29 F.4th 960
8th Cir.2022Background
- In July–August 2019 Nathan Kempter (age 32) communicated online with C.I., a 14‑year‑old, first via Reddit then Tumblr; Kempter knew her age.
- Conversations began about helping C.I. run away but the dialogue shifted to explicit sexual topics and Kempter asked about sex, bondage, and selfies.
- Kempter drove to Lincoln, Nebraska, picked C.I. up, covered her in the car, touched her sexually during the drive to Highlands Ranch, Colorado, and stopped in Lexington to buy clothes and a blanket; C.I. later had bruising and neck swelling.
- Police traced Kempter’s travel using phone records and tower pings; Kempter and C.I. were detained at his Colorado home; Kempter admitted C.I. was 14.
- Kempter was convicted by a jury of attempted enticement of a minor (18 U.S.C. § 2422(b)) and interstate travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)); sentenced to 228 months’ imprisonment concurrent on both counts with 12 years supervised release.
- At sentencing the court applied two two‑level Guidelines enhancements (undue influence and obstruction), imposed a polygraph condition for supervised release, and ordered $13,895.36 restitution for therapy and educational accommodations.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Kempter) | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted enticement (§ 2422(b)) and interstate travel (§ 2423(b)) | Chats and actions show intent to persuade/entice and to engage in sexual conduct; physical touching and travel were substantial steps | Chats were hypothetical and primary intent was to help C.I. run away; travel was to aid escape, not sexual conduct | Affirmed — viewing evidence in government’s favor a reasonable jury could find intent to entice and intent to engage in illicit sexual conduct during interstate travel |
| USSG § 2G1.3(b)(2)(B) undue‑influence enhancement | Grooming and manipulation of a runaway minor, plus 18‑year age gap, justify enhancement | Age difference alone shouldn’t control; C.I. voluntarily left and resisted arrest, rebutting undue influence | Affirmed — presumption from ≥10‑year age gap unrebutted; facts support grooming and undue influence |
| USSG § 3C1.1 obstruction enhancement | Repeated efforts to evade detection, instructing deletion of accounts/call history, research on abduction laws, and hiding C.I. show willful obstruction | No reason to expect law enforcement; deletions/preparation occurred before an investigation began | Affirmed — conduct was purposefully calculated to impede detection; post‑investigation and pre‑investigation conduct may be covered under the Guidelines notes; factual finding not clearly erroneous |
| Polygraph condition of supervised release | Defendant’s evasive behavior and attempts to delete evidence justify polygraph testing as related to offense, treatment, and monitoring | Condition not rationally related or necessary to § 3553(a) purposes | Affirmed — district court acted within discretion; record supports a rational basis for the condition |
| Restitution authority and amount under 18 U.S.C. § 2429/§ 2259 | § 2429 requires payment of the victim’s “full amount of losses”; definition in § 2259(c)(2) applies despite cross‑reference error; awarded therapy/educational costs were proximately caused | Cross‑reference in § 2429(b)(3) points to § 2259(b)(3) (enforcement), creating ambiguity; some claimed losses attributable to other perpetrators | Affirmed — court treated cross‑reference as a scrivener’s error and applied § 2259(c)(2) definition; restitution amount falls within permissible proximate‑cause and Paroline standards and was not an abuse of discretion |
Key Cases Cited
- United States v. King, 898 F.3d 797 (8th Cir. 2018) (standard for sufficiency review)
- United States v. Shinn, 681 F.3d 924 (8th Cir. 2012) (elements of § 2422(b))
- United States v. Willins, 992 F.3d 723 (8th Cir. 2021) (element for § 2423(b) interstate‑travel intent)
- United States v. Hagen, 641 F.3d 268 (8th Cir. 2011) (undue‑influence enhancement applies to grooming/manipulation)
- United States v. Dillard, 370 F.3d 800 (8th Cir. 2004) (evasive conduct supports inference defendant believed he was/would be under investigation)
- United States v. Water, 413 F.3d 812 (8th Cir. 2005) (discussion of when investigation begins for § 3C1.1)
- Owner‑Operator Indep. Drivers Ass’n v. United Van Lines, 556 F.3d 690 (8th Cir. 2009) (scrivener’s‑error doctrine permits correcting obvious cross‑reference mistakes)
- Paroline v. United States, 572 U.S. 434 (2014) (restitution must comport with defendant’s relative role in causal process)
- United States v. Hoskins, 876 F.3d 942 (8th Cir. 2017) (district court discretion in apportioning restitution when multiple causes contribute)