The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
A jury convicted Brian Burns of two violations of 18 U.S.C. § 2252A(a)(2)(A) for receiving and distributing child pornography. The court heard witnesses and victim impact testimony relevant to sentencing on August 3, 2009; the parties presented further testimony to the court at a hearing held August 14, 2009. The court heard arguments and Burns's allocution at the sentencing hearing held on October 16, 2009.
This order determines Burns's applicable sentencing range under the Federal Sentencing Guidelines (the "Guidelines"), and then considers the factors listed in 18 U.S.C. § 3553(a),*fn1 including the seriousness of the offense, the characteristics of the defendant and, correspondingly, what punishment is just. § 3553(a)(2)(A).
The investigation that led to Burns's indictment began when M, a then sixteen year-old female, mentioned to her therapist that she and Burns had been engaged in a sexual relationship for several months. On June 23, 2006, Evanston, Illinois police officers executed a search warrant at Burns's residence and seized his computer. Pursuant to a subsequent warrant, police searched the contents of Burns's computer, found evidence of child pornography, and stopped the search to obtain a further warrant. This third warrant supported the search of Burns's computer for the images that he was eventually tried for and convicted of possessing and distributing. Additionally, the searches uncovered evidence that Burns had been sexually active with A, a woman who was sixteen when their sexual relationship began. Burns's longest relationship, lasting from 1998-2002, was with Kathryn, who was either sixteen or seventeen when they began dating; Burns was twenty or twenty-one. Kathryn's mother wrote to the court saying that she knew of and approved of the relationship and "learned to love [Burns] like a son" while Burns and her daughter were together.
Although district courts are not to apply "any thumb on the scale favoring a [Federal] Sentencing Guideline sentence," a court is still "ordinarily obliged to first consider the presentence report and its calculation of the Guidelines and then consider the respective parties' arguments as to whether the Guidelines sentence should apply." United States v. Allday, 542 F.3d 571, 572--73 (7th Cir. 2008) (quotation omitted). Burns objects to the inadequacy of the Presentence 18 U.S.C. § 3553(a).
Investigation Report's ("PSR"'s ) documentation of his mental health history, to the propriety of a five-point offense level enhancement for abuse or exploitation of minors, and to the omission of a two-level reduction for acceptance of responsibility under the Guidelines. The government supports the Guidelines calculation in the PSR. The probation office, as it almost invariably does, recommends a guideline sentence.
A. Five Point Enhancement Under U.S.S.G. § 2G2.2(b)(5)
Pursuant to § 2G2.2(b)(5) of the Guidelines, the PSR applied a five-point increase in the offense level because the "defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." PSR 4. The PSR goes on to cite the Guidelines' definition of "pattern of... exploitation": any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.
U.S.S.G. § 2G2.2, N. 1. Relying on this definition, the PSR applied a five-point increase because Burns engaged in sexual activity with M while she was a minor.
Burns objects to this enhancement, arguing that the Guidelines' definition of "pattern of sexual abuse and exploitation of a minor" is also subject to another definition which does not encompass Burns's conduct. Specifically, the Guidelines define "sexual abuse or exploitation" in a way that limits the universe of relevant acts to those criminalized in a series of federal statutes. See id. § 2G2.2, Defs. According to Burns, the only one of those enumerated statutes which could possibly relate to Burns's conduct with M is 18 U.S.C. § 2243, which criminalizes any sexual act between a minor who has "not attained the age of 16 years" and a person who is at least four years older than the minor. Because M was 16 when she and Burns began their consensual sexual relationship, Burns contends that these acts cannot support the five-point increase applied in the PSR.
For its part, the government argues that the five-point increase is correct because the Guidelines specify that a minor means "an individual who has not yet reached the age of 18." Resp. Br. at 2 (citing U.S.S.G. § 2G2.2 App. Note 1). Accordingly, the government contends Burns's sexual relations with M constitute a "pattern of sexual abuse and exploitation of a minor." In support of this enhancement the Government cites United States v. Gunderson, 345 F.3d 471, 472 (7th Cir. 2003), where the Seventh Circuit held that a five-level enhancement under § 2G2.2 was appropriate where the defendant, who was twenty-two at the time, twice had sexual intercourse with his seventeen year-old girlfriend.
Gunderson is not dispositive here. As Burns correctly argues, Gunderson applied a definition of "sexual abuse and exploitation" which is different from the definition the court is required to apply here, where both parties (and the PSR) agree that the 2008 Guidelines control. See U.S.S.G § 1B1.7 (failure to follow Guidelines' commentary could subject a "sentence to possible reversal on appeal"). The former definition (which the Gunderson court was bound to apply) provided that sexual abuse and exploitation meant "conduct constituting criminal sexual abuse of a minor, sexual exploitation of a minor, abusive sexual contact of a minor, [and] any similar offense under state law." U.S.S.G. § 2G2.2, N. 1 (2003) (emphasis added). Thus, the Gunderson defendant's prior misdemeanor conviction under state law for his sexual relationship with his girlfriend was properly found to require a five-point increase under the former Guidelines definitions. See Gunderson, 345 F.3d at 473.
The government additionally relies on two cases from other circuits for the general proposition that "conduct of a sexual nature with a 16-year-old qualifies for the enhancement." Resp. 2. In United States v. Stacy, 269 Fed. Appx. 322 (4th Cir. 2008), the defendant conceded one "instance of sexual abuse or exploitation of a minor for sending a pornographic photograph over the Internet to a sixteen year old" toward the § 2G2.2(b)(5) enhancement. Id. at 324. Stacy is inapposite for a number of reasons. Critically, the concession involved the defendant's creation of pornography involving a person under the age of 18, a violation of 18 U.S.C. § 2251(a), one of the statutes upon which a five-point increase may be based. See United States v. Stacy, Br. for Appellant, 2007 WL 2183261, at *13 n. 2 (4th Cir. 2007); § 2G2.2(b)(5). Further, the Fourth Circuit described the evidence supporting a number of incidents of predatory behavior by the defendant involving minor children, including but not limited to an instant message conversation where Stacy and another individual reached an agreement pursuant to which the other individual would bring his disabled 12-year-old daughter to a restaurant where Stacy could abuse her. Stacy does not support the government's position that any conduct of sexual nature with a sixteen year-old qualifies for the five-point enhancement.
Finally, the government turns to United States v. Williams, 183 Fed. Appx. 246, 248 (3d Cir. 2006), contending that the case held "that going to a restaurant with the purpose of meeting a 16-year-old girl to have sex with [her] counted as one instance of sexual conduct with a minor." Resp. 3. As with Gunderson, however, the finding in Williams is inapposite because it was based on the Guidelines from 2003, which define sexual abuse or exploitation much more broadly than the 2008 Guidelines applicable here. The plain application of the Guidelines, therefore, cannot support a five-point enhancement based on the sexual relations Burns had with M.*fn2
In a supplemental memorandum, the government asserts an alternative basis for the five-level § 2G2.2 enhancement, arguing that Burns violated the "enticement" statute (18 U.S.C. § 2422) incorporated in the definition of "sexual abuse and exploitation" discussed supra. Section 2422 prohibits using the mail or any facility or means of interstate or foreign commerce... to knowingly persuade[ ], induce[ ], entice[ ], or coerce[ ] any individual who has not attained the age of eighteen years, to engage in prostitution or sexual activity for which any person can be charged with a criminal offense, or attempt[ing] to do so.
18 U.S.C. § 2422(b).*fn3 The government contends it has met its burden to prove Burns's violation of § 2422 by a preponderance of the evidence because M testified that Burns had numerous inappropriate sexual conversations with her over the Internet using an instant messaging program before she turned sixteen. The government urges that these conversations "groomed" M for her sexual relationship with Burns and thereby violated the enticement statute. Additionally, the government points to two letters Burns wrote after his arrest by the Evanston police and mailed to M while she was attending summer camp in Europe, arguing that these letters constitute separate violations of § 2422(b) because the first letter discusses a sexual dream that Burns had about M and suggests that the two meet upon her return to the U.S., and the second letter proposes that he and M meet to shower together when she returns from Greece.
The government does not point to the specific criminal offense under state law that these letters were intended to entice M to engage in, but M testified that she had sex with Burns on a number of occasions after her return from Greece. Having sex with a person under the age of seventeen is unlawful in Illinois when, as here, the partner in the sexual act is at least five years older than the minor. See 720 Ill. Comp. Stat. 5/12-16(d) (2002). For his part, Burns urges that M's testimony on this point is not credible, and he denies any sexual contact with M after his arrest; however, he puts forth no affirmative evidence to contradict M's testimony. And while M's contention that they had sex over eighty times after Burns's arrest is likely exaggerated, it appears equally likely (and credible) that she and Burns had at least a few trysts, particularly absent an evidence-backed disavowal of such conduct from Burns. In any case, whether or not Burns and M had sex after his arrest is beside the point, for the Seventh Circuit has made clear that § 2422(b) criminalizes "persuasion and the attempt to persuade, not the performance of the sexual acts themselves." United States v. Cochran, 534 F.3d 631, 634-35 (7th Cir. 2008) (citing United States v. Bailey, 228 F.3d 637, 639(6th Cir. 2000)). The question, then, is two-fold: (1) did Burns's sexualized conversations with M over the course of a few years constitute enticement because they "groomed" her for sex; and (2) did Burns entice or intend to entice M by sending letters to her while she was in Europe?
The Seventh Circuit has recognized that "grooming" a minor over a period of time can constitute enticement, but has not clearly articulated what "grooming" is. In United States v. Gladish, 536 F.3d 646, 649 (7th Cir. 2008) the panel noted that "child sexual abuse is often effectuated following a period of grooming and the sexualization of the relationship." Id. (citing Sana Loue, "Legal and Epidemiological Aspects of Child Maltreatment," 19 J. Legal. Med. 471, 479 (1998)). Subsequently, United States v. Zawada, 552 F.3d 531 (7th Cir. 2008), held that a jury verdict convicting a defendant of attempted enticement was not in plain error where the jury could have viewed the sexual conversations between the defendant and the fictional victim (the defendant was caught in a sting operation) as grooming efforts sufficient to constitute the "substantial step" element of an attempted enticement charge. See id. at 535 ("the jury might have viewed these [sexual] conversations as 'grooming' efforts").
In opposition, Burns reasons that the sexual conversations he engaged in with M when she was thirteen cannot constitute enticement because the conversations he had with M were sporadic, and too much time elapsed between when he ceased having online conversations with M and when they met by happenstance at a Starbucks coffeehouse in Evanston, after which they began a sexual relationship. Burns cites no case law recognizing such a distinction and the court was unable to locate any. Additionally, M testified that during her years of sporadic online conversations with Burns, he continually suggested that they meet in person. Whether or not Burns proposed that he and M engage in sexual acts at those meetings is not specified in the record but is ultimately of little consequence, as M testified that the content of her conversations with Burns was frequently explicit (she referred to them as "cybersex") by the time she was thirteen or fourteen. According to "grooming" theory, then, flatly proposing sex at such personal encounters would be as consistent with a "grooming" theory of enticement as having coffee because each brings the "groomer" one step closer to his ultimate goal of sexual conquest. See Testimony of Kenneth Lanning,*fn4 August 14, 2009 at 33, United States v. Brian Burns, No. 07 cr 556 ("A very important part of the grooming process for many offenders is to simply listen... offenders will sometimes just nonjudgmentally listen to these kids, empathize with them, sympathize with them, talk to them and so on.")
Indeed, the "grooming" theory appears to presume that once a certain level of explicit sexual content enters into the relationship between an adult and a minor, any contact, communication, or kindness offered by the older to the younger must be viewed in the eyes of the law as nothing but a series of small, seductive steps towards the physical consummation of the older person's sexual desires. Put another way, the grooming theory -- particularly here, where it appears Burns provided genuine counsel to M and felt real affection for her -- foists a damning teleology on a series of actions each of which might have been motivated by a variety of ends or no ends at all. "Grooming," then, is a powerful lens through which to view human behavior in this kind of case because it radically simplifies the mess of Burns's and M's competing feelings, urges, and needs over the course of their relationship into the neat dichotomy of victim and predator. The force of this lens is most evident when the government asks the court to view the qualities that led dozens of individuals to write letters testifying to Burns's character as the very "tools the defendant used to accomplish his crimes." Resp. 11. Thus, Burns's open ear to M's feelings about her parents' divorce and her father's heavy ...