United States v. Edward Raiburn
20 F.4th 416
| 8th Cir. | 2021Background:
- Victim K.N. (turned 13 during the events) had a sexual relationship with Raiburn, including intercourse in Oklahoma and repeated in-person and remote sexual contact.
- In August 2019 Raiburn gave K.N. a prepaid cell phone; between Aug. 9–31 there were thousands of messages and hundreds of images, including K.N. sending nude “selfie” images at Raiburn’s requests and live FaceTime shower/masturbation sessions.
- Raiburn pleaded guilty to one count of producing child pornography based on his solicitation of a selfie of K.N.’s genitals on Aug. 15, 2019.
- The PSR applied two two-level Guideline enhancements: §2G2.1(b)(2)(A) (offense involved a sexual act or sexual contact) and §2G2.1(b)(6)(B) (use of a computer to solicit participation or solicit participation with a minor), raising the total offense level to 40.
- At sentencing Raiburn disputed both enhancements; the district court applied both and imposed a 360‑month term. On appeal the Eighth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2G2.1(b)(2)(A) applies (offense involved a sexual act or sexual contact) | Government: texts and conduct show sexual acts/contact (including live masturbation and victim self‑touching) qualifying for the enhancement | Raiburn: masturbation (self‑touching) is not "sexual contact" under §2246(3); prior intercourse was not relevant conduct to the production offense | Affirmed: sexual contact under §2246(3) includes masturbation/self‑touching; intent elements satisfied by undisputed texts, so enhancement applies |
| Whether §2G2.1(b)(6)(B)(ii) applies (use of a computer to "solicit participation with" a minor) | Government: cell phones were used to solicit sexually explicit images and live transmissions; use of computer enhancement applies | Raiburn: "participation with" requires soliciting a third‑party to participate or mutual activity; he cannot solicit himself to participate with the minor | Court: even if (ii) were doubtful, harmless error because facts independently support §2G2.1(b)(6)(B)(i) (solicit participation by a minor); enhancement upheld |
Key Cases Cited
- United States v. Cramer, 962 F.3d 375 (8th Cir. 2020) (application‑note/definition analysis for §2G2.1 enhancements)
- United States v. Pawlowski, 682 F.3d 205 (3d Cir. 2012) (holding self‑masturbation qualifies as sexual contact under §2246(3))
- United States v. Shafer, 573 F.3d 267 (6th Cir. 2009) (same; analyzes intent elements for sexual contact)
- United States v. Aldrich, 566 F.3d 976 (11th Cir. 2009) (concluding masturbation falls within §2246(3))
- United States v. Stong, 773 F.3d 920 (8th Cir. 2014) (standard of review: factual findings for clear error, guideline construction de novo)
- United States v. Roman-Portalatin, [citation="476 F. App'x 868"] (1st Cir. 2012) (upholding computer‑use enhancement where plea facts showed solicitation of images)