Hill: Guideline commentary inconsistent with computer use guideline

In U.S. v. Hill, No. 14-13383 (April 17, 2015), the Court affirmed the imposition of the two-level enhancement for use of a computer to solicit a person to engage in unlawful sexual activity with a minor, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), holding that the Guideline commentary was inconsistent with the Guideline and therefore did not govern the application of the enhancement. Hill pled guilty to conspiracy to engage in sex trafficking of minors. The Guidelines provide for a two-level enhancement if a defendant used a computer to “solicit a person to engage in prohibited sexual conduct with a minor.” The Guideline commentary, however, states that the enhancement applies only to use of a computer to communicate with a minor or a person exercising custody of the minor. Here, Hill used a computer for online ads offering minor girls for sex. Joining other Circuits to have so held, the Court held that the Guideline commentary’s limitation was inconsistent with the Guideline, and therefore not binding. The Court noted that the inconsistency was the result of a drafting error. Because Hill used his cellphone (which qualified as a “computer”) to place online ads, and his actions therefore fell “squarely within the language of the enhancement.”