United States v. Cramer, 777 F.3d 597

Defendant Thomas Cramer pled guilty to four counts of sex trafficking of minors under 18 U.S.C. § 1591 and was sentenced to 360 months’ imprisonment and 15 years’ supervised release; he appealed the sentence.
The district court applied a two-level Sentencing Guidelines enhancement under U.S.S.G. § 2G1.3(b)(3) for use of a computer to each count: (A) minor-inducement for Counts 1–2 and (B) third-party solicitation for Counts 3–4.
Cramer contested (a) factual findings that he initially contacted Victims 1 and 2 online, (b) whether use of a computer qualifies where enticement later occurred offline, and (c) whether Application Note 4 limits subsection (b)(3)(B).
The district court grouped Counts 1–4 under U.S.S.G. § 3D1.4; even if Count 2’s computer enhancement were removed, the grouped calculations would yield the same total offense level and sentencing range.
The Second Circuit addressed two questions of first impression: whether subsection (b)(3)(A) applies when computer contact establishes a relationship later exploited offline, and whether Application Note 4 is inconsistent with subsection (b)(3)(B).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2G1.3(b)(3)(A) applies when defendant first contacts a minor by computer but entices offline	Enhancement applies because computer was used in the offense to induce the minor	Enhancement improper because enticement did not occur via computer	Held: Applies — initial computer contact that establishes the relationship can make the offense one that "involved" computer use for (A)
Whether the district court clearly erred in finding online contact with Victim 1	Court relied on plea colloquy and PSR; evidence supports finding	Cramer denied online contact, claimed personal relationship	Held: No clear error — factual finding affirmed
Whether any error applying (b)(3)(A) to Count 2 was reversible	N/A (Court evaluates harmlessness)	Cramer argued enhancement improper for Count 2 on several legal grounds	Held: Any error would be harmless — grouping under § 3D1.4 yields same Guidelines range
Whether Application Note 4 precludes applying § 2G1.3(b)(3)(B) when defendant solicits third parties online	Note bars enhancement because it limits (b)(3) to communications directly with minors or their custodians	Plain text of (b)(3)(B) covers third-party solicitations; Note is inconsistent	Held: Application Note 4 is plainly inconsistent with (b)(3)(B) and does not preclude the enhancement for third-party online solicitations

Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative unless inconsistent with statute, Constitution, or plainly erroneous reading)
Pringler v. United States, 765 F.3d 445 (5th Cir. 2014) (Application Note 4 inconsistent with (b)(3)(B); likely drafting error; supports applying (b)(3)(B) to third-party online solicitations)
Patterson v. United States, 576 F.3d 431 (7th Cir. 2009) (interpreted Application Note 4 to limit (b)(3)(B) where no direct computer communications with victim or custodian)
Lay v. United States, 583 F.3d 436 (6th Cir. 2009) (holding enhancement applies where defendant used computer to develop relationship later consummated offline)
Conca v. United States, 635 F.3d 55 (2d Cir. 2011) (standard of review for sentencing reasonableness; deferential abuse-of-discretion)
Jass v. United States, 569 F.3d 47 (2d Cir. 2009) (harmless-error framework for procedural sentencing errors)
Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (clear-error standard for factual findings)
Malki v. United States, 609 F.3d 503 (2d Cir. 2010) (district court may adopt PSR findings to satisfy appellate-review requirement)