U.S. v. Aldrich, (11th Circuit Ct. Appeals, April 27, 2009)
This is an appeal from a 168- month sentence for violation of 18 U.S.C. 2422(b), using a computer to entice a minor to engage in sexual activity. The defendant argued that the district court erred in applying a two-level enhancement at sentencing under U.S.S.G. 2G2.1(b)(2)(A) because the statute language was ambiguous. He also raised a due process challenge based on an “inaccurate” statement in his PSI.
The defendant challenged that his behavior (masturbation) did not warrant the enhancement because his behavior did not fall within the guideline that states: “the commission of a sexual act or sexual contact,” where “sexual contact” is defined as “the intentional touching…of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” The defendant insisted that “any person” could not include oneself because it was not possible for the defendant to “harass” himself. He argued that all six prohibited acts must be performed in order to violate the statute.
The Eleventh Circuit affirmed the District Court, finding that the use of the phrase “any person” in the Section 2246(3) definition of “sexual contact” demonstrates Congress’ intent to include masturbation among the acts to which the definition and the Section 2G2.1(b)(2)(A) enhancement was to apply. Moreover, the Court ruled that Section 2246(3) uses the conjunction “or” instead of “and” in its list of potential motives; therefore a defendant need only intend to “abuse, humiliate, degrade, or arouse or gratify” in order to violate the statute.
Defendant’s second argument stated that the PSI contained invalid factual premises that infringed on his constitutional rights, i.e., reading that Aldrich was masturbating “in front of” a minor when in fact he was in front of his web camera. The Court held that there is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera.
