ROBERT E. JONES, District Judge:
Defendant appeals his sentence after pleading guilty to three counts of “Travel with intent to engage in a sexual act with a juvenile,” in violation of 18 U.S.C. § 2423(b).
This appeal presents two sentencing issues:
1. Whether the district court properly applied United States Sentencing Guideline (“U.S.S.G.”) § 2A3.1
to Appellant’s conviction for “Travel with intent to engage in sexual acts with a juvenile;” and,
2. Whether the district court properly refused to group the three counts of the conviction under U.S.S.G. § 3D1.2.
STANDARD OF REVIEW
The district court’s interpretation and application of the Sentencing Guidelines are reviewed
de novo. United States v. Basinger,
60 F.3d 1400, 1409 (9th Cir.1995).
FACTS
As part of a “sting operation,” a member of the Los Angeles Federal Child Pornography Task Force placed a fictitious advertisement in an adult magazine. In this advertisement, a “mother” invited someone to teach her children sexual matters. Appellant, a resident of Spokane, Washington, responded to the advertisement and corresponded with the fictitious “mother” from December 1993 until November 1994. During this correspondence, Appellant was told that the children involved were ages 12, 10 and 7 years.
On November 5, 1994, Appellant and the “mother” agreed to meet at a motel in Oregon. On the day of the meeting, in a motel room in Oregon, Appellant described to the “mother” the various sexual acts he intended to engage in with the purported three minor children. This discussion lasted 45 minutes and was video and audio taped. When Appellant entered the room where he believed the children were waiting, he was arrested.
On December 20, 1994, a Grand Jury returned a four-count indictment charging Ap
pellant with three counts of travel with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and one count of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) & (d). However, the Government dismissed the latter count of sexual exploitation of children.
On March 1, 1995, Appellant entered a plea of guilty to three counts of travel with intent to engage in a sexual act with a juvenile. For these counts, the district court sentenced Appellant on March 1, 1995, to a total of 78 months imprisonment, to be followed by a three-year term of supervised release.
DISCUSSION
Appellant contends that the district court erred because it misapplied U.S.S.G. § 2A3.1 and failed to group the three counts pursuant to U.S.S.G. § 3D1.2. We address each contention in turn.
1.
Application of U.S.S.G. § 2A3.1
At the time of entry of Appellant’s guilty pleas, “Travel with intent to engage in a sexual act with a juvenile,” 18 U.S.C. § 2423(b), was a new provision of the Violent Crime Control and Law Enforcement Act of 1994. The United States Sentencing Commission had not yet determined which offense Guideline section was applicable to this new provision. Where the offense is a felony for which no Guideline has been expressly promulgated, U.S.S.G. § 2X5.1
provides that the most analogous offense guideline should be applied.
In sentencing Appellant, the district court adopted the recommendation of the Presen-tenee Investigative Report which stated that U.S.S.G. § 2A3.1, Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse, was the most analogous Guideline to Appellant’s violations of 18 U.S.C. § 2423(b) (travel with the intent to engage in a sexual act with a juvenile). Therefore, the court sentenced Appellant to 78 months using the base offense level of 27 provided under U.S.S.G. § 2A3.1.
However, Appellant argues that the district court should have applied § 2A3.2
as the most analogous Guideline because § 2A3.2 applies where the victims are between 12 and 16 years old, whereas § 2A3.1 applies where the victims are less than 12 years old. Use of § 2A3.2 would have resulted in a sentence range of 51-63 months rather than 70-87 months under U.S.S.G. § 2A3.1. Because the children were fictitious, Appellant argues that their ages should not mandate application of the increased sentence under § 2A3.1.
In opposition, the Government asserts that the ages of the fictional victims are not the defining factors in calculating Appellant’s sentence. Instead, it is the nature of the attempted crime that requires application of § 2A3.1, rather than § 2A3.2.
Guideline § 2A3.1 applies to violations of 18 U.S.C. § 2241 which reads in relevant part:
(c) With children. — Whoever, in the special maritime territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title, imprisoned for any terms of years or life, or both.
In contrast, Guideline 2A3.2 applies to violations of 18 U.S.C. § 2243 which reads in relevant part:
(a) Of a minor. — Whoever, in the special maritime and territorial jurisdiction of the United States or in a federal prison, know
ingly engages in a sexual act with another person who—
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
a. Analysis
Guideline § 2A3.2 provides “[i]f the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242) apply U.S.S.G. § 2A3.1.” Furthermore, the Background to U.S.S.G. § 2A3.1 states that “[s]exual offenses addressed in this section are crimes of violence.
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ROBERT E. JONES, District Judge:
Defendant appeals his sentence after pleading guilty to three counts of “Travel with intent to engage in a sexual act with a juvenile,” in violation of 18 U.S.C. § 2423(b).
This appeal presents two sentencing issues:
1. Whether the district court properly applied United States Sentencing Guideline (“U.S.S.G.”) § 2A3.1
to Appellant’s conviction for “Travel with intent to engage in sexual acts with a juvenile;” and,
2. Whether the district court properly refused to group the three counts of the conviction under U.S.S.G. § 3D1.2.
STANDARD OF REVIEW
The district court’s interpretation and application of the Sentencing Guidelines are reviewed
de novo. United States v. Basinger,
60 F.3d 1400, 1409 (9th Cir.1995).
FACTS
As part of a “sting operation,” a member of the Los Angeles Federal Child Pornography Task Force placed a fictitious advertisement in an adult magazine. In this advertisement, a “mother” invited someone to teach her children sexual matters. Appellant, a resident of Spokane, Washington, responded to the advertisement and corresponded with the fictitious “mother” from December 1993 until November 1994. During this correspondence, Appellant was told that the children involved were ages 12, 10 and 7 years.
On November 5, 1994, Appellant and the “mother” agreed to meet at a motel in Oregon. On the day of the meeting, in a motel room in Oregon, Appellant described to the “mother” the various sexual acts he intended to engage in with the purported three minor children. This discussion lasted 45 minutes and was video and audio taped. When Appellant entered the room where he believed the children were waiting, he was arrested.
On December 20, 1994, a Grand Jury returned a four-count indictment charging Ap
pellant with three counts of travel with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b), and one count of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) & (d). However, the Government dismissed the latter count of sexual exploitation of children.
On March 1, 1995, Appellant entered a plea of guilty to three counts of travel with intent to engage in a sexual act with a juvenile. For these counts, the district court sentenced Appellant on March 1, 1995, to a total of 78 months imprisonment, to be followed by a three-year term of supervised release.
DISCUSSION
Appellant contends that the district court erred because it misapplied U.S.S.G. § 2A3.1 and failed to group the three counts pursuant to U.S.S.G. § 3D1.2. We address each contention in turn.
1.
Application of U.S.S.G. § 2A3.1
At the time of entry of Appellant’s guilty pleas, “Travel with intent to engage in a sexual act with a juvenile,” 18 U.S.C. § 2423(b), was a new provision of the Violent Crime Control and Law Enforcement Act of 1994. The United States Sentencing Commission had not yet determined which offense Guideline section was applicable to this new provision. Where the offense is a felony for which no Guideline has been expressly promulgated, U.S.S.G. § 2X5.1
provides that the most analogous offense guideline should be applied.
In sentencing Appellant, the district court adopted the recommendation of the Presen-tenee Investigative Report which stated that U.S.S.G. § 2A3.1, Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse, was the most analogous Guideline to Appellant’s violations of 18 U.S.C. § 2423(b) (travel with the intent to engage in a sexual act with a juvenile). Therefore, the court sentenced Appellant to 78 months using the base offense level of 27 provided under U.S.S.G. § 2A3.1.
However, Appellant argues that the district court should have applied § 2A3.2
as the most analogous Guideline because § 2A3.2 applies where the victims are between 12 and 16 years old, whereas § 2A3.1 applies where the victims are less than 12 years old. Use of § 2A3.2 would have resulted in a sentence range of 51-63 months rather than 70-87 months under U.S.S.G. § 2A3.1. Because the children were fictitious, Appellant argues that their ages should not mandate application of the increased sentence under § 2A3.1.
In opposition, the Government asserts that the ages of the fictional victims are not the defining factors in calculating Appellant’s sentence. Instead, it is the nature of the attempted crime that requires application of § 2A3.1, rather than § 2A3.2.
Guideline § 2A3.1 applies to violations of 18 U.S.C. § 2241 which reads in relevant part:
(c) With children. — Whoever, in the special maritime territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or attempts to do so, shall be fined under this title, imprisoned for any terms of years or life, or both.
In contrast, Guideline 2A3.2 applies to violations of 18 U.S.C. § 2243 which reads in relevant part:
(a) Of a minor. — Whoever, in the special maritime and territorial jurisdiction of the United States or in a federal prison, know
ingly engages in a sexual act with another person who—
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
a. Analysis
Guideline § 2A3.2 provides “[i]f the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242) apply U.S.S.G. § 2A3.1.” Furthermore, the Background to U.S.S.G. § 2A3.1 states that “[s]exual offenses addressed in this section are crimes of violence. Because of their dangerousness, attempts are treated the same as completed acts of criminal sexual abuse.” Therefore, the fact that Appellant was unable to complete the crime because the victims were fictitious is not the determining factor. Rather, Appellant’s intent and conduct constitute attempted criminal sexual abuse of three young children. Moreover, contrary to Appellant’s assertions, in applying § 2A3.1, the district court did take into account the absence of real victims by declining to add specific offense characteristics to Appellant’s base offense level.
Consequently, we conclude that the district court properly applied U.S.S.G. § 2A3.1 to Appellant’s plea of guilty to three counts of travel with intent to engage in a sexual act with a juvenile.
2.
Grouping of Counts under § 3D1.2
Appellant contends that the three counts of the conviction should have been grouped under U.S.S.G. § 3D1.2 as closely related offenses because there were no real victims; rather, the only victim was society. Consequently, Appellant argues, Note 2 to U.S.S.G. § 3D1.2 should apply. Note 2 reads in relevant part:
The term “victim” is not intended to include indirect or secondary victims ... [f]or offenses in which there are no identifiable victims ... the “victim” for the purposes of subsections (a) and (b) is the societal interest that is harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related.
The Government opposes grouping because: (1) the offenses are specifically excluded from the grouping provisions of U.S.S.G. § 3D1.2(d), and (2) the Note on harm to society is not applicable to this crime.
Guideline § 3D1.2(a) provides that:
All counts involving substantially the same harm shall be grouped together into a single Group. Counts involving substantially the same harm within the meaning of this rule: (a)When the counts involve the same victim and the same act or transaction.
However, U.S.S.G. § 3D1.2(d) specifically excludes all offenses in Chapter 2, Part A from the grouping subsection.
Because U.S.S.G. § 2A3.1 is in Chapter 2, Part A, the offenses should not be grouped.
Notwithstanding that argument, the prosecution also explains that the latter part of Note 2 refutes Appellant’s argument that society is the victim in this case, because the Note states that society is considered the victim only in offenses for which there are no identifiable victims
“e.g.
drug or immigration offenses, where society at large is the victim.”
? this case, Appellant attempted to engage in sexual acts with specific juvenile victims. Had the victims been available,
they, rather than society in general, would have been harmed. Therefore, this is not a crime merely against society, as in the case of the immigration or drug crimes mentioned in the note; but rather, is a crime against specific victims. Moreover, as stated above, these are crimes of violence, and due to their dangerous nature, attempts are treated the same as completed criminal acts. Therefore, grouping was not appropriate in this ease.
Because the district court properly applied U.S.S.G. § 2A3.1 in sentencing appellant, it did not err in declining to group the three counts of the conviction.
CONCLUSION
Because we conclude that both the application of Sentencing Guideline § 2A3.1 and refusal to group counts under Guideline § 3D1.2 were appropriate, the judgment of the district court is AFFIRMED.