William H. Veazey pled guilty to attempted enticement of a minor to engage in sexual conduct, 18 U.S.C. § 2422(b), and interstate travel for the purpose of engaging in a sexual act with a minor, 18 U.S.C. § 2423(b). At sentencing, the court determined that Veazey committed these offenses for the purpose of producing a visual depiction of sexually explicit conduct with a minor. The court then applied a “visual depiction” guidelines cross-reference that greatly increased Veazey’s guidelines sentencing range. The court sentenced Veazey to 324 months of imprisonment, followed by supervised release for a term of life. In this appeal, Veazey objects to the application of the “visual depiction” cross-reference. We affirm.
I.
When the early twentieth century thief, Willie Sutton, was asked why he robbed banks, he replied, “Because that’s where the money is.” In the early twenty-first century, if one were to ask sexual predators why they troll the internet, they might answer, “Because that’s where the children are.” Such was the case with William Veazey. Law enforcement officers are well aware that predators have fled the public playground in favor of the anonymous internet in seeking out their victims. For that reason, some officers enter internet chat rooms posing as children, serving as bait to the unsuspecting predators. On November 18, 2004, a Decatur, Illinois, male police detective signed onto Yahoo Instant Messenger using the screen name “jodijohnsonl5,” and entered a chat room titled “ *!SeXy HiGh SchOol HoTTiEs!*.” Veazey was signed into the chat room as “nogames89,” and on seeing “Jodi” enter, he began to send her instant messages. The fictitious Jodi identified herself as a 15 year-old girl from Decatur, Illinois, and Veazey (who was 61 at the time) identified himself as a 48 year-old man from Texas.
Jodi and Veazey engaged in numerous online conversations over the next month and a half, and Jodi eventually introduced Veazey to a fictitious 15 year-old friend named “Missy,” who used the screen name “missyinill3.” 1 With a female detective posing as Jodi, Veazey also spoke on the phone numerous times with Jodi, in calls the officers recorded. The content of the online and telephone conversations is graphic, demonstrating the techniques of a man who appears well-practiced in the art of manipulating vulnerable adolescents and well-versed in the shorthand phrases that teens use to communicate on the internet. 2
Within minutes of meeting Jodi online for the first time, Veazey asked Jodi if she would “care to swap pics.” Gov. Ex. 1, at 20. Jodi declined to send a picture of herself, claiming her mother had taken her camera away. In that first conversation,
In Jodi’s third internet chat with Veaz-ey, he asked for a picture soon so that he could look at her every night. This request came shortly after a graphic exchange where Veazey again indicated his wish to have sex with Jodi when he came to Decatur. Gov. Ex. 1, at 36-38. In the fourth chat, Veazey again requested a picture of Jodi, and instructed her on scanning the photo into her computer and then sending it to him via e-mail. He asked if Jodi had discussed taking pictures with her girlfriend and told her he was proud of her when she responded affirmatively. Gov. Ex. 1, at 42-44. In subsequent exchanges, Veazey again was the first to raise the subject of pictures, giving Jodi his home address, instructing her to mail “lots of pics,” and asking her if she had sent pictures yet. See e.g., Gov. Ex 1, at 51, 54, 55, 60. In early December, a female detective posing as Jodi spoke with Veazey on the phone for the first time. He asked again for a picture and when she asked if he meant a “regular picture,” he replied, “Well, yeah. That wouldn’t be very gentlemanly if I asked for anything more now would it.” Def. Ex. 1, at 6. Later in the same call, though, Veazey admitted that he really wanted a nude picture of her, but that he would have to “save that for in person.” Def. Ex. 1, at 25-26. Jodi subsequently sent a picture to Veazey, telling him it was “not the knd u want tho.” Gov. Ex. 1, at 60. The detectives used a non-revealing photo donated by a female law enforcement officer depicting that officer when she was a teenager. Veazey told Jodi this picture was acceptable so long as he could see her face. By the middle of December, Veazey had not received the picture Jodi told him she sent, and he asked her to send another. He also told her that without a picture, a phone number and an address, he would not come to visit her. because of his experience with the other girl who had not shown up for his visit.
Jodi then introduced Missy into the online chats. One of Veazey’s first questions to Missy was whether the girls had taken some pictures for him. Missy asked if Veazey wanted pictures when they met in person and he replied that he wondered what Missy looked like. Gov. Ex. 1, at 111. Later in the chat, Veazey again asked Missy to send a picture, telling her he already had a picture of Jodi. Gov. Ex. 1, at 112. In a subsequent chat, Veazey again asked Missy for a picture, telling her he would accept a regular picture. Gov. Ex. 1, at 125-26. Of course, this reference to a “regular” picture is surrounded by Veazey’s questions about Missy’s fantasies and sexual preferences. When Missy asked Veazey what kind of pictures they would take when he visited, he responded, “whatever kind u want.” Gov. Ex. 1, at 127-28. Missy asked whether he meant he would take pictures of them having sex. He told her that if she liked what she saw, she could take a picture, and he would do the same. He told Missy in graphic language that if she wanted a picture of them having sex, she could take one or have Jodi take one. Id. Later in the same chat, Missy asked about pictures again, and Veazey said that if Missy did not want any pictures taken, then he would not take any. After Missy assured him she had no problem with pictures, he told her she could tear up any pictures she did not like. He told her he had a digital camera, a camera that developed pictures immediately, and a camcorder. Gov. Ex. 1, at 131-32. When Missy asked if he was bringing them all, he replied, “if u want me too.” Id. Missy told Veazey that she wanted him to bring the cameras and that she might like to make a movie. Veazey replied, “i like the way u think.” Gov. Ex. 1, at 132.
In a later online chat with Jodi, Veazey told Jodi that Missy wanted to be filmed. Gov. Ex. 1, at 144. Jodi indicated that was agreeable to her, and the next time Veazey chatted with Missy, he reported that “jodi liked the idea of a movie too.” Gov. Ex. 1, at 147. During a particularly graphic exchange with Missy in which Missy indicated she was masturbating, Veazey remarked, “damn wish u had a cam.” Gov. Ex. 1, at 149-50. The term “cam” had appeared in prior conversations as shorthand for camera. In a phone call with Jodi a few days before his scheduled trip to Decatur, Veazey discussed bringing camera equipment to take pictures of their sexual activities. Veazey specifically mentioned a Polaroid camera, a digital camera, and a camcorder. Def. Ex. 6, at 17-18. Veazey was concerned about the cost of a battery for his camcorder and Jodi told him he would just have to remember the girls’ dance (they had previously discussed the girls performing a strip tease for Veaz-ey) in his head. Veazey replied, “Hell, remember it in my head. Shoot, I’ll be
When Veazey arrived in Decatur on January 7, 2005, he was mét by law enforcement officers and taken into custody. He was carrying with him, among other things, a Polaroid camera, a digital camera and a camcorder. Veazey was charged in a two-count indictment with using the internet, a facility of interstate commerce, to knowingly persuade, induce, entice and coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. § 2428(b). Veazey pled guilty to both counts. As we indicated above, the district court sentenced Veazey to a 324 month term of imprisonment, applying a guidelines cross-reference relating to creating visual depictions of criminal sexual conduct with minors.
II.
Prior to sentencing, a probation officer prepared a Presentence Report (“PSR”). The PSR recommended application of the “visual depiction” cross-reference, and cited relevant portions of the transcript in support. Veazey objected to the PSR’s characterization of the online and telephone transcripts. According to Veazey, the PSR made it appear as if discussions of sexual photographs and videos permeated the conversations when in fact such discussions constituted a minuscule portion of the transcripts. Veazey also argued that the cross-reference should apply only when the purpose of the defendant’s prohibited sexual conduct was to produce pictorial representations of that conduct. Veazey contended that his purpose was to entice the minors to have sex, not to take sexually explicit photographs. The photos, he argued, would have been a by-product of, rather than the purpose of, the encounter. The probation officer agreed that references to photos or videos occupied only 5% of the online conversations and 3% of the phone transcripts. Not all of these references were to sexually oriented pictures. Because Veazey objected to the PSR’s characterization of the transcripts and to the sufficiency of the evidence, the district court reviewed all of the transcripts to place the photo references in context. The court noted that the discussions of sexual pictures occupied approximately the same amount of time as discussions about the price of airplane tickets. The court agreed that Veazey’s primary purpose was to have sex with Jodi and Missy. The court found, however, that taking sexually oriented pictures was a secondary purpose of Veazey’s criminal conduct, and that Congress intended the cross-reference to apply in that situation. The court therefore applied the cross-reference.
On appeal, Veazey contends that there was only a “scintilla of evidence” that he committed these offenses for the purpose of producing a visual depiction of the conduct. According to Veazey, that evidence consists of a few e-mail messages where Veazey requested a nude picture; Veazey’s agreement to take sexually explicit pictures if that was what the agents posing as minors wanted; and Veazey’s possession of three cameras when he arrived in Decatur for a sexual encounter with what he believed were two minors. Veazey contends that the evidence was “woefully insufficient” to support application of the cross-reference because nude pictures are not in and of themselves pornographic; one of the agents was the first to broach the topic of pornographic videos; and the agents
We review the district court’s findings of fact at sentencing for clear error.
United States v. Swanson,
If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, apply § 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), if the resulting offense level is greater than that determined above.
U.S.S.G. § 2G1.3(c)(l). Section 2G2.1, the cross-reference to which Veazey objects, provides for a base offense level of 32. The Application Notes for § 2G2.1 provide that a “minor” includes, among other things, “an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.” U.S.S.G. § 2G2.1, Application Note 1. To the base offense level of 32, the district court added two levels because the minor involved was older than twelve and younger than sixteen years old, and two levels because the offense involved the use of a computer or an interactive computer service to solicit participation by a minor in sexually explicit conduct, for a subtotal of 36. See U.S.S.G. § 2G2.1(b)(l)(B); § 2G2.1(b)(6)(B). The multiple count adjustment resulted in another 2 level increase under § 3D1.4. From the resulting level of 38, the district court subtracted 3 levels for acceptance of responsibility under § 3El.l(a) and (b)(2). This resulted in a total offense level of 35. The court then added 5 levels under § 4B1.5(b)(l), which applies to repeat and dangerous sex offenders against minors, because Veazey had previously pled guilty in Texas to indecency with a child/sexual contact. This resulted in an adjusted offense level of 40, a criminal history category of II, and a guidelines range of 324 to 405 months. The statutory maximum was 30 years. The court sentenced Veazey to 324 months, the low end of the guidelines range.
In doing so, the court concluded as a matter of law that the cross-reference could apply when the defendant’s purpose to create a visual depiction was a secondary, rather than a primary, purpose of the offense conduct. Whether the cross-reference may apply when there is a secondary, rather than primary, purpose to produce a visual depiction is a question of first impression in our circuit. Application Note 5 for § 2G1.3 provides that the cross-refer
In the case of a virtually identical guideline cross-reference, the Ninth Circuit concluded that the cross-reference should apply when the defendant has only a secondary purpose to produce a visual depiction of sexually explicit material.
United States v. Hughes,
We see no reason to depart from the sound reasoning of our sister circuit interpreting a parallel provision.
See also United States v. Garcia,
We turn then to the district court’s factual conclusion that Veazey possessed a secondary purpose to create a visual depiction of sexually explicit conduct with minors. The Application Notes to § 2G2.1 provide that “sexually explicit conduct” has the meaning given that term in 18 U.S.C. § 2256(2). That statute defines sexually
Veazey cites
United States v. Crandon,
We find that there was more than enough evidence in the record to support the district court’s conclusion that Veazey had a purpose to create a visual depiction of sexually explicit conduct. Although the references to photos or videos of any sort occupy a small percentage of the online and telephone transcripts, even a single reference may be sufficient, especially in the context of the extraordinarily explicit conversations and in light of the three cameras Veazey possessed when he was arrested. As the district court noted, a single reference to a particular sex act was sufficient for Veazey to demonstrate an intent to carry through with that act. In particular, the district court noted, the transcripts contained a single reference to anal sex and Veazey arrived in Decatur with a substance intended to facilitate that act. 4
We also reject as frivolous Veazey’s contention that he merely requested nude photographs that would not meet the definition of sexually explicit conduct. In addition to requesting nude photographs of both Jodi and Missy, Veazey suggested that the girls engage in particular sex acts with each other and send him photographs
Finally, we reject Veazey’s claim that he was simply complying with the undercover agents’ requests to bring camera equipment to Decatur. First, this characterization of the evidence is untrue as a factual matter. Veazey was the first person to discuss photographs, and in fact asked for a nude photo of Jodi in their second online exchange. Only after Jodi balked at his repeated requests for pictures (“u want me or jus pics .... i really hope u wasnt jus sayin all tha fer pics”) did Veazey pull back and moderate his language. The discussions of camera equipment arose from Veazey’s repeated requests for nude photos, photos of Jodi and Missy engaging in sexual conduct and photos of the planned meeting in Decatur.
Veazey cites, among other things, a telephone call with Jodi as evidence that it was the agents’ idea to bring camera equipment and that he merely agreed with this request. In that exchange, Jodi asked, “Were you wanting to do pictures too?” R. 28-6, at 17. Veazey replied, “Yeah, if you don’t care.” When Jodi then raised the issue of a printer, Veazey replied that he had a camera that develops the picture immediately, without the need for a printer. He spontaneously added that he also had a digital camera but did not know how to use it. When Jodi told him digital cameras were easy to operate, Veazey replied, “Alright. I’ll bring it too then.” R. 28-6, at 17-18. As evidence that the agents encouraged him to bring the cameras after he expressed reluctance to do so, he cites another telephone call with Jodi:
Veazey: I don’t know about the camcorder thing. That battery may be pretty expensive.
Jodi: Oh. Okay.
Veazey: I mean, I’ll bring it and we’ll check but.
Following a brief discussion of the expense of the unusual battery required, Jodi said, “Oh. That’s okay. Don’t worry about it.” R. 28-7, at 25-26. Veazey replied by saying they could go to Walmart to see if he could purchase the battery there.
Id.
To suggest that the agents raised the subject of camera equipment and encouraged a reluctant Veazey to bring the cameras requires a fanciful interpretation of the evidence. As these exchanges indicate, Veaz-
Second, to the extent that Veaz-ey is claiming sentencing manipulation, there is no such defense in this circuit.
United States v. Wagner,
Affirmed.
Notes
. For the sake of clarity and brevity, we will refer to the officers posing as Jodi and Missy by those assumed names. For the purposes of the relevant sentencing guidelines, a minor is a person under the age of 18 or an undercover law enforcement officer who has represented to the defendant that he or she is under the age of 18. See U.S.S.G. § 2G2.1, Application Note 1.
. The internet exchanges are full of abbreviations, slang, misspellings and grammatical errors. We will leave those errors intact when we quote relevant passages.
. Hughes interprets the version of § 2G1.1 in effect at that time. That section was subsequently revised, but the language interpreted by the Hughes court still appears in a number of guidelines, including the one that we interpret today.
. We note that there were two or three such references but the district court's reasoning still stands. See Gov. Ex. 1, at 126, 133.