United States v. Bauer
2010 U.S. App. LEXIS 24636
| 8th Cir. | 2010Background
- Bauer pled guilty to one count of attempted receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).
- Over weeks in 2006, Bauer, posing as a 14-year-old girl, engaged in at least seventeen online chats and described sexual acts he wished to perform.
- He offered to buy a web camera for the minor to record and transmit explicit images and mailed $25 to the provided address.
- At sentencing, the district court applied a cross-reference to § 2G2.1, increasing the base level due to production/solicitation of images.
- The court calculated an offense level of 33 and an advisory range of 135–168 months, sentencing Bauer to 135 months.
- Bauer challenged the adequacy of the factual basis, sentencing calculation, effectiveness of counsel, and substantive reasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the guilty-plea factual basis adequate? | Bauer argues the basis is inadequate because no actual minor communicated with him and the cash mailing was mere preparation. | Bauer contends factual impossibility and lack of a substantial step defeat the elements of attempt. | No plain error; factual basis adequate to support attempt under § 2252A. |
| Was the cross-reference § 2G2.2(c)(1) properly applied? | Bauer contends cross-reference should not apply since he did not produce prohibited images and sought production by another. | The cross-reference applies broadly to offering/seeking a minor to engage in sexually explicit conduct for producing imagery. | Yes, district court correctly applied § 2G2.2(c)(1). |
| Did Bauer have ineffective assistance of counsel on direct appeal? | Bauer claims trial counsel failed to inform him of the cross-reference’s obvious application. | No record on counsel's performance; claims must be raised in a § 2255 proceeding. | Remains for collateral review; not addressed on direct appeal. |
| Is Bauer's 135-month sentence substantively reasonable under 18 U.S.C. § 3553(a)? | Bauer argues the sentence overstates severity given lack of prior convictions, age, and family responsibilities. | District court properly considered § 3553(a) factors and chose a sentence at the bottom of the range due to the offense's nature. | Sentence within range; presumption of reasonableness affirmed; district court did not abuse discretion. |
Key Cases Cited
- United States v. Frook, 616 F.3d 773 (8th Cir.2010) (plain-error review for inadequacy of factual basis)
- United States v. Helder, 452 F.3d 751 (8th Cir.2006) (factual impossibility not a defense to attempt when mens rea is met)
- United States v. Joiner, 418 F.3d 863 (8th Cir.2005) (factual impossibility not defense to attempt)
- United States v. Worley, 217 Fed.Appx. 580 (8th Cir.2007) (impossibility defense to attempt addressed)
- United States v. Pierson, 544 F.3d 933 (7th Cir.2008) (course of conduct sufficient to uphold attempt under § 2251(a))
- United States v. Garcia, 411 F.3d 1173 (10th Cir.2005) (cross-reference extends to active solicitation for production of imagery)
- United States v. Dawn, 129 F.3d 878 (7th Cir.1997) (cross-reference rationale for production/solicitation scenarios)
- United States v. Johnson, 376 F.3d 689 (7th Cir.2004) (knowledge mens rea in related child-pornography contexts)
- United States v. DeMarce, 564 F.3d 989 (8th Cir.2009) (substantial-step standard and corroboration in attempt)
- United States v. Spurlock, 495 F.3d 1011 (8th Cir.2007) (substantial step must corroborate intent)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion standard for sentencing; presumption of reasonableness within advisory range)
- Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for within-range sentences)
- United States v. Feemster, 572 F.3d 455 (8th Cir.2009) (en banc; review framework for sentencing decisions)
- United States v. Garcia, 411 F.3d 1173 (10th Cir.2005) (scope of cross-reference in § 2G2.2)