AMENDMENT 732

Amendment: The Commentary to §2A3.2 captioned "Application Notes" is amended in Note 3(B) in the paragraph that begins "Undue Influence" by adding at the end "The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring."; by inserting after the paragraph that begins "Undue Influence" the following:

"However, subsection (b)(2)(B)(ii) does not apply in a case in which the only ‘minor’ (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.";

and in the paragraph that begins "In a case" by striking ", for purposes of subsection (b)(2)(B), that such participant unduly influenced the minor to engage in prohibited sexual conduct" and inserting "that subsection (b)(2)(B)(ii) applies".

The Commentary to §2A3.2 captioned "Background" is amended by striking "two-level" and inserting "four-level" each place it appears.

The Commentary to §2G1.3 captioned "Application Notes" is amended in Note 3(B) in the paragraph that begins "Undue Influence" by adding at the end "The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring."; by inserting after the paragraph that begins "Undue Influence" the following:

"However, subsection (b)(2)(B) does not apply in a case in which the only ‘minor’ (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.";

and in the paragraph that begins "In a case" by striking ", for purposes of subsection (b)(2)(B), that such participant unduly influenced the minor to engage in prohibited sexual conduct" and inserting "that subsection (b)(2)(B) applies".

Reason for Amendment: This amendment addresses a circuit conflict regarding application of the undue influence enhancement at subsection (b)(2)(B)(ii) of §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) and at subsection (b)(2)(B) of §2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor). The undue influence enhancement applies if "a participant otherwise unduly influenced the minor to engage in prohibited sexual conduct." The Commentary to both guidelines states that in determining whether the undue influence enhancement applies, "the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior." The Commentary also provides for a rebuttable presumption of undue influence "[i]n a case in which a participant is at least 10 years older than the minor."

In both guidelines, the term "minor" is defined to include "an individual, whether fictitious or not, who a law enforcement officer represented to a participant . . . could be provided for the purposes of engaging in sexually explicit conduct" or "an undercover law enforcement officer who represented to a participant that the officer had not attained" the age of majority.

Three circuits have expressed different views on two issues: first, whether the undue influence enhancement can apply in a case involving attempted sexual conduct; and second, whether the undue influence enhancement can apply in a case in which the only minor involved is a law enforcement officer. Compare United States v. Root, 296 F.3d 1222, 1234 (11th Cir. 2002) (holding that the undue influence enhancement in §2A3.2 can apply in instances of attempted sexual conduct, including a case in which the only "victim" involved in the case is an undercover law enforcement officer), and United States v. Vance, 494 F.3d 985, 996 (11th Cir. 2007) (holding that the undue influence enhancement in §2G1.3 can apply in a case in which the minor is fictitious), with United States v. Mitchell, 353 F.3d 552, 554, 557 (7th Cir. 2003) (holding that the undue influence enhancement in §2A3.2 "cannot apply in the case of an attempt where the victim is an undercover police officer", and suggesting that it cannot apply in any case in which "the offender and victim have not engaged in illicit sexual conduct"), and United States v. Chriswell, 401 F.3d 459, 469 (6th Cir. 2005) (holding that the undue influence enhancement in §2A3.2 "is not applicable in cases where the victim is an undercover agent representing himself to be a child under the age of sixteen" but leaving open the possibility that it can apply in other instances of attempted sexual conduct).

The amendment resolves the first issue by providing that the undue influence enhancement can apply in a case involving attempted sexual conduct. Specifically, the amendment amends the Commentary in §§2A3.2 and 2G1.3 to provide that "[t]he voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring."

The amendment resolves the second issue by providing in the Commentary to §§2A3.2 and 2G1.3 that the undue influence enhancement does not apply in a case in which the only "minor" involved in the offense is an undercover law enforcement officer. The Commission determined that the undue influence enhancement should not apply in a case involving only an undercover law enforcement officer because, unlike other enhancements in the sex offense guidelines, the undue influence enhancement is properly focused on the effect of the defendant’s actions on the minor’s behavior.

The amendment also makes a stylistic change to the language in the Commentary of both §§2A3.2 and 2G1.3, and makes a technical change to the Background of §2A3.2.

Effective Date: The effective date of this amendment is November 1, 2009.