In U.S. v. Lebovitz, No. 04-10185 (March 4, 2005), the Court (Anderson, Roney, Carnes) the Court affirmed a 110-month sentence for a defendant convicted of violating 18 U.S.C. § 2423(b) by crossing state lines with the intent to have sex with a minor.
The Court rejected the argument that USSG § 2A3.1 was not the appropriate guideline for setting Lebovitz’ offense level. The Court pointed out that § 2A3.2 expressly states that § 2A3.1 should be applied if the offense involved attempted criminal sex abuse. Here, the defendant had attempted to have sex with a minor by stating his intent to do so in writing, and by crossing state lines with jewelry and condoms to meet with an eleven-year old (no meeting occurred: the defendant was caught in a police sting).
The Court rejected the argument that a four-level enhancement under § 2A3.1(b)(2)(A), for attempted sex with a minor under the age of 12, should not have been imposed because the minor in this case was fictitious. The Court noted that it had upheld convictions based on the low age of the fictitous minor victim, and held that Guideline sentence enhancements could also qualify on this basis. Intent, rather than actual harm, is the relevant basis for the enhancement, the Court explained.
The Court rejected the defendant’s contention that it was impermissible double counting to increase his sentence for possessing ten or more pornographic items and also for use of a computer to obtain the items. The Court noted that the two guidelines serve different purposes: one is aimed at well-established connection between possession of illegal pornographic items and child molesting. The other aims to punish the use of a computer, a device which greatly facilitates the viewing of child pornography. These are two different kinds of harms.
The Court also rejected the argument that it was impermissible double counting to increase the sentence based on possessing 300 to 600 child pornography items when the sentence had already been enhanced for possessing more than 10 items. The Court noted that the enhancement for possessing more than 300 items was adopted after the enhancement for possessing more than 10 items. The Court found no implied repeal of the more than 10 item enhancement when the more than 300 item enhancement was adopted. To the contrary, Congress meant to increase the punishment for possessors of large numbers of images. No double counting therefore occurred.
