United States v. Peter Zagorski

807 F.3d 291, 420 U.S. App. D.C. 186, 2015 U.S. App. LEXIS 20784, 2015 WL 8047496
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 1, 2015
Docket12-3084
StatusPublished
Cited by6 cases

This text of 807 F.3d 291 (United States v. Peter Zagorski) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. Peter Zagorski, 807 F.3d 291, 420 U.S. App. D.C. 186, 2015 U.S. App. LEXIS 20784, 2015 WL 8047496 (D.C. Cir. 2015).

Opinion

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Peter Zagorski appeals the sentence he received after pleading guilty to distributing child pornography. Zagorski argues that the district court miscalculated the applicable Sentencing Guidelines range by erroneously applying two provisions: a cross-reference to the guideline governing production of child pornography, U.S.S.G. § 2G2.2(c)(l) (the “cross-reference”), and a two-level enhancement for using a computer to “solicit participation with a minor” in the production or live transmission of child pornography, id. § 2G2.1(b)(6)(B) (the “computer enhancement”). We find no error and affirm.

In October 2011 Zagorski began corresponding via internet chat with a man who claimed to have control over a 12-year-old girl. Unbeknownst to Zagorski, the man was an undercover police detective named Timothy Palchak. After learning that Za-gorski had videos of child pornography, Palchak proposed a trade: a live “web-cam” show featuring Palchak and the purported minor in exchange for Zagorski’s child pornography. Zagorski agreed.

Over the course of approximately three weeks, Zagorski repeatedly expressed interest in the webcam show and discussed sending child pornography to Palchak as payment. Zagorski told Palchak that he wanted the child to appear nude or “wear a skirt and lift[ ] it few times” on webcam. Joint Appendix (“J.A.”) 70. He sent Pal-chak a total of six videos of child pornography, including three on the day Palchak proposed the trade. On one occasion, Za-gorski spoke with the purported minor— impersonated by an FBI agent — on the telephone.

Zagorski was arrested and charged with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of attempted coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b). Pursuant to a plea agreement, Zagorski pleaded guilty to the § 2252(a)(2) count and the § 2422(b) count was dismissed at sentencing. In calculating the applicable Guidelines range, the district court applied the cross-reference and the computer enhancement based on Zagorski’s efforts to procure the webcam show. Although the resulting calculation yielded an advisory sentence of 240 months (the statutory maximum term) based on an offense level of 39 and a criminal history category of I, the court sentenced Zagorski to 99 months in prison. The court also imposed a 120-month term of supervised release and a $100 special assessment.

At stake here is whether Zagorski is subject to a Guidelines offense level of 37 (with a corresponding advisory sentence of 210-240 months — actually a range of 210-262 months capped by the statutory maximum) or, as the district court found, of 39 (with a corresponding advisory sentence of 240 months — similarly a range, 262-327 months, capped by the statutory maximum). The guideline that usually governs Zagorski’s offense of conviction is Guidelines § 2G2.2 (the pornography “distribution guideline”), which with its applicable “offense characteristics” and other adjustments yields an offense level of 37. The challenged cross-reference, if it applies, *293 reroutes the offense level calculation from the distribution guideline to Guidelines § 2G2.1 (the pornography “production guideline”), which provides for a higher base offense level but generally fewer en-haneements-but those few include the challenged computer enhancement. Under the production guideline Zagorski’s total offense level is 37 if the computer enhancement does not apply, 39 if it does. Accordingly, to affirm we must conclude both that Zagorski was subject to the production guideline (by virtue of the cross-reference) and that the computer enhancement was correctly applied. We address each in turn.

Cross-reference. Guidelines § 2G2.2(c)(l) directs the sentencing judge to apply § 2G2.1 if, as relevant here, “the offense involved causing ... a minor to engage in sexually explicit conduct for the purpose of ... transmitting a live visual depiction of such conduct.” The commentary says that the cross reference “is to be construed broadly.” U.S.S.G. § 2G2.2 Application Note 5 (2011).

We assume without deciding two propositions that Zagorski has not challenged: first, that the activity in which Zagorski expected the purported minor to engage on webcam qualifies as “sexually explicit conduct,” and, second, that the cross-reference encompasses attempts. Under these assumptions, the district court did not err in finding that Zagorski’s conduct implicated the cross-reference: By offering to send pornographic videos in exchange for a live, sexually explicit webcam performance by a 12-year-old girl, Zagorski demonstrated his intent to “causfe] ... a minor to engage in sexually explicit conduct for the purpose of ... transmitting a live visual depiction of such conduct.” And by actually sending such videos to the minor’s purported custodian, Zagorski took a “substantial step” toward causing this result. See United States v. Hite, 769 F.3d 1154, 1162 (D.C.Cir.2014) (defining “attempt” as a “substantial step” coupled with “the requisite criminal intent” (citation omitted)). Although of course Palchak’s actions were causes of the events that transpired, that doesn’t exclude a causal role for Zagorski.

Relying on Hite, Zagorski argues that his actions did not amount to an attempt to “entice” or “persuade” the purported minor to participate in the webcam show. He points out that Palchak presented the minor as ready and willing to engage in sexual activity — and that, as a result, he never had to take any steps to “transform or overcome” her will. Hite, 769 F.3d at 1161. But Hite’s insistence that there be evidence that the defendant sought to “transform or overcome the will of a minor,” id., rested on verbs in 18 U.S.C. §' 2422(b) — “persuade,” “induce,” “entice,” “coerce” — that are more demanding than “cause,” which is among the verbs in Guidelines § 2G2.2(e)(l). See also United States v. Laureys, 653 F.3d 27, 40 (D.C.Cir.2011) (Brown, J., dissenting on an issue the majority did not reach) (identifying cases reading § 2422(b) to require “an attempt to bend the child-victim’s will”). Here, under the usual meaning of the word “cause,” see, e.g., United States v. Whitesell, 314 F.3d 1251, 1255 (11th Cir.2002), Zagorski attempted to cause a minor to engage in particular conduct by bartering with her purported custodian.

Computer Enhancement. An affirmative finding under Guidelines § 2G2.2(c)(l) potentially triggers Guidelines § 2G2.1(b)(6)(B), providing as follows:

If, for the purpose of producing sexually explicit material or for the purpose of transmitting such material live, the offense involved ... the use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in *294

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Gallegos
Tenth Circuit, 2023
United States v. Troy Skinner
70 F.4th 219 (Fourth Circuit, 2023)
United States v. Muhammad Waqar
997 F.3d 481 (Second Circuit, 2021)
United States v. Bryan Osborne
Seventh Circuit, 2020

Cite This Page — Counsel Stack

Bluebook (online)
807 F.3d 291, 420 U.S. App. D.C. 186, 2015 U.S. App. LEXIS 20784, 2015 WL 8047496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peter-zagorski-cadc-2015.