United States v. Lay

583 F.3d 436, 2009 U.S. App. LEXIS 22435, 2009 WL 3255082
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 13, 2009
Docket07-4062
StatusPublished
Cited by61 cases

This text of 583 F.3d 436 (United States v. Lay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lay, 583 F.3d 436, 2009 U.S. App. LEXIS 22435, 2009 WL 3255082 (6th Cir. 2009).

Opinions

OPINION

ROGERS, Circuit Judge.

Dennis Lay appeals the sentence he received following his guilty plea to one count of traveling with intent to engage in illicit sexual conduct. Despite Lay’s arguments to the contrary, the sentencing court properly applied an enhancement for unduly influencing a minor after finding that Lay failed to rebut the applicable presumption that he had unduly influenced the much younger victim. The district court also permissibly applied an enhancement for use of a computer to entice the minor, even though none of Lay’s discussions with the minor about sexual activity occurred via computer. Lay did not qualify for a reduction for acceptance of responsibility because the district court found that Lay did not testify truthfully in all relevant respects, despite professing to accept responsibility. Furthermore, Lay’s sentence is substantively reasonable, though Lay will face significant restraints on his freedom when he is on supervised release. We thus affirm Lay’s sentence.

[439]*439I. Background

Dennis Lay, a decorated U.S. Air Force veteran in his mid-50’s, was working as a truck driver in California. In June of 2006, he made acquaintance online with the minor victim in this case, whom we will refer to as “M.V.” M.V. appears to have initiated the online contact. Lay and M.V. exchanged messages online for a period of about two months. By sometime in July, they had begun communicating by telephone as well, though not openly. Lay made several calls to M.V.’s home phone that M.V.’s mother answered; when she answered, Lay hung up. Lay eventually sent a package to M.V. with a mobile phone, clothing, and over $200.

In early July, M.V.’s mother advised Ohio police that M.V. claimed to be in love with Lay and wanted to travel to California to live with him. An investigating officer, having discovered the mobile phone Lay had sent, used that phone to call Lay. Lay initially claimed that he had no knowledge that M.V. was only fifteen. However, the officer pointed out that M.V. had emailed pictures to Lay, and that Lay had sent clothing appropriate for a fifteen-year-old to M.V. Lay tried to change the subject by arguing that the police should be investigating M.V.’s mother for abusing M.V. The officer told Lay that M.V. was not bruised, as Lay claimed that M.V. had told Lay. The officer asked Lay for his address, birth date, and Social Security number; Lay hung up.

Despite being informed by the officer of M.V.’s age, Lay continued communicating with M.V. M.V. claimed that all conversations after late July were by phone, not by computer. In November, Lay mailed an envelope to a friend of M.V.’s with instructions for the friend to deliver the contents to M.V. Inside was another envelope containing two letters, four pictures (one of Lay), a plastic ring sizer, a music CD, a half-dollar coin, and $200.

One of the letters discussed Lay’s relationship with M.V. In it, Lay claimed that there was “NOTHING that will ever keep us apart,” said that “I REALLY love you,” and said that he wanted to “hug and kiss [you], and never stop.” In the second letter, Lay advised M.V. not to say anything out loud on the phone about Lay’s visiting M.V. -in Ohio out of fear of being overheard. Lay also said that he would call and tell M.V. he couldn’t come to Ohio, so as to deceive potential eavesdroppers. But Lay wrote that he had made arrangements to fly to Ohio to see M.V. at the end of 2006. Lay informed M.V. that he had made hotel reservations in a nearby Ohio town for a room with a king-size bed and room service. He advised M.V. not to mention Lay’s plans to anyone because if Lay were discovered, his “goose will be cooked.”

Before his trip, Lay continued to talk to M.V. by phone. Many of their conversations were sexually explicit. In addition, they discussed a plan in which Lay would leave a message on M.V.’s answering machine directed to M.V.’s mother. The message would advise the mother that Lay was the father of one of M.V.’s friends, that he was inviting M.V. to spend the holiday weekend with his family, and that he would pick up M.V. on Friday, December 29th, for a visit to last through January 1st.

Lay flew from California to Ohio on schedule for his liaison with M.V. At the baggage claim in the Ohio airport, FBI agents arrested him pursuant to a warrant obtained after Lay boarded his flight. Without telling M.V., M.V.’s mother had reported the contents of the last package to the police, and had given consent for police to record the last week of phone calls between Lay and M.V.

[440]*440II. Judicial Proceedings

In January 2007, a federal grand jury indicted Lay with one count of knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). That statute criminalizes traveling in interstate commerce with the intent to engage in sexual activity with a minor under the age of 16 who is at least four years younger than the defendant. See 18 U.S.C. §§ 2423(f), 2243(a).

In March 2007, Lay pled guilty to the charge. During the hearing for the entry of plea, the prosecution stated the facts of the case that the prosecution believed it was prepared to prove. The prosecution’s statement included an assertion that Lay had left the answering machine message that was intended to get M.V.’s mother to let M.V. go off with Lay. Lay acknowledged engaging in the conduct described in the prosecution’s statement.

In July 2007, the district court held a sentencing hearing. In addition to recommending a three-level reduction for acceptance of responsibility, the prosecution recommended three Sentencing Guidelines enhancements. These were a two-level enhancement under U.S.S.G.

§ 2G1.3(b)(2)(B) for unduly influencing a minor to engage in prohibited sexual conduct, a two-level enhancement under U.S.S.G. § 2G1.3(b)(3)(B) for use of a computer to entice a person to engage in prohibited sexual conduct with a minor, and a two-level enhancement under U.S.S.G. § 3B1.4 for using a minor in the commission of the crime. Lay testified at the sentencing hearing in order to contest these enhancements.

A. Sentencing Testimony

Lay testified that M.V. had initiated contact over the Internet. Lay claimed that at first he responded to long, unsolicited emails from M.V. with brief replies, but that their relationship gradually evolved into a friendship. He also testified that about two months into their relationship, they stopped using the Internet to communicate, instead only talking by phone. Lay gave more details about the relationship, and he began testifying about M.V.’s claims of “family problems.”

At that point, the district court interrupted and warned Lay’s counsel that “you may very well be, because of some of this testimony, jeopardizing whatever three-level acceptance of responsibility.... So if you’ve got some testimony regarding objections, specific objections, I will hear it, but I’m not going [to] entertain this long litany that arguably could be interpreted as a lack of acceptance of responsibility and offer an excuse for the conduct, so be forewarned.”

Lay resumed testifying. Among other things, he testified that it was M.V.’s idea that Lay travel to Ohio for a visit. He testified that M.V.

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Cite This Page — Counsel Stack

Bluebook (online)
583 F.3d 436, 2009 U.S. App. LEXIS 22435, 2009 WL 3255082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lay-ca6-2009.