United States v. Jerchower
631 F.3d 1181
| 11th Cir. | 2011Background
- Jerchower pled guilty to one count of using interstate commerce to attempt to induce a minor to engage in sexual activity under 18 U.S.C. § 2422(b).
- Indictment originally charged two counts; PSI computed offense level 39 with a 262–327 month range, including a two‑level enhancement for undue influence under § 2G1.3(b)(2)(B).
- The district court adopted PSI, applying the undue influence enhancement because Jerchower was 44 and the minor was represented as 9 by undercover officers.
- Amendment 732 took effect after sentencing, clarifying that undue influence does not apply when the only minor is an undercover officer, conflicting with prior circuit precedent.
- Jerchower argued Amendment 732 is a clarifying amendment and retroactive on appeal; the government argued otherwise or did not concede retroactivity.
- Court vacates and remands for resentencing in light of retroactive application of Amendment 732.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amendment 732 is clarifying or substantive as to § 2G1.3(b)(2)(B). | Jerchower contends Amendment 732 is clarifying and retroactive. | Government contends it is a substantive change or otherwise not retroactive. | Amendment 732 is a clarifying amendment and retroactive. |
| Whether the undue influence enhancement applies when the only minor is an undercover officer. | Undue influence should not apply because there is no real minor victim. | Prior circuit precedent allowed application in such cases. | Retroactive clarification precludes applying the enhancement; do not impose two-level increase. |
Key Cases Cited
- United States v. Faris, 583 F.3d 756 (11th Cir. 2009) (guidelines interpretation; retroactivity of clarifying amendments)
- United States v. Vance, 494 F.3d 985 (11th Cir. 2007) (undue influence applied where no real victim (undercover) under earlier precedent)
- United States v. Root, 296 F.3d 1222 (11th Cir. 2002) (undue influence applied with undercover officer as victim)
- United States v. Summers, 176 F.3d 1328 (11th Cir. 1999) (text vs commentary; guides analysis of substantive vs clarifying amendments)
- United States v. Descent, 292 F.3d 703 (11th Cir. 2002) (clarifying amendments retroactive under Descent framework)
- United States v. Armstrong, 347 F.3d 905 (11th Cir. 2003) (clarifying amendments retroactive effect)
- United States v. Stinson, 30 F.3d 121 (11th Cir. 1994) (clarifying amendments guidance on retroactivity)
- United States v. Dedeker, 961 F.2d 164 (11th Cir. 1992) (commentary-led interpretation standards)