997 F.3d 1121
11th Cir.2021Background
- Gabriel Dominguez pleaded guilty to possession and distribution of child pornography; at sentencing the district court applied a 5-level enhancement under U.S.S.G. §2G2.2(b)(5) for a “pattern of activity involving the sexual abuse or exploitation of a minor.”
- The enhancement was based on Instagram messages Dominguez sent to a nine‑year‑old: he sent a photo of his penis and repeatedly asked the child for naked pictures and made sexually explicit comments.
- Dominguez argued the enhancement was improper because 18 U.S.C. §2422(b)’s phrase “sexual activity” (incorporated by the Guidelines commentary) requires actual or attempted interpersonal physical contact, which he did not seek.
- The Government countered that “sexual activity” includes non‑contact conduct and that Dominguez’s messages could violate §2422(b), qualifying as a second instance for the Guidelines “pattern” enhancement.
- The Eleventh Circuit held that “sexual activity” in §2422(b) does not require interpersonal physical contact, but vacated the enhancement and remanded because the district court never determined whether Dominguez’s conduct was conduct “for which any person can be charged with a criminal offense” as §2422(b) requires.
Issues
| Issue | Dominguez (appellant) | Government | Held |
|---|---|---|---|
| Whether “sexual activity” in 18 U.S.C. §2422(b) requires interpersonal physical contact | Requires actual or attempted physical contact | No, contact not required; covers non‑contact sexual conduct | No contact requirement; “sexual activity” may be non‑contact |
| Whether the §2G2.2(b)(5) five‑level enhancement was properly applied without a district‑court finding that the conduct was “sexual activity for which any person can be charged with a criminal offense” | District court had to make that statutory predicate; enhancement improper without it | District court’s facts show intent and conduct; enhancement appropriate | Enhancement vacated; remanded for district court to decide that §2422(b) predicate and then resentence |
Key Cases Cited
- United States v. Fugit, 703 F.3d 248 (4th Cir. 2012) (held “sexual activity” need not involve interpersonal physical contact)
- United States v. Taylor, 640 F.3d 255 (7th Cir. 2011) (held “sexual activity” requires interpersonal physical contact; invoked lenity)
- United States v. Johnson, 784 F.3d 1070 (7th Cir. 2015) (production of child pornography can occur without interpersonal contact)
- United States v. Lee, 603 F.3d 904 (11th Cir. 2010) (government must prove substantial step toward causing assent under §2422(b))
- United States v. Williams, 790 F.3d 1240 (11th Cir. 2015) (plenary review of statutory interpretation issues)
- Fed. Land Bank of St. Paul v. Bismark Lumber Co., 314 U.S. 95 (1941) (word “including” signals illustrative, not exhaustive, listing)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (textualist approach to ordinary public meaning when interpreting statutory terms)