*2 WHITE, аnd Before MOORE Circuit TARNOW, Judge.* Judges; District MOORE, J., opinion delivered court, TARNOW, D.J., joined. in which WHITE, 448-49), (pp. J. delivered opinion. separate dissenting
OPINION MOORE,
KAREN NELSON Circuit Judge.
DefendanL-Appellant Robert (“Shafer”) appeals his sentence of 360 resulting from imprisonment months of his plea enticing to one count of guilty sexually explicit conduct for engage producing depictions visual purposes and which were of such conduct using shipped material which had been foreign com- transported in interstate and 2251(a) merce in violation of 18 U.S.C. demand аgreement forfeiture his 2253(a)(1) §§ to 18 U.S.C. * Tarnow, by designation. Michigan, silling The Honorable Arthur J. Judge District for the Eastern District States
(a)(3). pictures admitted to Specifically, Shafer on Shafer’s and Amundson’s com- causing eleven-year-old boy “an to undress puters, having any inappropri- but denied conduct, engage ate contact with either Shafer or Amund- to, including, but not limited masturbation son. *3 genitals and the lascivious exhibition of his 29, 2006, On June law-enforcement offi- pubic produced and area. seven [Shafer] cials executed а search warrant on Shafer (7) sexually digital images explicit home, and Amundson’s seizing various materials which using had been disks, DVDs, computers, floppy CDs, vid- shipped transported in and and interstate eotapes, and an hard external drive. Shaf- commerce,
foreign including, but not limit- primary er was the computer, user of one to, Sony digital ed Mavica brand camera suspected which contained 144 images that was manufactured outside of the State (“J.A.”) Michigan.” Appendix Joint at child pornography dating from Novembеr 1-2). (Indictment 14-15 5, Shafer’s sole April total, 2006. In the search argument appeal on is that images uncovered “20 of child pornogra- clearly sentencing erred at when it phy 25,086 production; images of child imposed a two-level enhancement 1,244 pornography; and pornograph- child to the U.S. SENTENCING GüIDELINES MANÜAL (Presentence ic videos.” J.A. at 194 Inves- (“U.S.S.G.”) 1(b)(2)(A) (2006). § 2G2. For ¶ (“PSR”) 35). tigation Report at 9 below, the reasons discussed we VACATE discovered, images Of the several includ- Shafer’s sentence and REMAND for re- images ed of B.H. expos- either naked or sentencing. genitals his picture, buttocks. One AND I. FACTS PROCEDURE taken years old, when B.H. was eleven depicted masturbating. B.H. B.H. was dispute. The facts of this case are not in years thirteen old at the photos time these Shafer and codefendant Kurt Amundson were discovered. (“Amundson”) operated a licensed foster- 20, 2006, Michigan. care home in On June 6, 2007, On June a grand jury returned County, Michigan, Van Burén Sheriffs a six-count indictment charging Shafer and Department received information from Amundson with sexually exploiting chil- C.J., boy in Shafer’s and Amund- dren. Law-enforcement officials arrested care, father, son’s and pertained C.J.’s 7, Shafer and Amundson on June 2007. pornography illegal child and other con- proffer Pursuant to a agreement, the FBI involving duct and Shafer Amundson. C.J. 18, July interviewed Shafer on 2007. At stated while he was under Shafer’s time, “Shafer admitted molesting B.H. care, boys Amundson’s he and other since he approximately years was old.” join would Shafer and Amundson in the ¶ (PSR 47). J.A. at 195 at 10 Shafer be- occasion, hot tub at the residence. On one lieved this molestation occurred “once ev- C.J. saw Amundson and the hot ery two year weeks over a five or J.G., six tub with another minor ward of period.” Shafer, Id. Shafer B.H.,1 spe- Amundson further detailed a minor boy; everyone cific the hot tub was instances which he and naked. Amundson C.J. also reported finding pornographic molested B.H. Shafer also admitted to sex- mother, Shafer, ("PSR”) ¶ 1. 62). gation Report B.H.'s a friend of had asked There is 'Big Shafer and to "act Amundson as a Broth- no evidence that B.H. was a ward of Shafer (Presentence er’ to B.H. J.A. at 198 Investi- or Amundson. children, individual and thus do not encom- denied another assaulting other but ually self-masturbation. pass J.G.2 intercourse with having sexual ever responded to The district court guilty pleaded July On objections sentencing hearing at Shafer’s indictment, enticing a count one of During argument on December con- engage in minor to enhance- regarding producing visual purposes for the duct ment, Shafer conceded there was evi- were conduct and which of such depictions personally physi- dence “that he had direct had material which bеen using BH a but cal contact with sexual nature transported interstate shipped and respect to the offense of convic- Tr. Hr’g tion.” J.A. at 120 in violation foreign commerce *4 judge overruled Shafer’s The district ob- 2251(a), to the forfeiture § and consented 2G2.1(b)(2)(A) jection § enhance- 2253(a)(1) §§ allegation under 18 U.S.C. ment, to im- finding grounds support two (a)(3) in count six. Count expressed and posing the enhancement. that Shafer “caused specifically one stated that, First, judge the district found al- en- boy to undress and eleven-year-old act,” by as defined though “sexual conduct, including, sexually explicit in gage 2246(2), § requires U.S.C. one individual to, and the not limited masturbation but individual, to make contact with another and genitals of his lascivious exhibition 2246(3) § plain language “digital seven pubic area” and broader, defining “sexual contact” is cover- us- images of when done with the ing self-masturbation shipped had been and ing materials which de- gratify intent to arouse or foreign and com- transported interstate masturbating person of either the sire 1-2). (Indictment at merce.” J.A. at 14-15 Specifically, the district person watching. § defined judge stressed that “sex- provided to A PSR was ordered to include “the intentional ual contact” cal- prior sentencing. to PSR Shafer any ... ... of touching genitalia level as 32 base offense culated Shafer’s person masturbating “a person” and that multiple enhancements. imposed any genitalia caught objections to the raised several Shafer namely, his or her own.” J.A. person, sentencing memorandum. Most PSR 29). (Sent. Hr’g Tr. at The district appeal, purposes of this important can mas- person found that a judge further objected to a two-level enhance- Shafer humili- “with the intent turbate pursuant ment awarded ate, harass, gratify arouse or degrade, or 2G2.1(b)(2)(A), applies when “the which any person,” as re- the sexual desire of the commission of offense involved 2246(3), quired by “and the desire contact.” U.S.S.G. act or sexual of the] include the person [desire could argued that both Shafer could masturbating, or in this case person filming people act” and the term of the] the term “sexual include the [desire masturbation], Id. namely, [Shafer].” touch [the one individual to require butt, assertion, though it hurt and even [J.G.’s] vates in Contrary J.G. claimed to Shafer’s " down, they and that's (pause) [J.G.] .... held 'licked [J.G.’s] and Amundson ” theirs; (ellipsis they hurt arm.' Id. [J.G.’s] and made when penis made lick [J.G.] PSR). charges (pause) No alterations privates their butts.' J.A. put [J.G.] [J.G.’s] relating ¶ 61). against to this accu- (PSR alleged were filed at 13 J.G. further " 'put pri- sation. their that Shafer and Amundson Second, 2G2.1(b)(2)(A) judge the district found for hancement case, (1) purposes of this is because: “sexual contact” does not in- limited (2) clude self-masturbation and Shafer did of conviction. Rath- specific not commit “sexual contact” that can er, think, offense, say that I not be considered “relevant pur- conduct” for the offense of involved the poses of Although the enhancement. we commission of a sexual act or sexual disagree with Shafer’s assertion that “sex- implies suggests contact more and ual contact” does not include self-mastur- pattern of conduct involving entire bation, we сonclude that the district court’s victim, particular at least a such imposition of an enhancement under as BH in ranging from earliest supported by cannot be age evidence of that at 8 to the offense theory either advanced of conviction at all part and court. parcel of the offense. Hr’g
J.A. at 126
Tr. at
A. Standard of Review
district judge
“grooming
elaborated that
part
conduct was an admitted
of what was
We review the sentencing court’s
*5
going
force;
by
on here. This was not sex
interprеtation
guidelines
de novo
by
it was sex
trust. And that
involves
and the district court’s
findings
factual
ongoing
ongoing
acts and
contact.” Id.
Corrado,
clear error. United States v.
304
judge
“any-
district
concluded that
(6th Cir.2002)
593,
F.3d
(citing
607
United
thing related to that particular minor vic-
(6th
v. Swiney,
397,
States
203 F.3d
401
tim in the house of the co-defendants as
Cir.),
denied,
1238,
cert.
530 U.S.
120 S.Ct.
part of their
relationship
overall
is fair
2678,
(2000)).
court recalculated Shafer’s offense level to Scope B. Contact” under “Sexual 18 history be awith criminal level of I. 2246(3) U.S.C. apрlicable guidelines range is 324 to Shafer contends that the term “sexual months; however,
405 statutory due to the contact” does not include self-masturba- maximum for the offense to which Shafer tion. party provided Neither the court pleaded, guidelines range was set addressing caselaw whether self- at 324 to 360 months. The district court by masturbation is covered sentenced Shafer to 360 impris- months of 2246(3)’s definition of “sexual contact.” onment. timely appealed. We also were unable to locate such a case II. ANALYSIS Thus, circuit. this issue of statuto- ry Shafer contends that the district interpretation appears question to be a erred when it imposed the two-level impression. en- of first
445
touching
not involve the
statutory- cause it does
requiring
matter
“‘A
another,
text of the statute re-
plain
requir
of law
question
is a
interpretation
contact”
a broader
that “sexual
veals
review,
starting point
novo
ing de
touching
the sexual
encompasses
term
language of
is the
interpretation
Dedman,
has merit.
argument
This
of oneself.
v.
Stаtes
itself.’ United
statute
2246(3)
Cir.2008)
that “sexual
(6th
clearly states
Section
(quot
584-85
527 F.3d
touch-
involves certain intentional
Caldwell,
49 F.3d
v.
States
ing United
in-
(second
“any
“Any person”
Cir.1995))
person.”
(6th
of internal
set
251
omitted).
or her-
person touching
cludes a
himself
“Absent
marks
quotation
Collegiate
self. See Merriam
intention to
legislative
Webster’s
clearly expressed
Dictionary
(10th ed.1995) (defining
53
language
statutory]
contrary,
th[e
one
“any”
to indicate
as “EVERY—used
as conclu
ordinarily
regarded
be
must
restriction”).
argu-
This
selected without
Safety Comm’n
Prod.
sive.” Consumеr
by the fact that the
Inc.,
102, 108,
strengthened
ment is
447 U.S.
Sylvania,
GTE
(1980).
requires
of “sexual act”
definition
2051, L.Ed.2d 766
S.Ct.
person.”
“of
another
states
U.S.S.G.
2246(2)(D).
clearly
person”
“Another
the commis-
the offense involved
“[i]f
in-
two individuals to be
requires at least
contact,
or sexual
act
sion of
Thus,
Congress
act.
because
volved in the
2 lev-
level]
base offense
increase [the
language when de-
chose to use different
“Sexual
els.” U.S.S.G.
contact,” it seems clear that
fining “sexual
are defined
“sexual contact”
act” and
not to limit “sexual cоn-
Congress intended
(3), respectively.
§§
U.S.C.
way it limited “sexual
tact” in the same
applic. n.
U.S.S.G.
act.”
defined,
part,
in pertinent
act”
*6
“Sexual
through
not
touching,
“the intentional
as
that,
argues
because Con
Shafer
genitalia
of the
another
clothing,
the
of
self-
include
gress
“specifically
failed
the
of 16
has not attained
person who
of ‘sexual
in the definition
masturbation
humiliate,
abuse,
years with an intent
the role
contact,’
not “invade
we should
harass,
gratify
or
the
degrade, or arouse
terms,”
statutory
Congress and definе
any
person.”
desire of
that
we should hold
contends that
added).
2246(2)(D) (emphasis
§
Section
act,”
contact,”
requires
like “sexual
“sexual
2246(3)
as “the
defines “sexual contact”
person. Shaf
to touch another
person
one
directly or
touching, either
intentional
However,
that it is
appears
it
er Br. at 14.
anus,
genitalia,
of the
through
clothing,
the
the role of
trying to “invade
who is
breast,
thigh,
inner
or buttocks
groin,
import
a re
by attempting
Congress”
humili-
with an intent
any person
the
a clear statute
into
quirement
harass,
gratify
arouse or
ate,
degrade, or
Nothing in
language
support.
does not
18
person.”
the sexual desire
2246(3)
holding that more
§
a
supports
added).3
2246(3) (emphasis
§
U.S.C.
“sex
be involved for
person
one
must
than
Simply because the
to occur.
although
ual contact”
argues
The Government
that self-
specifically state
does not
act” be-
statute
is not
“sexual
self-masturbation
Thus, we
argue
2G2.1(b)(2)(A)
not
otherwise.
requires
the
Shafer does
also
Section
parameters of
a "sexual
not decide the
of conviction "involved”
need not and do
case,
In the instant
act” or "sexual contact.”
as
used
"involved”
the
term
of conviction
it
that the offense
is obvious
self-masturbation, and
the act of
"involved”
qualifies as “sexual
masturbation
contact” with the intent to fulfill either his or her
Congress
not mean that
gratification
intended for own sexual
or the gratification
excluded,
an act to
especially
However,
such
be
when of the onlooker.
per-
when the
squarely
self-masturbation falls
within the
son
engaging
the sexual contact is an
2246(3).
рlain
language of
eleven-year-old boy,
Because the
drawing such
infer-
an
language is clear and there is not a “a
legally
ence is not
sound.
In the instant
clearly expressed legislative
case,
intention to
just
likely,
is
as
likely,
if not more
2246(3)
contrary,”
the
we must read
to that B.H.
merely
self-masturbated
to gain
exactly
it says.
Consumer
mean
what
approval,
only
thus B.H.’s
Prod.,
U.S.
447 argued that his ille- a defendant Magana, the clear from is otherwise or specified 1(H). n. applic. May § 1B1.1 on entry into United States the gal context.” U.S.S.G. Furthermore, is defined conduct relevant 24, 2004, in for his preparation was done committed, aid- omissions “all acts and as 24, 2004, his offense drug offense of June commanded, counseled, in- abetted, ed, defendant conviction. Id. 686. The by the willfully duced, or caused procured, illegal entry constituted that the claimed during the occurred defendant and could not be counted relevant conviction, in offense commission the under 4A1.1 prior a sentence U.S.S.G. as offense, in the or fоr that preparation criminal history score. calculating his in avoid detection or attempting to course of rejected argu- the The Fifth Circuit Id. for that offense.” U.S.S.G. responsibility “[tjhere ment, no noting evi- [was] lB1.3(a)(l)(A). There is no evidence in record ... that Yerena-Ma- the dence act or sex- committed sexual that Shafer drug commit the offense intended to gana the during the commission ual contact at the time he which he was sentenced course of or of conviction5 We illegally the United entered States. responsi- or detection attempting avoid illegally not infer that he entered will There- of conviction. bility for the offense drug for’ of- country preparation ‘in fore, together reading provisions these fense, (empha- Id. at as he 689 requests.” instant light pertinent most added) (footnote omitted). could award sis under enhancement two-level analysis Yerenar-Magana’s find We acts or only if natural In most common and helpful. its prepara- committed omissions Shafer “in for” en- usage, phrase preparation involved of conviction tion the offense ready for “[t]hings get done to compasses act or sexual of a sexual the commission undertaking; preparatory event or an contact. Dictionary English Oxford measures.” pro- do not sentencing guidelines (last Online, www.dictionary.oed.com visit- prepa- “in phrase for the a definition vide 2009) (defining “prepara- February ed for,” little case- we have found ration tions”). that acts suggests This definition fact, In we analyzing phrase.6 law acts for” other рreparation “in done are any specif- only one ease that stated found act with that first performs the actor when “in prepa- regarding acts requirements ic “get ready for” purpose See an offense of ration for” conviction. Moreover, an intent lack of act. later Yerena-Magana, States v. Cir.2007). the realm (5th expand requirement would In Yerencir- F.3d further ex- with no offense of emphasize that Shafer important It is Gill, See, "us[ing], persuading], in- guilty e.g., United States pleaded planation. engage Cir.2003) enticing] (6th (noting ducing], and *8 F.3d “ purpose of for conduct personal use was not drugs for [possessing depictions of such producing of, visual to the commission part of or connected using materials and which were for, of the distri- or concealment preparation transported in shipped and which had been offense,” explanation); without bution-type at 14 foreign J.A. commerce.” interstate Phelps, 868-69 536 F.3d United States v. (Indictment 1). of con- This is the Cir.2008) (8th (holding did that an "offense above, offense itself explained viction. As this of the feder- during commission not occur trigger application could not offense, federal of- for the preparation al fense, attempting to avoid course of or in the offense,” fur- without federal cases, detection for the simply states that a court In most explanation). ther preparation for not done conduct is or is GO any
relevant conduct” include all that previous Shafer committed the preceded conduct that the offense of con- any with abusе intent to have B.H. later viction, if that even conduct was not words, done self-masturbate. In other the mere purpose prepare intent fact that there previous was sexual abuse the offense of conviction. There is no prove does not that previous abuse was support for a broad reading such of “in perpetrated in preparation the subse- preparation for” in the text guide- quent offense of conviction here. Without Therefore, lines or in the caselaw. we evidence of Shafer’s intent in inflicting the support conclude enhancement previous sexual uphold we cannot lB1.3(l)’s preparation based on “in for” enhancement under a language, there be record must evidence theory. relevant-conduct regarding the intent of the defendant in performing the alleged preparatory ac- III. CONCLUSION tions. (1) Because there is no evidence re- In the instant the record sup- does garding B.H.’s when he self-mas- port finding sexually that Shafer abused (2) turbated, and there is no evidеnce that B.H. prior to the offense of conviction and prior Shafer’s abuse of B.H. was done in that that abuse involved either “sexual preparation for the offense of contact” or a “sexual act.” J.A. at 120 we conclude that the two-level enhance- (Sent. 24) (“Mr. Hr’g Tr. at Shafer con- ment U.S. S.G. cedes that there’s evidence the form of not apply here. that tape indicating other personal- he Therefore, we VACATE Shafer’s sentence ly had physical direct contact with BH of a and REMAND for further proceedings respect nature but not with consistent opinion. with this conviction.”). However, offense of the rec- ord is completely devoid evidence re- DISSENT
garding Shafer’s intent in inflicting the previous Thus, sexual abuse on B.H. to WHITE, Judge, Circuit dissenting. affirm on “relevant grounds, conduct” we I Because understand the district court would have to conclude that Shafer’s “di- to have made a factual finding regarding rect physical contact with BH aof intent, B.H.’s finding which adequately nature” inwas preparation for the later rеcord, supported by I dissent. B.H., self-masturbation though even appeal In an of a criminal sentence there is no “[w]e evidence that Shafer did review de novo the sentencing court’s in prior those acts with the intent to have terpretation of the Sentencing B.H. Guidelines masturbate This we later. cannot do. statutes, and we review for clear error side-stepped The district court this issue its findings.” factual United States v. Cor by concluding case involved rado, (6th Cir.2002); 304 F.3d see “grooming conduct” that transformed all of alsо United States King, 516 F.3d previous Shafer’s sexual abuse of B.H. into (6th Cir.2008). relevant conduct. Hr’g J.A. Tr. at Although may be true that The district analyzed the relevant previous guideline sexual abuse B.H. concluded “the language *9 made it easier for Shafer to convince B.H. of [18 U.S.C. defining ] ‘sexual participate the offense of contact’ is much broader” than the lan- that fact does not by support (J.A. itself guage 125.) find- defining “sexual act.” at acts and sexual sexual ongoing involved statutory language the discussed The court the offense years preceding in the contact case: the instant it to applied in- that the agree not do of conviction—I says the statute in the language the intent to acted with that B.H. ference inten- the means term legal- “not desire is sexual gratify Shafer’s directly or either touching, tional It was a at 446-47. Maj. Op. ly sound.” genitalia, clothing, of the the through famil- had become B.H. fair inference that any per- body parts, of some other and en- sexual desires with Shafer’s iar caught masturbating is son, person them, with- activity satisfy in the gaged аny person, of the genitalia eleven he to whether regard out own, the intent with or her namely, his doing. what he was fully understood harass, humiliate, or degrade, of desire the sexual gratify or arouse on this basis. I affirm would any person desire of the any person, and masturbating, person include the
could people include the could in this case or I defendants. So it, namely, the filming the language of literal the think guideline statute, the applying even to the application possible narrowest its America, of STATES UNITED no oth- of conviction specific Plaintiff-Appellee, conduct, enough or contact related er enhancement. the warrant 125-26.) (J.A. majority agrees STEPHENSON, Defendant- Robert analysis but statutory court’s district Appellant. accepting application its stops short 06-2574. No. accept I facts. would statute its totali- conclusion in court’s district Appeals, Court United States ty- Circuit. Seventh any person “the desire holding that In April 2007. Argued masturbating, or person include could Feb. people film- Decided include the сase in this could defendants,” and that it, namely, ing application” possible “narrowest warrant enough to § 2G2.1 “is
U.S.S.G. enhancement,” implicitly the court engaging B.H.’s found gratify arouse or contact was It desire. and Amundson’s B.H. additional had quite possible in the sexual engaged when he intentions approval, defendant’s (e.g., gaining contact gratify- disapproval, avoiding defendant’s desires). However, his own court’s conclusion render clearly erroneous. unsupported either of conduct—which the entire pattern Given