Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:06 CR 109--Rudy Lozano, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before BAUER, POSNER, and WOOD, Circuit Judges.
This is Erik Zahursky's second appeal to this court. In 2007, a jury convicted Zahursky of attempting to coerce or entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b)--an offense for which Zahursky received a 262-month prison term. Zahursky appealed, challenging both his conviction and a sentencing enhancement based on § 2G1.3(b)(2)(B) of the sentencing guidelines. We affirmed the conviction, but we vacated Zahursky's sentence and remanded, ruling that § 2G1.3(b)(2)(B) was inap- plicable. On remand, the district court, relying in part on § 2G1.3(d) of the guidelines, sentenced Zahursky to 210 months in prison. Zahursky appeals again, arguing that our earlier ruling precludes not only the section (b)
enhancement, but also the section (d) enhancement.
Although § 2G1.3(d) may not apply, we find that Zahursky has forfeited this argument and therefore affirm his sentence.
In 2006, Zahursky, using the pseudonym "gracepace101," began a chat room correspondence with "Sad_Shelly200" (Shelly), a fictitious 14-year-old girl created by the U.S. Secret Service. (The record does not reveal why that agency had become involved, but no one has made any- thing of it.) Shortly thereafter, Zahursky began corre- sponding with "holly1989cutie" (Holly), who represented herself to be 14 years old, but whose actual identity is unknown. We need not describe these conversations in depth here apart from noting that they were graphic; some of the details can be found in our previous opinion, United States v. Zahursky, 580 F.3d 515, 517-20 (7th Cir. 2009). It suffices to say that Zahursky expressed a strong desire to have sex simultaneously with Shelly and Holly, and he prompted them to contact each other. They never did, and his correspondence with Holly ended. Undeterred, Zahursky made plans to have a threesome with the fictitious Shelly and her (also ficti- tious) friend Lindsey.
While en route to meet Shelly and Lindsey, Zahursky was arrested. As we noted, he was eventually convicted of attempting to persuade, induce, entice or coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) and was sentenced to 262 months of imprison- ment. This sentence was based, in part, on two provi- sions of the sentencing guidelines: first, an enhance- ment under U.S.S.G. § 2G1.3(b)(2)(B) for "unduly influenc[ing] a minor," based on his correspondence with Holly; and second, a pseudo-count enhancement under § 2G1.3(d), which was also based on his correspon- dence with Holly. (A "pseudo-count" appears to be the term used by the Sentencing Commission staff to describe an uncharged offense. See Thomas W. Hutchison et al., Federal Sentencing Law and Practice § 3D1.2 (2012 ed.).)
In 2009, Zahursky appealed his sentence, asserting that the undue influence enhancement should not have been applied when his advisory guidelines offense level was calculated. We found merit in this argument, writing that "§ 2G1.3(b)(2)(B) cannot apply where the defendant and the minor have not engaged in prohibited sexual conduct." Zahursky, 580 F.3d at 526. Finding that the record failed to contain any evidence that Zahursky and Holly had ever met--or even that Holly was a minor--we remanded for resentencing. Id. at 527-28. On remand, Zahursky received a lower sen- tence of 210 months. The recalculated guidelines sen- tence no longer included the subsection (b)(2)(B) enhance- ment, but it still contained the section (d) enhancement. Zahursky now appeals the use of § 2G1.3(d) to enhance his advisory guideline offense score.
Where a conviction under 18 U.S.C. § 2422(b) involves multiple minors, U.S.S.G. § 2G1.3(d) directs a sen- tencing court to treat the relevant conduct with each person as if it were a separate count. Unlike the statute, however, the guideline (that is, § 2G1.3(d)) does not contain an "attempt" provision. This means that the government must prove that each relevant person was a minor. See United States v. Cote, 504 F.3d 682, 687-88 (7th Cir. 2007) (explaining relevance of the attempt provi- sion). The guideline defines the term "minor" expansively: for purposes of § 2G1.3(d), a minor is either (1) a person who has not attained the age of 18 years, (2) a person, whether fictitious or not, who is represented by a law enforcement officer to be under the age of 18 and available for sexually explicit conduct, or (3) an under- cover law enforcement officer who represented herself to be less than 18 years old. U.S.S.G. § 2G1.3 app. n.1.
The enhancement under § 2G1.3(d) cannot be based on the first of these definitions, for reasons similar to those we discussed in our earlier opinion. There we were considering an enhancement under U.S.S.G. § 2G1.3(b)(2)(B). The relevant definition of "minor" for section (b) is narrower than it is for section (d). Section (b) "does not apply in a case in which the only 'minor' . . . involved in the offense is an undercover law enforcement officer." U.S.S.G. § 2G1.3(b) app. n.3(B), ¶ 2. Thus, a person is a minor for subsection (b) purposes only if she is less than 18 years old. The record here contained no evidence to that effect. Zahursky, 580 F.3d at 527.
The government was therefore required to prove that Holly was either a law enforcement officer or the fictional creation of such an officer. Indeed, we sug- gested that this was a possibility in our earlier opinion. Id. But Zahursky correctly notes that just as we have no way of verifying that Holly was a 14-year-old female, we also cannot know whether she was a law enforce- ment agent, or if she was anyone else. Critically, however, we lack this clarity largely because Zahursky's first appeal made no mention of § 2G1.3(d). Zahursky chose in his first appeal to focus on the undue influence enhancement described in § 2G1.3(b)(2)(B). If he had complained on that appeal about the section (d) pseudo-count enhancement, then ...