Computer Use / Misrepresentations
Chapter 9: Sentencing Guidelines
USSG § 2G2.1(b)(6)
Computer Use / Misrepresentations
GUIDELINES LANGUAGE
USSG § 2G2.1(b)(6):
“If, for the purpose of producing sexually explicit material or for the purpose of transmitting such material live, the offense involved
(A) The knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct; or
(B) The use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually explicit conduct, increase by 2 levels.”
The application notes state that (b)(6)(A) is intended to apply “ only to misrepresentations made directly to a minor or to a person who exercises custody, care, or supervisory control of the minor .” It therefore does not apply to “ a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor .”
Furthermore, (b)(6)(A) may apply to misrepresentations of a participant’s name, age, occupation, gender, or status, as long as it was made “ with the intent to persuade, induce, entice, coerce, or facilitate the travel of ” a minor. Therefore, the use of a computer screen name without such intent is not sufficient for the enhancement to apply.
The application notes also clarify that (b)(6)(B) is intended to apply “ only to the use of a computer or an interactive service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor ,” and therefore does not apply to the use of a computer to buy airplane tickets for a minor.
For more information on how circuits conceptualize a person who exercises custody, care, or supervisory control of the minor, see the relevant notes in 2G2.1(b)(5).
History
2G2.1(b)(6) was added in part on November 1, 1997, and in part on November 1, 2000. In 2004, (b)(3) was moved to (b)(6), and “interactive computer service” replaced “Internet-access device.”
MISREPRESENTATION OF IDENTITY
Mere misrepresentation of age is sufficient for the two-level enhancement to apply, as was the case when defendants’ misrepresentation of their age was instrumental in gaining access to minors.[1] The Eighth Circuit clarifies that the burden is not on the minor victims to research the true age of the defendant.[2]
[1] United States v. Hinkley, 803 F.3d 85, 93 (1st Cir. 2015); United States v. Starr, 533 F.3d 985, 1002 (8th Cir. 2008)
[2] United States v. Starr, 533 F.3d 985, 1002 (8th Cir. 2008)
COMPUTER USE
The use of a smartphone to call and text minors to ask for sexually explicit images qualifies as computer use for enhancement application purposes.[3]
The enhancement under (b)(6)(B)(ii) does not apply to the use of a computer to desensitize victims to sexual activity to persuade them to participate in such activity. The Second Circuit interpreted “participation with” a minor to require a situation in which one person solicits another person to engage in sexual activities with a minor.[4]
[3]United States v. Mathis, 767 F.3d 1264 (11th Cir. 2014)
[4]United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009)
