United States v. Robert Pawlowski, 682 F.3d 205

Detective Havelka ran an undercover online sting on myYearbook, posing as a 15-year-old girl; Pawlowski interacted with the decoy via chat, email, and phone.
Pawlowski learned the decoy was 15 and discussed age-related topics and sex.
Pawlowski masturbated on webcam to the decoy and discussed meeting in person, including condom use.
Pawowski appeared at the meeting location and was arrested; a search of his home followed.
Pawlowski was indicted for attempted enticement of a minor under 18 U.S.C. § 2422(b); he was convicted after trial.
For sentencing, the court applied a two-level enhancement for sexual contact under U.S.S.G. § 2G1.3(b)(4)(A) based on masturbation, leading to a 121-month sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government’s remark violated the Fifth Amendment	Pawlowski: remark improper	Pawlowski: remark implied failure to testify	No plain error; trial context mitigates
Whether there was sufficient evidence Pawlowski believed the decoy was under 18	Pawlowski believed decoy was minor	Pawlowski lacked subjective belief in minor status	Sufficient evidence to support belief of a minor; conviction sustained
Whether masturbation constitutes sexual contact under § 2G1.3(b)(4)(A)	Pawlowski: masturbation not touching of another person	Government: ‘of any person’ includes self	Yes, masturbation qualifies as sexual contact under the statute

Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on comments on silence in criminal trials)
United States v. Mobley, 956 F.2d 450 (3d Cir. 1992) (statutory-interpretation canon in omission/inclusion)