United States v. Shafer

573 F.3d 267, 2009 U.S. App. LEXIS 17987, 2009 WL 2146483
Court of Appeals for the Sixth Circuit·Decided July 21, 2009·No. 07-2574·Published·Cited by 31 cases

Opinions

AMENDED OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Robert Shafer (“Shafer”) appeals his sentence of 360 months of imprisonment resulting from his guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign eommerce in violation of 18 U.S.C. § 2251(a). Specifically, Shafer admitted to “causfing] an eleven-year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area. [Shafer] produced seven (7) digital images of the sexually explicit conduct using materials which had been shipped and transported in interstate and foreign commerce, including, but not limited to, a Sony Mavica brand digital camera that was manufactured outside of the State of Michigan.” Joint Appendix (“J.A.”) at 14-15 (Indictment at 1-2). Shafer’s sole argument on appeal is that the district court clearly erred at sentencing when it imposed a two-level enhancement pursuant to the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2G2.1(b)(2)(A) (2006). After we issued an opinion in this case, the Government presented in a petition for rehearing and rehearing en banc a new argument that we did not have occasion to consider in our initial review. In light of this new argument, we provided Shafer an opportunity to respond to the Government’s position, and we conducted further research regarding the legislative purpose behind the statute at issue in this case as expressed in the statute’s legislative history. Having thoroughly reviewed these additional materials, we now AFFIRM Shafer’s sentence. We withdraw our prior opinion and issue this amended opinion.

I. FACTS AND PROCEDURE

The facts of this case are not in dispute. Shafer and codefendant Kurt Amundson (“Amundson”) operated a licensed foster-care home in Michigan. On June 20, 2006, the Van Burén County, Michigan, Sheriffs [270]*270Department received information from C.J., a minor boy in Shafer’s and Amundson’s care, and C.J.’s father, that pertained to child pornography and other illegal conduct involving Shafer and Amundson. C.J. stated that, while he was under Shafer’s and Amundson’s care, he and other boys would join Shafer and Amundson in the hot tub at the residence. On one occasion, C.J. saw Amundson and Shafer in the hot tub with J.G., another minor ward of Amundson and Shafer, and B.H.,1 a minor boy; everyone in the hot tub was naked. C.J. also reported finding pornographic pictures on Shafer’s and Amundson’s computers, but denied having any inappropriate contact with either Shafer or Amundson.

On June 29, 2006, law-enforcement officials executed a search warrant on Shafer’s and Amundson’s home, seizing various computers, floppy disks, DVDs, CDs, videotapes, and an external hard drive. Shafer was the primary user of one computer, which contained 144 images of suspected child pornography dating from November 2003, to April 5, 2006. In total, the search uncovered “20 images of child pornography production; 25,086 images of child pornography; and 1,244 child pornographic videos.” J.A. at 194 (Presentence Investigation Report (“PSR”) at 9 ¶ 35).

Of the images discovered, several included images of B.H. either naked or exposing his genitals or buttocks. One picture, taken when B.H. was eleven years old, depicted B.H. masturbating. B.H. was thirteen years old at the time these photos were discovered.

On June 6, 2007, a grand jury returned a six-count indictment charging Shafer and Amundson with sexually exploiting children. Law-enforcement officials arrested Shafer and Amundson on June 7, 2007. Pursuant to a proffer agreement, the FBI interviewed Shafer on July 18, 2007. At that time, “Shafer admitted molesting B.H. since he was approximately 8 years old.” J.A. at 195 (PSR at 10 ¶ 47). Shafer believed this molestation occurred “once every two weeks over a five or six year period.” Id. Shafer further detailed specific instances in which he and Amundson molested B.H. Shafer also admitted to sexually assaulting other children, but denied ever having sexual intercourse with J.G.2

On July 25, 2007, Shafer pleaded guilty to count one of the indictment, enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a), and consented to the forfeiture allegation under 18 U.S.C. §§ 2253(a)(1) and (a)(3) expressed in count six. Count one specifically stated that Shafer “caused an eleven-year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area” and produced seven “digital images of the sexually explicit conduct us[271]*271ing materials which had been shipped and transported in interstate and foreign commerce.” J.A. at 14-15 (Indictment at 1-2).

A PSR was ordered and provided to Shafer prior to sentencing. The PSR calculated Shafer’s base offense level as 32 and imposed multiple enhancements. Shafer raised several objections to the PSR in a sentencing memorandum. Most important for purposes of this appeal, Shafer objected to a two-level enhancement awarded pursuant to § 2G2.1 (b)(2)(A), which applies when “the offense involved ... the commission of a sexual act or sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A). Shafer argued that both the term “sexual act” and the term “sexual contact” require one individual to touch another individual and thus do not encompass self-masturbation.

The district court responded to Shafer’s objections at Shafer’s sentencing hearing on December 10, 2007. During argument regarding the § 2G2.1(b)(2)(A) enhancement, Shafer conceded that there was evidence “that he personally had direct physical contact with BH of a sexual nature but not with respect to the offense of conviction.” J.A. at 120 (Sent. Hr’g Tr. at 24). The district judge overruled Shafer’s objection to the § 2G2.1(b)(2)(A) enhancement, finding two grounds to support imposing the enhancement.

First, the district judge found that, although “sexual act,” as defined by 18 U.S.C. § 2246(2), requires one individual to make contact with another individual, the plain language of 18 U.S.C. § 2246(3) defining “sexual contact” is broader, covering self-masturbation when done with the intent to arouse or gratify the sexual desire of either the person masturbating or a person watching. Specifically, the district judge stressed that § 2246(3) defined “sexual contact” to include “the intentional touching ... of the genitalia ... of any person” and that “a person masturbating is caught touching the genitalia of any person, namely, his or her own.” J.A. at 125 (Sent. Hr’g Tr. at 29).

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

United States v. Shafer, 573 F.3d 267, 2009 U.S. App. LEXIS 17987, 2009 WL 2146483 (6th Cir. 2009).

573 F.3d 267 (United States v. Shafer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Troy Skinner
70 F.4th 219 (Fourth Circuit, 2023)
United States v. Butler
65 F.4th 199 (Fifth Circuit, 2023)
United States v. Romeo Valentin Sanchez
30 F.4th 1063 (Eleventh Circuit, 2022)
United States v. Edward Raiburn
20 F.4th 416 (Eighth Circuit, 2021)
United States v. Susan Pioch
5 F.4th 640 (Sixth Circuit, 2021)
United States v. Trevon Barcus
892 F.3d 228 (Sixth Circuit, 2018)
United States v. Hinkley
803 F.3d 85 (First Circuit, 2015)
United States v. Dean
591 F. App'x 11 (Second Circuit, 2014)
United States v. Weisinger
586 F. App'x 733 (Second Circuit, 2014)
United States v. Gonyer
761 F.3d 157 (First Circuit, 2014)
Adell v. John Richards Homes Building Co.
552 F. App'x 401 (Sixth Circuit, 2013)
Allen Ajan v. United States
731 F.3d 629 (Sixth Circuit, 2013)
United States v. Trevor Shea
Seventh Circuit, 2012
United States v. Shea
493 F. App'x 792 (Seventh Circuit, 2012)
United States v. Robert Pawlowski
682 F.3d 205 (Third Circuit, 2012)
United States v. Michael Lemons
480 F. App'x 400 (Sixth Circuit, 2012)
Morris v. State
361 S.W.3d 649 (Court of Criminal Appeals of Texas, 2011)