Sexual abuse or exploitation’ means conduct constituting criminal
sexual abuse of a minor, sexual exploitation of a minor, abusive
sexual contact of a minor, any similar offense under state law, or an
attempt or conspiracy to commit any of the above offenses. ‘Sexual
abuse or exploitation’ does not include trafficking in material relating
to the sexual abuse or exploitation of a minor.
U.S.S.G. § 2G2.2, comment. (n.1) (2003); see U.S.S.G. App. C, Amendment 664.
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The amended commentary effective November 1, 2004, provides:
‘Sexual abuse or exploitation’ means any of the following: (A)
conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251,
§ 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense under
state law, that would have been an offense under any such section if
the offense had occurred within the special maritime or territorial
jurisdiction of the United States; or (C) an attempt or conspiracy to
commit any of the offenses under subdivisions (A) or (B). ‘Sexual
abuse or exploitation’ does not include possession, receipt, or
trafficking in material relating to the sexual abuse or exploitation of a
minor.
U.S.S.G. § 2G2.2, comment. (n.1) (2004); see U.S.S.G. App. C, Amendment 664.
Upon remand, a district court must determine the guideline sentencing range
by reference to the Guidelines “that were in effect on the date of the previous
sentencing of the defendant prior to the appeal, together with any amendments
thereto by any act of Congress that was in effect on such date . . . .” 18 U.S.C.
§ 3742(g)(1) (the “Feeney Amendment”). The Feeney Amendment requires the
use of the prior Guidelines even if there has been a later favorable change in the
law. United States v. Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005). In addition,
courts generally must apply the guidelines manual in effect on a particular date in
its entirety. United States v. Bailey, 123 F.3d 1381, 1404 n.33 (11th Cir. 1997).
However, it is “well-settled in this circuit that the sentencing court should consider
clarifying amendments when interpreting the guidelines, even when sentencing
defendants convicted before the effective date of the amendments.” United States
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v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (quotations omitted). “Clarifying
amendments do not effect a substantive change, but provide persuasive evidence of
how the Sentencing Commission originally envisioned application of the relevant
guideline.” United States v. Descent, 292 F.3d 703, 707-08 (11th Cir. 2002). An
amendment may be substantive if it “substantively alters any relevant preexisting
commentary.” Id.In determining whether an amendment is clarifying or substantive, we
consider, among other things: (1) whether the commentary states that the
amendment is intended to be clarifying; and (2) the list of amendments intended to
be applied retroactively, contained in U.S.S.G. § 1B1.10(c). Id. at 708-09. Also
relevant are whether “the amended commentary either contradicts or substantively
alters any relevant preexisting commentary.” United States v. Summers, 176 F.3d
1328, 1331 (11th Cir. 1999) (quotation omitted).
We hold that the portion of Amendment 664 defining “sexual abuse or
exploitation of a minor” was substantive and, thus did not apply at resentencing.
Even though Amendment 664 did not change the text of the enhancement
provision itself, it did substantively alter the commentary that defined “sexual
abuse or exploitation.” See U.S.S.G. App. C, Amendment 664. In particular,
“abusive sexual contact” was specifically included in the definition of sexual abuse
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or exploitation in the 2003 commentary, but it appears that it was excluded from
the amended commentary, because 18 U.S.C. § 2244 was not among the listed
offenses. See id.; U.S.S.G. § 2A3.4; 18 U.S.C. § 2244. Thus, the amendment did
not merely clarify what sexual abuse or exploitation meant, but changed the
definition to exclude certain conduct that had been included previously. Whether
the omission of abusive sexual contact was intentional, the effect was a substantive
change in the covered conduct. Moreover, Amendment 664 does not state that it is
intended to be clarifying, and the amendment is not listed in U.S.S.G. § 1B1.10(c).
See generally U.S.S.G. App. C, Amendment 664; U.S.S.G. § 1B1.10(c).
Therefore, Amendment 664 is a substantive amendment with regard to the
definition of sexual abuse or exploitation, and the district court correctly declined
to apply the amendment retroactively. See Summers, 176 F.3d at 133; Descent,
292 F.3d at 708.
Under the 2003 Guidelines in effect at Hair’s original sentencing, the
government established by a preponderance of the evidence that Hair committed
two prior instances of sexual abuse or exploitation of a minor. Hair admits that the
1982 incident, in which he allegedly performed oral sex on a minor in a park,
would qualify as sexual abuse or exploitation of a minor under U.S.S.G.
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§ 2G2.2(b)(4)1 but challenges the credibility and reliability of the evidence.
However, Hair did not raise that challenge in his brief in his first appeal so we will
not address it on return from remand. United States v. Fiallo-Jacome, 874 F.2d
1479 (11th Cir. 1989) (rejecting appellant’s attempt to raise new issues in appeal
from resentencing).
Two incidents are required to establish a pattern of sexual abuse or
exploitation for purposes of the five-level enhancement. U.S.S.G. § 2G2.2(b)(4),
comment. (n.1). Therefore, the enhancement will apply if either the 1986 wasp
incident or the 1989 note-dropping incident qualified as an incident of sexual abuse
or exploitation of a minor under the Guidelines.
Hair does not argue that the 1986 wasp incident was not sexual abuse or
exploitation under the 2003 Guidelines, but instead argues that the incident would
not be a crime under the statutes listed in the amended commentary to U.S.S.G.
§ 2G2.2. As discussed above, the district court correctly declined to apply the
amended commentary, as it was substantive rather than clarifying. The 2003
commentary to § 2G2.2 specifically included “abusive sexual contact” in the
definition of sexual abuse or exploitation. U.S.S.G. § 2G2.2, comment. (n.1)
1
Additionally, 1982 incident qualifies as sexual abuse or exploitation of a minor under
Amendment 664 because it would violate 18 U.S.C. § 2243. See U.S.S.G. Appx. C, Amendment
664; 18 U.S.C. § 2243(a).
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(2003). Although “abusive sexual contact” was not defined in § 2G2.2, courts may
look to other guideline sections for guidance on a case-by-case basis. See
generally U.S.S.G. § 2G2.2, comment. (n.1); see Saunders, 318 F.3d at 1264. By
reference to U.S.S.G. § 2A3.4, which further references 18 U.S.C. § 2244, the
definition of abusive sexual contact may be found in 18 U.S.C. § 2246(3). See
U.S.S.G. § 2A3.4, comment; 18 U.S.C. § 2246(3). Under 18 U.S.C. § 2246(3), the
1986 wasp incident fits within the definition of “abusive sexual contact” because it
involved the intentional touching of the buttocks of a minor, “with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.” See 18 U.S.C. §§ 2244, 2246(3). Thus, the 1986 wasp incident qualified
as sexual abuse or exploitation under § 2G2.2(b)(4), and the government
established a pattern by proving the 1982 and 1986 incidents. See U.S.S.G.
§ 2G2.2(b)(4) and comment. (n.1). Accordingly, the district court did not err in
applying the five-level enhancement, pursuant to § 2G2.2(b)(4).
In the 1989 incident, Hair approached a boy, dropped a note in front of him
which stated that Hair wanted to have oral sex with the boy, and also made a sexual
gesture toward him. Section 2243 of Title 18, United States Code provides
penalties for an attempt to engage in a sexual act with a minor. 18 U.S.C.
§ 2243(a). Hair’s actions reflect an intent to commit an offense under 18 U.S.C.
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§ 2243(a), and also constitute a substantial step toward committing the offense.
See Murrell, 368 F.3d at 1286; Panfil, 338 F.3d at 1300, 1302-03; 18 U.S.C.
§ 2243(a). Therefore, even under the amended commentary, the 1989 note-
dropping incident would qualify as sexual abuse or exploitation of a minor because
the amended commentary includes a violation of 18 U.S.C. § 2243 in the
definition of sexual abuse or exploitation. See U.S.S.G., App. C, Amendment 664.
Thus, the 1982 and 1989 incidents together would also qualify as a pattern of
sexual abuse or exploitation for purposes of § 2G2.2 as amended by Amendment
664. See U.S.S.G. § 2G2.2(b)(5), comment. (n.1) (2004).
II. FIFTH AND SIXTH AMENDMENT
When the Guidelines are applied as advisory, a sentence may be enhanced
based on facts found by the sentencing court, so long as the judicially found facts
do not increase the sentence beyond the statutory maximum authorized by the facts
admitted or found by the jury beyond a reasonable doubt. United States v. Hunt,
459 F.3d 1180, 1182 (11th Cir. 2006).
Because the district court applied the Guidelines as advisory and sentenced
Hair to a term of imprisonment below the statutory maximum, the district court did
not violate Hair’s Fifth or Sixth Amendment rights by enhancing his sentence
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based on judicially found facts.
III. CONCLUSION
Based on a review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm Hair’s sentences.
AFFIRMED.2
2
Hair’s request for oral argument is denied.
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