EFTA00191587

Page 3 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
computer in transmission of the material, was not 
erroneous even though trial court failed to make 
required factual findings; defendant failed to create 
any dispute of fact inasmuch as his conviction 
established that he transmitted child pornography by 
computer, and evidence at trial showed that he sent 
and downloaded child pornography. 18 U.S.C.A. § 
2252(a)(1), 
(a)(4XB); 
Fed.Rules 
Cr.Proc.Rule 
32(cX1), 18 U.S.C.A.; U.S.S.G. § 2G2.2(bX5), 18 
U.S.C.A. 
191 Sentencing and Punishment 350H 0=,995 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(H) Proceedings 
350HIV(H)3 Hearing 
350Hk992 Findings and Statement of 
Reasons 
350Hk995 k. Necessity. Most Cited 
Cases 
Imposition, in sentencing on three counts relating to 
interstate transportation or transmission of images 
of child pornography, of enhancement on basis that 
offense involved distribution, was not erroneous 
even though trial court failed to make required 
factual findings; defendant's objections failed to 
create any dispute of fact inasmuch as nothing 
contradicted evidence that he transmitted child 
pornography as part of his attempt to entice a minor 
into sexual activity. 18 U.S.C.A. § 2252(a)(1), 
(aX4XB), 
2422(b); 
Fed.Rules 
Cr.Proc.Rule 
32(cX1), 18 U.S.C.A.; U.S.S.G. § 2G2.2(bX2). 18 
U.S.C.A. 
1101 Sentencing and Punishment 350H .
;995 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350H11(H) Proceedings 
350HIV(H)3 Hearing 
350Hk992 Findings and Statement of 
Reasons 
350Hk995 k. Necessity. Most Cited 
Cases 
Imposition, in sentencing on three counts relating to 
interstate transportation or transmission of images 
of child pornography, of enhancement on basis that 
offenses involved sadistic or masochistic conduct, 
Pagc 3 
was not erroneous even though trial court failed to 
make required factual findings; defendant did not 
dispute 
that his computer 
contained 
images 
portraying sexual penetration of prepubescent girls 
that would likely be painful, and he did not raise a 
legal controversy about the definition of sadistic 
conduct for purposes of the enhancement. 18 
U.S.C.A. 
§ 
2252(aX1), 
(a)(4XB); 
Fed.Rules 
Cr.Proc.Rule 32(cX1), 18 U.S.C.A.; U.S.S.G. § 
2G2.2(bX3), 18 U.S.C.A. 
•373 On Appeal from the United States District 
Court for the Northern District of Ohio. 
Before GUY and DAUGHTREY, Circuit Judges; 
and LAWSON, District Judge.' 
FN' The Honorable David M. Lawson, 
United States District Judge for the Eastern 
District of Michigan, sitting by designation. 
GUY, Circuit Judge. 
**I Defendant, James Stanley Fuller, appeals 
following his conviction by a jury on four counts: 
(I) attempting to entice a minor by computer or 
telephone to engage in criminal sexual activity (18 
U.S.C. § 2422(b)); (2) interstate transportation of 
photographic computer files from Georgia to Ohio 
depicting minors engaged in sexually explicit 
conduct (18 U.S.C. § 2252(a)(1)); (3) interstate 
transmission of photographic computer files by 
computer depicting minors engaged in sexually 
explicit conduct (18 U.S.C. § 2252(aX1)); and (4) 
possession of photographic computer files that had 
been transported in interstate commerce depicting 
minors engaged in sexually explicit conduct (18 
U.S.C. § 2252(aX4XB)). Defendant, who chose to 
represent himself, was sentenced to a term of 
imprisonment of 135 months to be followed by a 
two-year term of supervised release. 
Through appointed counsel, defendant challenges 
his sentence on the grounds that the district court 
failed to make adequate factual findings and erred 
in its application of the guidelines. In addition, 
counsel contends (in an argument also made in 
defendant's pro se 
filings), 
that 
defendant's 
convictions on counts 2, 3, and 4 must be vacated 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191987

Page 4 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 37I, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
under Ashcroft I Free Speech Coalition. 535 U.S. 
234. 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), 
because the government failed to prove that the 
depictions in the computer files were of actual•374 
human beings. Although sometimes repetitive and 
undeveloped, defendant's pro se filings include 
arguments against 
the admission of evidence 
obtained illegally from America On Linc (AOL) or 
as a result of an illegal search of the apartment 
where he had been staying, and several challenges 
to his convictions on what appear to be sufficiency 
of the evidence grounds. For the reasons discussed 
below, we affirm defendant's convictions and 
sentence. 
1. 
Defendant came to the attention of the FBI after two 
adult 
females, Margaret Dudas and Marjorie 
Vizurraga, reported his preoccupation with having 
sex with minors. Both women made contact with 
defendant over the Internet through the instant 
messaging (IM) service offered by AOL and 
communicated with him by e-mail and telephone 
before meeting him in person. 
Fuller used the screen name "Blueey0123" to 
communicate with Dudas through AOL. During one 
telephone conversation with Fuller, Dudas received 
an IM from someone using the screen name " 
K9Teacher" that forwarded a picture of a dog in a 
sexual position with a woman. Dudas later realized 
that she heard the AOL chimes on Fuller's end of 
the line each time "K9Teacher" communicated with 
her, but when she blocked messages from " 
K9Teacher" 
the chiming stopped. Fuller met 
Dudas at her home and, after consensual sex, 
commented on a photograph of Dudas's 14-year-old 
daughter. When Fuller asked about sex between 
Dudas and her daughter and expressed interest in 
having sex with them both, Dudas threw him out. 
Fuller communicated with Vizurraga through AOL 
using the screen names "Stan046" and "Blueey0123. 
" Fuller, who said he trained major league baseball 
players around the country, stayed with Vizurraga 
in Cleveland during their brief relationship. She 
testified that she ended their relationship after about 
Page 4 
a month because of his preoccupation with sex and 
his desire to have her participate in sexual acts with 
multiple partners, including a 15 year-old female 
babysitter."41
FN1. Both Dudas and Vizurraga testified 
explicitly about what Fuller had said about 
sexual acts he wanted them to perform on 
underage girls while he participated. 
Fuller, 
representing 
himself 
at 
trial, 
cross-examined both of them. 
**2 FBI Special Agent Brian Vigncaux began 
investigating 
Fuller. 
Vigneaux 
leamed 
from 
another FBI office that an earlier AOL account in 
Fuller's name had been terminated for having 
transferred child pomography. In answer to an 
administrative subpoena, AOL advised that Fuller 
had been a member of AOL since February 27, 
2000, 
and 
used 
screen 
names 
including " 
Blueey0123," "April0435," and "K9Teacher01." 
With this information, Vigneaux connected to the 
Internet via AOL and, using the undercover screen 
name "Peaches14kwl," added "Blucey0123" to the 
account's IM "buddy list." On July 12, 2000, 
Vigneaux made contact with defendant and relayed 
that "Peaches" was almost 14 years old and lived 
with her mother. Fuller said he was 48 years old, 
and they exchanged photographs. Vigneaux sent 
Fuller a photograph of Special Agent Kelly Liberti, 
which had been taken when she was 14 years old 
and in which she was dressed as a cheerleader. As 
the session continued, Fuller asked "Peaches" to 
call him on the telephone and discussed, in sexually 
explicit terms, her body, mother/daughter sex, 
masturbation, and other *375 sexual acts they could 
do together.rs2 After this contact, Fuller traveled 
from Georgia to Cleveland, Ohio, taking his laptop 
computer with him. 
FN2. Vigneaux employed a 
computer 
program to record all keystrokes by both 
participants to the IM session and another 
to capture the e-mails and pictures sent by 
Fuller. In addition, the FBI recorded the 
subsequent 
telephone 
conversations 
O 2007 Thomson/ West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.118cdestination=alp&prft=H... 12/18/2007 
EFTA00191988

Page 5 of 13 
77 Fed.Appx. 371 
Page 5 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
between Fuller and Agent Liberti. 
During their next IM session on July 17, 2000, 
Fuller told "Peaches" that he was in Cleveland and 
was staying with a major league baseball player. 
He asked about meeting with her, offered to take 
digital pictures of her, and questioned her in explicit 
terms about her sexual activity and asked if she had 
sex with a 13•year-old girlfriend. Fuller again 
asked that she call him on his cellular telephone. 
Vigneaux arranged to have Agent Libeni call a few 
hours later, posing as "Peaches" and identifying 
herself as "Brianna." Fuller asked her age again 
and was told she was "almost 14." Fuller tried to 
arrange for them to meet that night, told her they 
could have privacy, promised that they would go 
slowly, and talked explicitly about sex. 
Fuller contacted "Peaches" by instant messaging on 
July 19, 2000, and suggested that they could meet 
while her mother was at work. He accused her of 
being a "talker and not a doer." At the end of the 
session, she agreed to call him 30 minutes later. 
Libeni called Fuller as agreed, telling him she could 
ride her bicycle to meet him the following afternoon 
after her mom left for work. Fuller asked about her 
mom's age, looks, and if she was dating anyone. 
He also asked in explicit terms about specific sex 
acts; including multiple partners, domination, sex 
with dogs, sex with other girls, and mother/daughter 
sex. When Libeni expressed interest, Fuller agreed 
to c-mail her some pictures of things they were 
talking about. They discussed arrangements for 
their meeting the next day, and Liberti agreed to 
call him as soon as her mother left for work. Fuller 
later sent "Peaches" an e-mail with two pictures of 
women having sex with dogs. 
**3 The next morning, July 20, Fuller and 'Peaches 
" conversed by instant messaging about where and 
when they would meet and what they would each be 
wearing. Fuller e-mailed "Peaches" several more 
sexually explicit pictures; including one Fuller told 
her was of a 13-year-old girl.FN3 Fuller said she 
could meet two Cleveland Indian baseball players 
after he picked her up, explaining that he would say 
she was the daughter of a friend, and told her that 
they then could go to the apartment where he was 
staying to be alone. About 30 minutes later, Liberti 
called Fuller and they arranged to meet at a nearby 
marina. Fuller said he would be driving a white " 
Jimmy" and would be wearing a blue warm-up 
outfit. When Fuller arrived at the arranged meeting 
place, he was arrested. 
FIN13. That file was named "13 year old 
getting flicked and licking mom.bmp." 
Agents found handwritten notes referring to " 
Peaches" and giving directions to the meeting place, 
as well as receipts documenting Fuller's travel from 
Georgia to Ohio. They also found a digital camera, 
a blindfold, a cat-o-nine tails, and a prescription 
bottle containing Viagra. Agent Liberti located 
Russell Branyan, the baseball player with whom 
Fuller had been staying, and told him about the 
arrest. Branyan had known Fuller professionally 
for several years, but Fuller had never stayed with 
him before. 
Branyan testified that Fuller spent a lot of time 
using the computer in the spare *376 bedroom of 
the apartment. Although Branyan had asked Fuller 
to leave because he had continued to smoke 
cigarettes in the apartment, Fuller had not vacated 
before his arrest. Branyan offered to cooperate, 
gave them consent to search the apartment, and 
signed a consent-to-search form to that effect. 
When agents entered the apartment and looked in 
the spare bedroom, they saw a laptop computer that 
displayed the AOL sign-on screen for "Blueey0123" 
and nine "minimized" boxes showing partial file 
names. Although Branyan had given permission to 
remove Fuller's possessions, agents waited and 
obtained a search warrant before seizing defendant's 
Compaq Presario notebook computer. 
Barry Gummow, a computer forensic examiner, was 
called to assist in the execution of the warrant. 
Gummow "maximized" the nine boxes so that 
photographs could be taken of the images, which 
included sexually explicit pictures involving both 
mother/daughter sex and sex with dogs. Grummow 
then shut down the computer and seized it for 
examination. On the computer, Gummow found 
evidence of child pornography downloaded through 
AOL from the Internet; Internet history files 
C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191989

Page 6 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371. 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
showing child pornography web sites visited by 
Fuller; and photographs of Fuller and other women, 
some taken with the digital camera seized at the 
time of his arrest. Among the pictures found on 
Fuller's computer were those that had been sent 
between Fuller and "Peaches." 
Using the Tanner Scale of Pubertal Development, 
Dr. Douglas Rogers, a pediatric endocrinologist at 
the Cleveland Clinic, testified that 21 pictures taken 
from defendant's computer depicted minor females 
at or below Tanner Stage Four (for which the 
average age is 13), and that 13 of those pictures 
were of females at or below Tanner Stage One (for 
which the average age is 10). The government also 
offered the opinion of Douglas Rehman, an expert 
in computer 
forensics and child exploitation, 
concerning his examination of the images for 
evidence of alteration. 
"4 Arrested pursuant to a complaint and warrant 
on July 20, 2000, Fuller was detained without bond. 
After the indictment was filed on August 9, 2000, 
Fuller was arraigned and entered a plea of not 
guilty. Defendant's retained counsel withdrew, as 
did defendant's next two court-appointed attorneys. 
Defendant's third appointed counsel represented 
him before trial and then served as an advisor 
during trial because defendant had asserted his right 
to represent himself. That attorney was permitted 
to withdraw prior to sentencing, and new counsel 
served as defendant's advisor at sentencing and filed 
a brief on appeal. Timely notice of appeal was 
filed both by Fuller and by his appointed counsel. 
A. Denial of Motion to Suppress 
[I) Fuller filed several motions to suppress 
evidence, which were denied in written memoranda 
and orders. In reviewing the denial of a motion to 
suppress, we review the district court's factual 
findings for clear errv- and the legal conclusions de 
novo. United States I Atkin, 107 F.3d 1213, 1216 
(6th Cir.1997). In his pro se filings, Fuller argues 
that the FBI illegally seized communications from 
Page 6 
AOL without a warrant in violation of 18 U.S.C. § 
2703. Because this argument was not mentioned in 
the district court's orders, it is not clear whether the 
issue was preserved for appeal. Even if it was, 
however, 
the 
record 
is 
plain 
that 
the 
communications 
captured, 
both 
the 
instant 
messaging sessions and e-mails, were sent by Fuller 
to the undercover FBI account and were not 
obtained through disclosure forced upon AOL. 
*377 [2] Fuller challenges the search and seizure of 
evidence found in the spare bedroom of Branyan's 
apartment on two different grounds. Fuller argues 
first that the warrant lacked particularity because 
Attachment G to the warrant only identified items to 
be seized, but did not authorize the search for those 
items. 
We 
cannot accept 
this distinction as 
meaningful and agree with the district court's 
implicit finding that the search warrant was 
sufficiently particularized with respect to the scope 
of the search to satisfy the Fourth Amendment and 
allow search for the computer and the files and 
records stored on it. Although Fuller challenged 
the warrant on other grounds, the district court 
observed in a footnote that defendant 
has not argued that the description "all personal 
computers/computing systems located therein" is 
unconstitutionally overbroad. The Court notes that 
the determination of the requisite particularity must 
be "flexible" and the description of items to be 
seized 
need 
only 
be 
"as 
specific 
as 
the 
it
circumstances and the nature of the 
tivity under 
investigation permit." United States 
Blair, 214 
F.3d 690, 697 (6th Cir.2000) (citing 
tilted States 
I Abler. 167 F.3d 1021, 1033 (6th Cir.1999)). 
[3) Second, Fuller challenges the validity of 
Branyan's consent for the search of the apartment's 
spare bedroom. Specifically, Fuller argues that he 
was an overnight guest in Branyan's apartment and 
spent most of his time in the spare bedroom with the 
door closed. Consequently, Fuller claims, Branyan 
lacked authority to consent to a search of the spare 
bedroom that revealed the presence of the computer 
and led to the search warrant. There is support for 
defendant's contention that, as an overnight guest, 
he had an expectation of privacy that gives hi 
standing to challenge the search. Minnesota 1 
CD 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=11... 12/18/2007 
EFTA00191990

Page 7 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 
85 (1990). Nonetheless, a warrantless search does 
not violate the Fourth Amendment if police have " 
consent to search from one who possesses common 
authority over the premises with the absent 
n-consenting target of the search." United States 
t
Clutter, 914 .24 775, 777 (6th Cir.1990) (citing 
Hired
States 
Matlock 415 U.S. 164, 169, 94 
S.Ct. 988, 39 
.Ed.2d 242 (1974)). The record 
supports the district court's finding that Branyan, as 
the lessee, had authority to consent to the search of 
the spare bedroom.FN4
RN14. The district court observed that "the 
lessee's consent to the instant search of the 
spare bedroom provides an independent 
g
reason to deny the Defendan ' 
. n to 
suppress. See United Stain 
979 
1
i
2c1 77, 79 (6th Cir.1992); unite 
tales 
Clutter, 914 F.2d 775, 777 (6th 
r.1990), cert. denied,499 U.S. 947, III 
S.Ct. 1413, 113 Iird.2d 466 (1991) 
(citing United States 
Matlock, 415 U.S. 
164, 169, 94 S.Ct. 9 8, 39 L.Ed.2d 242 
(1974))." 
Moreover, 
even 
if 
the 
government could not show Branyan's 
consent was valid, a warrantless entry does 
not violate the Fourth Amendment when it 
is based on consent from a third party 
whom the agents reasonably believed 
(even if erroneously) to have common 
rt.over the premises. United Stater 
979 F.2)77, 79 (6th Cir.1992) 
(quoting Illinois 
Rodriguez, 497 U.S. 
177, 110 S.Ct. 
93, III L.Ed.2d 148 
(1990)). 
B. Attempted Enticement of A Minor 
**5 Count 1 of the indictment charged that between 
July 12 and July 20, 2000, James Stanley Fuller, 
using facilities and means of interstate and foreign 
commerce, that is, computerized access to the 
Internet and telephones, did knowingly attempt to 
persuade, induce, entice, and coerce an individual 
who had not attained the age of 18 years, that is, a 
thirteen (13) year old girl, to engage in sexual 
activity, as defined in Title 18, Section 2246, 
Page 7 
United States Code, for which *378 JAMES 
STANLEY FULLER, a.k.a. JAMES STANLEY, 
a.k.a. STAN FULLER, a.k.a. BLUEEY0123, a.k.a. 
K9TEACHER01, can be charged with a criminal 
offense under Title 18, Section 2243, United States 
Code, 
under 
Ohio 
Revised 
Code 
Sections 
2907.04(A), 2907.06(A)(4), and 2907.07(C), and 
under Code of Georgia Sections 16-6-2, 16-6-3, and 
16-6-4; all in violation of Title 18, United States 
Code, Section 2422(b). 
Fuller argues that the government offered no proof 
that the victim was in fact a minor, that any sexual 
activity occurred, or that there was the necessary 
nexus to interstate or foreign commerce."45
FNS. Fuller also argues that the indictment 
was jurisdictionally deficient because it 
refers to offenses for which he can be 
charged. On the contrary, the indictment 
clearly charges Fuller, in language that 
parallels 
the 
statute, 
with 
attempted 
enticement of a minor to engage in sexual 
activity for which he could be charged 
under state law. Seel8 U.S.C. § 2422(b). 
[4) First, Fuller asserts that both the minor age of 
the victim and a sexual act are elements of the 
charged offense. This claim is meritless. This 
statute, as amended in 1998 to add "or attempts to 
do so," criminalizes both the enticement and the 
attempted 
enticement, 
but 
not 
the 
ac 
performance of the sexual activity. United States"! 
Bailey, 228 F.3d 637, 639 (6th Cir.2000) (intent to 
commit the sexual act is not required to prove 
attempt to persuade a minor to engage in sexual 
activity), cert. denied.532 U.S. 1009, 121 S.Ct. 
1737, 149 L.Ed.2d 661 (2001). 
Further, as the district court found in denying 
Fuller's motion to dismiss count I, a defendant may 
be charged with knowingly attempting to persuade, 
induce, entice, or coerce a minor to engage in 
sexual activity even though he is mistaken as to the 
true age of the person with whom he admittedly 
communicated. Several courts have specifically 
held that a defendant may be convicted of attempted 
persuasion or enticement of a minor even though 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstreantaspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191991

Page 8 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
the defendant had been communicating with an 
adult FBI age 
posing as a minor. See, e.g., 
i
United States ■ Root, 296 F.3d 1222 (11th 
Cir.2002), cert. 
enied,537 U.S. 1176, 123 S.
1006, 154 L.Ed.2d 921 (2003); United States 
. 
/111
251 F.3d 510 (5th Cir.2001); United States 
102 F.Supp.2d 946, 948 (N.D.I11.2000). FN6
FN6. Although not fully developed, Fuller 
also seems to be arguing that there was 
insufficient evidence to support a finding 
that he believed he was communicating 
with a minor. Fuller specifically refers to 
evidence that, during their final telephone 
conversation on July 20, Liberti indicated 
she was "almost 14," "14 going on 18," " 
going on 21," and then assented when 
Fuller responded: "That's what I want to 
hear ... you're 21 as far as I'm concerned." 
While neither party discusses 
whether 
Fuller preserved such a challenge by 
moving for judgment of acquittal at the 
close of the proofs, we need only examine 
the transcripts of the IM sessions and 
telephone calls to be more than satisfied 
that there was sufficient evidence from 
which a rational trier of fact could find 
Fuller believed he was communicating 
with a minor. 
Finally, 
defendant 
seems 
to 
argue 
that 
the 
government failed to prove the interstate commerce 
element of the offense because telephone calls to 
intemet service providers (ISP) made within the 
caller's local calling area are "local calls" for 
reciprocal compensation arrangements under the 
Teleconun 
ations Act of 1996. See Bell Ad. 
Tel. Cos. 
FCC, 206 F.3d I (D.C.Cir.2000) 
(vacating F 
ruling that such calls were not local 
because they extend beyond the ISP to out-of-state 
web sites). The "local call" designation for 
compensation purposes does not control this issue. 
**6 The statute requires that the defendant have 
used "the mail or any facility or *379 means of 
interstate or foreign commerce" to commit the 
offense of attempted persuasion or enticement. 18 
Page 8 
U.S.C. § 2422(b). While there was evidence that 
all communications initiated by customers using 
AOL were 
through one of three facilities 
located in 
before being delivered to the 
recipient, the interstate commerce connection was 
established in this case by indisputable evidence 
that Fuller used both the Internet and the telephone, 
facilities or means of interstate commerce, in 
committing the offense."47
FN7. Fuller also asserts that because 
counts I and 3 refer to interstate and 
foreign commerce, the government was 
required to prove both. We find no error 
in this regard. 
C. Counts 2, 3, and 4 
Seeking reversal of his convictions on counts 2, 3, 
and 4, Fuller argues-both through counsel and in his 
pro se pleadings-that Obese convictions 
were 
invalidated by Ashcroft I Free Speech Coalition, 
535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 
(2002), because the government failed to prove that 
the visual depictions were of "real" children as 
opposed to virtual, computer-generated images that 
"appeared to be" children. 
Decided several months after Fuller was sentenced, 
the Court in Free Speech Coalition struck down, as 
overbroad and unconstitutional, two provisions 
added by the Child Pornography Prevention Act of 
1996 (CPPA). Those two provisions expanded the 
definition of child pornography to include: any 
visual depiction, including (I) a computer generated 
image, that "is, or appears to be, of a minor 
engaging in sexually explicit conduct,"18 U.S.C. § 
2256(8XB) (emphasis added); and (2) any sexually 
explicit image that was "advertised, promoted, 
presented, described, or distributed in such a 
manner that conveys the impression" of depicting " 
a minor engaging in sexually explicit conduct,"I8 
U.S.C. § 2256(8XD) (emphasis added). The Court 
held 
that 
by 
encompassing 
"virtual" 
child 
pornography that involved no real children these 
definitions violated the First Amendment because 
they proscribed "a significant ta 
of speech 
that is neither obscene under 
nor child 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.corn/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191992

Page 9 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
pornography 
under 
Ferber." 
Free 
Speech 
Coalition,53 
at 1396, 122 S.Ct. 1751 
(referencing 
A California, 413 U.S. 15, 93 
ii
Ct. 2607, 
. 
d 419 (1973), and New York 
Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 
.Ed..2d 1113 (1982)). 
[5] To the extent that Fuller's claim can be 
understood to argue that his convictions could have 
been based on an unconstitutional definition of 
child pornography, we find no danger of this was 
presented here because Fuller's convictions were for 
violations of 18 U.S.C. § 2252(aX1) and (aX4XB). 
These sections each require proof both that "the 
producing of such visual depiction involves the use 
of a minor engaged in sexually explicit conduct" 
and that "such visual depiction is of such conduct." 
18 
U.S.C. 
§ 
2252(aXIXA) 
and 
(B) 
and 
2252(aX4XBXi) 
and 
(ii). 
These 
elements 
correspond to the definition of child pornography 
that predated the CPPA amendments, now found in 
18 U.S.C. § 2256(8XA), which was not invalidated 
by the Court in Free Speech Coalition. Free 
Speech Coalition,535 U.S t 1397, 122 S.Ct. 1751; 
see also United States 
Kelly, 314 F.3d 908, 
911-13 (7th Cir.), cert. denied,538 U.S. 1001, 123 
S.Ct. 1923, 155 L.Ed.2d 829 (2003). As a result, 
we find Fuller's convictions on counts 2, 3, and 4 
t
were not rendered unconstitutional 
Free Speech 
Coalition. Accord United States 
Deaton, 328 
F.3d 454, 455 (8th Cir.2003) (upho ing conviction 
under § 2252(aX4)(8)).FN8
FN8. To the extent that defendant may rely 
on recent cases applying Free Speech 
Coalition to child pornography convictions 
under a related statute, 18 U.S.C. § 2252A, 
those cases must be distinguished because § 
2252A 
incorporates 
the 
statutory 
definition of child pornography, including 
those provisions struck down by the 
Supreme Court, and the ju 
was instructed 
accordingly. United States I Ellyson, 326 
F.3d 
522 
(4th 
Cir.2003) 
(reversing 
conviction under § 2252A(aX5XB) where 
issue was preserved). On plain error 
review, however, some courts have found 
the error did not affect the defendant's 
Page 9 
substantial rights because there was no 
evidence that the depictions were anything 
other than of "actual" minors. See, e.g., 
Kelly, 
314 
F.3d 
at 
911 (affirming 
conviction 
under 
§ 
2252A(aXSXB) 
because defendant possessed " 
" child 
Pornography); United States 
312 
F.3d 1250, 1259 n. 11 (III 
tr. 002), 
cert. denied,538 U.S. 954, 123 S.Ct. 1646, 
155 
L.Ed.2d 
502 
(2003) 
(affirming 
because erroneous instructions did not 
affect defendant's substantial rights where 
no one claimed that the images were of 
virtual children). 
*380 **7 Next, without identifying this claim as a 
challenge to the sufficiency of the evidence. 
defendant nonetheless argues that the government's 
proofs were insufficient to support a finding that the 
visual depictions were produced using "actual" 
minors. In reviewing the sufficiency of the 
evidence, "the relevant question is whether, after 
viewing the evidence in the light most favorable to 
the prosecution, any rational trier of fact could have 
found the essential elements 1 the crime beyond a 
reasonable doubt." Jackson 
Virginia, 443 U.S. 
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FM
FN9. Because the government does not 
argue that our review is for plain error, we 
assume such a challenge to the sufficiency 
of the evidence was preserved by motion 
for judgment of acquittal at the close of the 
evidence. Neither party, however, has 
indicated whether that was in fact the case. 
[6] In particular, defendant argues that although Dr. 
Rogers testified concerning the developmental 
stages of the depicted minors, he conceded that he 
was not an expert in computers and could not 
determine whether the images were computerized or 
were of real minors. When asked if he could tell 
whether the pictures on defendant's computer were 
of actual people, Grununow testified that some of 
the pictures were of the defendant and other known 
persons and that the visual depictions of child 
pornography "appeared to be" live human beings. 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191993

Page 10 of 13 
• 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
Finally, defendant relies on the statement by 
Rehman, the expert in computer forensics and child 
exploitation, that: "All of the images appear to 
have real children in them." When read in context, 
however, and in the absence of any evidence that 
the images were computer-generated or "virtual" 
child pornography, it is clear that there was 
sufficient evidence that actual minors were involved 
in the production of the images. 
Significantly, no contrary evidence was offered to 
suggest either that any of the visual depictions were 
computer generated, or that they were not produced 
using actual minors. Having not only heard the 
above testimony, but also having viewed the images 
in question, the jury was in a position to draw its 
own conclusions about whether they depicted actual 
children. 
Deacon, 
328 
F.3d 
at 
455 (jury's 
conclusion that real children were depicted may be 
T
upheld even when the only evidence offered 
the 
images themselves); see also United States 
Vig, 
167 F.3d 443, 449-50 (8th Cir.1999) 
where 
defendant simply argues that images may or may 
not be of real children, the government is not 
required to negate as part of its proofs the 
unsupported speculation).FN le 
FNIO. Fuller's pro se pleadings also assert 
that the government failed to meet its 
burden of proving that he was personally 
involved in the production of the images. 
As the district court observed in denying 
one of defendant's motions to dismiss, 
Fuller was not charged with manufacture 
or 
production of child 
pornography, 
proscribed by 18 U.S.C. § 2251, but rather 
with transportation and possession of child 
pornography 
in 
interstate 
or 
foreign 
commerce in violation of 18 U.S.C. § 2252 
, which does not require that the named 
defendant be involved in any way in the 
production of 
e visual depiction. See 
0I 
United States 
Tidwell, No. 89-5880, 
1990 WL 17 
2, '2 (6th Cir. Nov.6, 
1990) 
(unpublished 
disposition) 
(discussing differences between §§ 2251 
and 2252 for double jeopardy purposes). 
Pagc 10 
*381 D. Sentencing 
Fuller, having decided to represent himself at 
sentencing, filed numerous objections to the 
probation department's calculation of the guideline 
range. Each of the objections was specifically 
identified and responded to in a written addendum 
to the presentence report. Due to certain objections 
and 
some 
new 
information, 
the 
probation 
department reduced both the total offense level 
(from 36 to 34) and the criminal history category 
(from III to II). As an initial matter at the time of 
sentencing, the district judge took up and rejected 
the 
recommended 
2-level 
enhancement 
for 
obstruction of justice. Then, after making clear 
that he had carefully reviewed every one of the 
defendant's objections, the court indicated that no 
further argument was necessary with respect to the 
objections already made, overruled those objections 
without specific discussion, and accepted the 
probation department's calculation of the offense 
levels under United States Sentencing Guidelines 
Manual (USSG) §§ 2G2.I and 2G2.2 (1998).FNI I 
FNI I. The 1998 edition of the United 
States Sentencing Guidelines Manual was 
applied in this case due to concerns about 
possible ex post facto problems that might 
arise from subsequent amendments to the 
relevant guideline provisions. 
**8 Without challenging the guideline calculations 
themselves, defendant argues that the district court 
erred by applying enhancements for specific offense 
characteristics without making factual findings 
required by Fed.R.Crim.P. 32(cXI). Despite the 
government's reliance on the context of the 
proceedings and the colloquy with the court at 
sentencing, the record is clear that the district court 
overruled 
defendant's 
objections 
to 
the 
enhancements without articulating the reasons for 
doing so. As we explain more fully below, we only 
affirm because we conclude that the denials asserted 
in the form of objections to the sentencing 
enhancements did not present a controverted or 
disputed matter for which findings were required. 
Even so, we cannot help but observe that this issue 
could easily have been avoided if the district court 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs-WLW7.118cdestination=atp&prft=H... 12/18/2007 
EFTA00191994

Page 11 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
had just addressed each of the enhancements in turn 
and stated the basis for finding that it should be 
applied in this case. 
At the time of sentencing, Rule 32(cX1) (2001) 
stated that: "For each matter controverted, the court 
must make either a finding on the allegation or a 
determination that no finding is necessary because 
the controverted matter will not be taken into 
account in, or will not affect, sentencing." Fig 12 •• 
Because the purpose of the rule is to ensure that 
sentencing is based on reliable facts found by the 
court itself after deliberation, a court may not 
merely summarily adopt the factual findings in the 
presentence report or simply declare that the facts 
are supported Wr a preponderance of the evidence." 
United States I Tarwater, 308 F. 
494, 518 (6th 
Cir.2002) (citing United States 
Corrado, 227 
iinu
F.3d 528, 540 (6th Cir.2000)). 
's court has 
required "literal compliance" with this nile. United 
States I Tacker!. 113 F.3d 603, 613 (6th Cir.1997). 
FN12. 
This 
provision 
was 
replaced, 
effective 
December 
1, 
2002, 
with 
Fed.R.Crim.P. 
32(iX3) 
(2003), 
which 
clarifies that the sentencing court "may 
accept any undisputed portion of the 
presentence report as a finding of fact." 
*382 The requirement of literal compliance, 
however, assumes that the objections raise a matter 
I
which ' controverted. For example, in United 
States 
Treadway, 328 F.3d 878, 885-86 (6th 
Cir.200 , petition for cert. filed,No. 02-11197, — 
U.S.L.W. ---- (U.S. June 9, 2003), where the 
defendant had not objected, orally or in writing, to 
the drug quantity calculation, this court found "no 
reason to require 
a district court to make 
independent findings outside the PSR when the 
facts are undisputed." Id. at 886. Even an 
objection that represents a bare denial or "bare 
bones" assertion of a factual dispute will not give 
rise to a dispute within the meaning of Rule 32 
unless the defendant produces some evidence that 
calls the reliability or correc 
of the alleged 
facts into question. United Stat iell Lang, 333 F.3d 
678, 1 
(6th Cir.2003) (agreeing with United 
States 
Mustread, 42 F.3d 1097, 1102 (7th 
Page 11 
Cir.1994)). 
Defendant claims error in the district court's 
overruling of his objections to the enhancements 
imposed 
for 
the 
following 
specific 
offense 
characteristics: (1) "the material involved 
a 
prepubescent minor or a minor under the age of 
twelve years" (2 levels); (2) "the offense involved 
distribution" (5 levels); (3) "the offense involved 
material that portrays sadistic or masochistic 
conduct or other depictions of violence" (4 levels); 
and (4) "a computer was used for the transmission 
of the material" (2 levels). USSG § 2G2.2(bX1), 
(2), (3), and (5) (1998). The critical question is 
whether the objections placed any of these matters 
in controversy for purposes of Rule 32. 
I. Prepubescent Minor 
**9 [7] Fuller's objection to the first enhancement 
was that the government had failed to prove at trial 
that he had sent or received any visual depiction 
involving a prepubescent minor or a minor under 
the age of twelve years. As outlined above, 
however, Fuller offered no evidence at trial to 
dispute the testimony of Dr. Rogers that 21 images 
were of minors and that 13 of those images were of 
minors at a developmental stage for which the 
average age was 10 years. The only challenge to 
that testimony was the speculation, raised by 
cross-examination, that the images were not of "real 
" children. The fact that "real" children had been 
used was established by defendant's convictions on 
counts 2, 3, and 4. Thus, defendant's denial in this 
regard did not create a dispute as to any fact and the 
applicability of this specific offense characteristic 
cannot be said to have been reasonably controverted. 
2. Use of Computer 
Similarly, Fuller objected to the fourth enhancement 
on the grounds that the government offered no 
evidence that he used a computer to send or receive 
material that involved a minor engaging in sexually 
explicit conduct for the purpose of producing a 
visual depiction of such conduct. This objection 
mirrors 
the 
arguments 
defendant 
made 
in 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs—WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191995

Page 12 of B 
• 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
challenging the sufficiency of the evidence to 
support his convictions on counts 2, 3, and 4, but 
does not deny that "a computer was used for the 
transmission of the material" as is required for the 
enhancement under §2G2.2(bX5). 
[8) Because defendant's conviction on count 3 
required 
proof 
that 
he 
transmitted 
child 
pornography by computer, application of this 
enhancement for that offense cannot be contested. 
In addition, this court has recently adopted the 
Seventh Circuit's interpretation of this enhancement 
as applying equally to material that is either shipped 
by the defendant or received by the defendant as 
long as a computer was used for tke transmission of 
the *383 material. United States I Boyd. 312 F.3j 
213, 216 (6th Cir.2002) (following United States 
Richardson, 238 F.3d 837, 839 (7th Cir.2001)). 
The evidence at trial showed that child pornography 
was not only sent to Liberti, but was downloaded to 
defendant's computer from the Internet. Not only 
was this enhancement required by the convictions 
on counts 3 and 4, but defendant did not directly 
dispute the factual basis at sentencing. 
3. Distribution 
Fuller objected to the enhancement under § 
262.2(bX2), which applied if the offense involved 
distribution. 
The 
application notes 
define " 
distribution" 
to 
include"any 
act 
related 
to 
distribution 
for 
pecuniary 
gain, 
including, 
production, transportation, and possession with 
intent to distribute." USSG § 2G2.2, comment. 
(n.1) (1998). Denying that he gave any visual 
depiction to anyone, defendant also objected on the 
grounds that there was no evidence of distribution 
for any pecuniary gain. 
[9] Although courts have differed on the issue, this 
court has followed the Fifth Circuit's lead and held 
that this enhancement encompasses distribution for 
pecuniary gain, but does not exclud 
istribution for 
any other purpose. United States I Nibbler, 159 
F.3d 233, 237-38 (6th Cir.1998) (trading child 
is
pornography over the Internet was ' tribution for " 
value") (following United States 
Canada, 110 
F.3d 260, 263 (5th Cir.1997)). 
ut see United 
Page 12 
States I 
Laney. 189 F.3d 954 (9th Cir.1999) 
(pecuniary gain required). In fact, the Fifth Circuit 
in Canada found that the defendant's distribution of 
material involving the sexual exploitation of minors 
with a purpose of enticing another to have sex with 
him was sufficient to trigger the enhancement. 110 
F.3d at 263. in this case, nothing in the record 
contradicted the evidence that Fuller transmitted 
child pornography as part of his attempt to entice a 
minor into sexual activity. Nor did defendant's 
objections create a disputed question on the issue. 
FN13 
FN13. 
This 
guideline 
provision 
was 
substantially amended effective November 
1, 2000, to clarify that the enhancement 
applies to distribution for pecuniary gain; 
distribution for the receipt, or expectation 
of receipt, of a thing of value; distribution 
to a minor; distribution to a minor that 
was intended to persuade, induce, entice, 
coerce, or facilitate the travel of a minor to 
engage in prohibited sexual conduct; and 
distribution other than that specifically 
enumerated. USSG § 2G2.2(bg2gA)-(E) 
(2000). 
4. Sadistic or Masochistic Conduct 
"10 Finally, objecting to the 4-level enhancement 
under § 202.2(bg3), Fuller stated generally that the 
government had not charged or proved an offense 
that involved depictions being sent or received by 
computer that portrayed "sadistic or masochistic 
conduct or other depictions of violence." This 
general denial does not create a factual dispute 
concerning the depictions, all of which were 
admitted into evidence and viewed by the district 
court, or present a controverted matter concerning 
the application of this enhancement. 
Although the guidelines themselves do not define 
what is meant by sadistic, masochistic, or violent 
depictions, courts must look to the common 
meaning of these 
terms 
to desennine 
their 
application. See, e.g., United States I Parker, 267 
F.3d 839, 847 (8th Cir.2001), cert. denied,535 U.S. 
1011, 122 S.Ct. 1592, 152 L.Ed.2d 509 (2002); 
0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.118cclestination=atp&prft—H... 12/18/2007 
EFTA00191996

Page 13 of 13 
77 Fed.Appx. 371 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 (Ohio)) 
(Cite as: 77 Fed.Appx. 371) 
United States' Lyckman, 235 F.3d 234, 237-40 
(5th Cir.2000). The term "sadism," which is the 
most relevant to this case, is defined as the " 
infliction of pain upon a love object as a means of 
obtaining sexual release." Lyckman. 235 F.3d at 
238 n. 19 (citation omitted). Construing*384 the 
terms "sadistic conduct" and "other depictions of 
violence" in the context of cases involving child 
pornography, courts have found the enhancement is 
warranted when the offense involves the depiction 
of a sexual act that is "likely to cause pain in one so 
young." Lyckman, 235 F.3d at 238-39. 
A number of courts have found that images 
displaying vaginal or anal penetration of a 
prepubescent minor by either an adult male or a 
foreign object is likely to be painful and constitutes 
"sadistic 
ct" that justifies the enhancement. 
See, e.g., 
312 F.3d at 126143; Parker, 267 
F.3d at 11 
Lyckman, 235 F.3d at 238-31;1
Canada, 110 F.3d at 264; United States 
Caldwell, No. 97-5618, 1999 WL 238655, '9 (6 
Cir. Apr.I3, 1999) (unpublished disposition). One 
circuit has specifically held that the government 
need not present expert medical evidence to gm&
such acts would be painful to a young child. M, 
312 F.3d at 1262. 
[10) As the government aptly observes on appeal, 
the pictures found on defendant's computer included 
images of sexual penetration of prepubescent girls 
that present sufficient basis to fmd the material 
portrayed images of "sadistic conduct" justifying 
the 4-level enhancement."t" Defendant's general 
objection did not dispute that pictures found on his 
computer included images that portrayed sexual 
penetration of prepubescent girls that would likely 
be painful. Nor did defendant present a legal 
controversy about the definition of sadistic conduct 
for purposes of the enhancement. As a result, the 
district court's failure to specify the reasons for 
applying the enhancement was not error.FN IS 
FN14. Government Exhibit 133 included 
two pictures entitled "Creempuff4u 
bottle.bmp" and "Creempuff4u ... fucking 
bottle.bmp." Also, Governments Exhibits 
110, 113, 117, and 122 were entitled " 
Page 13 
 
preteen gets it in the ass.bmp," "12 
year 
old 
getting 
fucked.bmp," 
" 
familyfun.jpg," and "preteen.21.bmp." 
FNIS. As a result, we express no opinion 
with respect to the governments further 
contention on appeal that the enhancement 
under § 2G2.2(bX3) may be based on 
images of bondage or bestiality that were 
not 
identified 
as 
child 
pornography. 
(Government Exhibits 128 to 132 were 
entitled: "strapped to chairpussy.bmp," " 
bondage.jpg," 
"slave.l.bmp," 
and 
" 
slave.2.bmp.") We note, however, that the 
decision relied on by the government to 
support this proposition rested on the 
interplay of the sentencing guidelines and a 
determination of relevant conduct where 
the 
convictions 
involved 
a 
common 
scheme to distribute both obscene material 
that 
depicted 
adults 
involved 
in 
sadomasochistic 
conduct 
and 
sexually 
explicit child pornography that did not 
j r
involve 
Cher violence or sadism. United 
States 
Schultz, 970 F.2d 960 (1st 
Cir.I99
AFFIRMED. 
C.A.6 (Ohio),2003. 
U.S. I. Fuller 
77 Fed.Appx. 371, 2003 WL 22331999 (C.A.6 
(Ohio)) 
END OF DOCUMENT 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?rs=WLW7.11&destination=atp&prft=H... 12/18/2007 
EFTA00191997

Page 1 of 4 
W2stlaw. 
Not Reported in F.Supp.2d 
Page I 
Not Reported in F.Supp.2d, 2003 WL 22118983 (D.N.D.) 
(Cite as: Not Reported in F.Supp.2d) 
U.S. I. Patten 
D.N.D.,2003. 
Only the Westlaw citation is currently available. 
United States District Court,D. North 
Dakota,Southeastem Division. 
UNITED STATES of America, Plaintiff, 
Casey Scott PATTEN, Defendant. 
Criminal File No. C3-03-44. 
July 28, 2003. 
Christopher J. Lancaster, Stefanson Plambeck Foss 
& Fisher, Moorhead, MN, for Defendant. 
MEMORANDUM OPINION AND ORDER 
DENYING MOTION TO DISMISS AND 
DENYING MOTION FOR A BILL OF 
PARTICULARS 
RALPH R. ERICKSON, District Judge. 
•1 Before the Court is Defendant's Motion to 
Dismiss and for Bill of Particulars (doc. # 13). The 
United States filed a brief in opposition (doc. # 14). 
Defendant filed a reply brief (doc. # 19). The 
United States then requested the leave of Court to 
file an additional brief relating to an issue of first 
impression (doc. # 20). The Court granted that 
request and accepted the United States' additional 
brief (doc. ti 22) and allowed Defendant to file an 
additional brief (doc. # 24). 
STATEMENT OF FACTS 
On February 16, 2003, the defendant, Casey Patten, 
logged onto a Yahoo chat room using the screen 
name "got2run400." tie had a conversation with 
someone using the screen name "ndblondie2003." 
At the start of the conversation, ndblondie2003 
identified herself as a sixteen-year-old female who 
lived in Fargo.R'n Defendant told her that he was 
twenty-six and asked her if he was too old. 
Ndblondie2003 replied that she had dated older 
guys before. 
FNI. In reality, ndblondic2003 was West 
Fargo Police Officer Al Schmidt. 
Defendant then discussed sexual matters with 
ndblondie2003. He asked her what sexual position 
she preferred and what type of sexual things she 
would allow a guy do to her. At the end of this 
conversation, Defendant asked her if she would 
want to "hook up sometime?" The two then agreed 
that they would talk on the phone first. 
Later 
that 
same 
day, 
Defendant 
talked 
to 
ndblondie2003 in the Yahoo chat room again. 
Defendant asked "Can you and I get drunk this 
week?"After 
discussing 
what kind of liquor 
nodblondie2003 liked, she stated "we could hook 
up this week." 
The next day, West Fargo Police Dispatcher Brandi 
Gunderson posed as ndblondie2003 and called 
Defendant. They arranged to meet in the parking lot 
of the West Fargo Sunman store. Defendant stated 
that he would be driving a white Blazer with big 
headlights. When Defendant arrived in the Sunmart 
parking lot in the white Blazer, Officer Schmidt 
arrested him. 
ANALYSIS 
The grand jury indicted Defendant with luring a 
minor via the intemet, in violation of 18 U.S.C. § 
2422(b). At the time of the instant offense, that 
statute read: 
Whoever, using the mail or any facility or means of 
interstate or foreign commerce, or within the special 
maritime and territorial jurisdiction of the United 
States knowingly persuades, induces, entices, or 
coerces any individual who has not attained the age 
of 18 years, to engage in prostitution or any sexual 
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE&fn=_top&mt=... 
12/18/2007 
EFTA00191998

Page 2 of 4 
Not Reported in F.Supp.2d 
Not Reported in F.Supp.2d, 2003 WL 22118983 (D.N.D.) 
(Cite as: Not Reported in F.Supp.2d) 
activity for which any person can be charged with a 
criminal offense, or attempts to do so, shall be fined 
under this title and imprisoned not more than 15 
years, or both. 
18 U.S.C. § 2422(b)(1998).FN2
FN2. The statute was amended in April 
2003 
to add 
a 
minimum mandatory 
sentence of five years and increase the 
maximum term of imprisonment to thirty 
years. 18 U.S.C. § 2422(bg2003). 
I. Motion to Dismiss 
"Unless there is a stipulated record, or unless 
immunity issues are implicated, a pretrial motion to 
dismiss an indictment is not a pemiissible vehicle 
for addressing the sufftc ncy of the government's 
evidencc."United States 
DeLaurentis, 230 F.3 
659, 660-61 (3d Cir.2 
(citing United States
Knox. 396 U.S. 77, 83 n. 7 (1969)). There is no 
corollary in criminal cases to a motion for summary 
judgment pursuant to Rule 56 of the Federal Rules 
of Civil Procedure. Id. at 661.The government is 
entitled to present all of its evidence at trial and 
then have its sufficiency tested by a motion for 
acquittal pursuant to Rule 29 of the Federal Rules 
of Criminal Procedure. Id. 
*2 Defendant argues that the government lacks any 
proof on three of the essential elements of this 
crime. First, Defendant argues that he never 
attempted to persuade, induce, entice, or coerce 
ndblondie2003 into engaging in sexual activity. The 
evidence submitted to the Court demonstrates that 
shortly after finding out that ndblondie2003 was a 
sixteen-year-old female living in Fargo, Defendant 
asked if he was too old for her and then engaged in 
a discussion with her about sex acts and what kinds 
of sexual things she would do with a man. 
Following that discussion, Defendant asked her if 
she 
would like to hook up. 
Whether 
this 
conversation or other portions of the conversations 
FN3 Defendant had with ndblondie2003 prove that 
he attempted to persuade, induce, entice, or coerce 
her into engaging in sexual activity is for a jury to 
decide. 
Page 2 
FN3. Defendant appears to argue that the 
government could not use the subject 
mattcr of the telephone conversation to 
prove the charge in the indictment since it 
is not the intemet. Def.'s Br. Supp. Mot. 
Dismiss and for Bill of Particulars at 8. 
However, the statute includes the use of " 
the mail or any facility or means of 
interstate or foreign commerce."18 U.S.C. 
§ 2422(bX1998). The telephone is 
facility of interstate commerce. Kerbs
i
Fall River Indus., Inc.. 502 F. d 731, 7 
(10th Cir.1974); United States 
Giordano, 
No. 3:0ICR216, 2002 W 
32082891 
(D.Conn. July 29, 2002). 
Second, Defendant argues that there is no evidence 
of a substantial step to prove attempt. Defendant did 
agree to meet with ndblondie2003 in the Sunman 
parking lot in West Fargo, and he drove to that 
location. Whether this act, or any other evidence 
that the government intends to produce, constitutes 
a substantial step is for a jury to decide. 
Finally, Defendant argues that the government 
cannot prove that "any sexual activity for which [he 
could have been) charged with a criminal offense" 
was about to occur. See 18 U.S.C. § 2422(b). 
Defendant alleges that under Minnesota law, and 
the United States does not dispute this, it is not a 
crime for a sixteen-year-old to have consensual sex 
with someone who is eighteen or older. However, 
Defendant concedes that it is a crime in North 
Dakota. 
The United States argues that it does not have to 
prove that Defendant intended to have sex with 
ndblondie2003 in North Dakota in order to satisfy 
this final element of the statute. The phrase "any 
sexual act for which any person can be charged with 
a criminal offense" is 
description of the intent 
element. United States 
Kufrovich, 997 F.Supp. 
246, 256 (D.Conn.I99 . To satisfy this final 
i 
element, the government must prove two items: I) 
Defendant intended to engage in a sexual act with 
ndblondie2003 and 2) Defendant or ndblondie2003 
could have been charged with a criminal offense for 
that sexual act if it had occurred. See 18 U.S.C. § 
2422(3). 
O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
htips://web2.westlaw.corn/print/printstream.aspx?sv=Full&prfl=HTMLE&fn=_top&mt=... 
12/18/2007 
EFTA00191999

Page 3 of 4 
• 
Not Reported in F.Supp.2d 
Not Reported in F.Supp.2d, 2003 WL 22118983 (D.N.D.) 
(Cite as: Not Reported in F.Supp.2d) 
The United States cites Kufrovich for the basic 
principle that the judge instructs the jury on the law; 
therefore the judge will instruct the jury on whether 
a sexual act violates the law. 997 F.Supp. at 256. 
However, when factual issues will determine which 
1
law applies, those actual issues must be determined 
first, see Blome 
Aerospatiale Helicopter Corp., 
924 F.Supp. 805, 14 (D.Tex.1996), and the jury is 
the finder of fact. Assuming Defendant did intend to 
have sex with ndblondie2003, and did intend to 
have sex with her in Minnesota, then there is no " 
sexual act for which any person can be charged with 
a criminal offense" because a sixteen-year-old can 
have consensual sex with someone over the age of 
eighteen in Minnesota without either of them being 
charged with a criminal offense. The government 
will have to produce evidence that Defendant 
intended to 
engage in a 
sexual 
act 
with 
ndblondie2003 that he could be charged with if the 
sexual act had taken place in order to satisfy this 
final element. 18 U.S.C. § 2422(b). 
*3 
The 
government 
cites United States 
Brockdwff, 992 F.Supp. 22 (D.C.1997) and United 
States I Pelton, 578 F.2d 701 (8th Cir.1978) for 
analogous support of its argument that it does not 
have to prove that Defendant intended to have sex 
with a sixteen-year-old in North Dakota. Both of 
these cases involve statutes that make the intended 
behavior itself a federal crime. See Pelton, 578 F.2d 
at 712 (stating that 18 U.S.C. § 2421 prohibits 
transporting 
women 
for prostitution, so 
this 
prohibition is not "keyed to the legality or illegality 
of prostitution under the law of the state where the 
transportation ends"); Brockdorff, 992 F.Supp. at 23 
(quoting 
18 
U.S.C. & 
sect; 
2423(bX1997)) 
(making it illegal for a person to travel in interstate 
commerce for the purpose of engaging in any sexual 
act with someone under eighteen years of age). 
Since 18 U.S.C. § 2422(b) does not make it illegal 
for a minor to have sex with an adult, the 
government has to rely on some other law that 
makes that sexual activity illegal. 
Defendant argues that the government has no proof 
that he was going to have sex with ndblondie2003 
in North Dakota. The government will likely 
produce evidence at trial that ndblondie2003 told 
Defendant that she lived in North Dakota and that 
Page 3 
Defendant entered North Dakota to meet with 
ndblondie2003. Whether this evidence, or any other 
evidence that the government may provide at trial, 
demonstrates that Defendant planned on having sex 
with ndblondie2003 in North Dakota is for a jury to 
decide. 
All of Defendant's arguments go to the sufficiency 
of the evidence. Since it is for a jury to decide 
whether the government has proved its case beyond 
a reasonable doubt, this case is not subject to 
dismissal. See DeLaurentis, 230 F.3d at 660-61 
(citing Knox, 396 U.S. at 83 n. 7) (stating that a 
motion to dismiss is not the appropriate method for 
addressing the sufficiency of the evidence against a 
criminal defendant). 
II. Motion for a Bill of Particulars 
The decision to grant or deny a bill of particulars 
lies within th sound discretion of the trial court. 
United Stain I Buffington, 578 rd 213, 214 (8th 
Cir.1978) (citing United States 
Long, 449 F.2d 
288, 295 (8th Cir.1971)). A party must demonstrate 
good cause before a court will issue an order to 
compel or other order pertaining to discovery. See 
Fed.R.Crim.P. 16(dX1) (stating that, for good 
cause, a court may grant appropriate relief on 
discovery 
matters). 
When 
the 
indictment 
substantially follows the words of the statute, a 
id
court does not abuse its discretion when i 
enies a 
request for a bill of particulars. Bunn 
United 
States, 260 F.2d 313, 314 (8th Cir.1958). 
In this case, the indictment substantially follows the 
words of the statute and informs Defendant of the 
charges against him with sufficient particularity to 
allow him to prepare his defense. Defendant has 
failed to show good cause for an order to compel. 
DECISION 
Defendant's Motion to Dismiss is DENIED and 
Defendant's Motion for a Bill of Particulars is 
DENIED. 
*4 IT IS SO ORDERED. 
it 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE&fri=_top&mt=... 
12/18/2007 
EFTA00192000

Page 4 of 4 
Not Reported in F.Supp.2d 
Page 4 
Not Reported in F.Supp.2d, 2003 WL 22118983 (D.N.D.) 
(Cite as: Not Reported in F.Supp.2d) 
D.N.D.,2003. 
U.S. 
Patten 
Not Reported in F.Supp.2d, 2003 WL 22118983 
(D.N.D.) 
END OF DOCUMENT 
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
littps://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE&fn=_top&mt=... 
12/18/2007 
EFTA00192001

Page I of 27 
lAreStlaw. 
504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F.3d 737) 
H 
U.S. 
Sinerius 
C.A.9 (Mont.),2007. 
United States Court of Appeals,Ninth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Arthur Emil SINERIUS, Jr., Defendant-Appellant. 
No. 06-30327. 
Argued and Submitted March 9, 2007. 
Filed Sept 20, 2007. 
Background: Defendant was convicted in the 
United States District Court for the District of 
Montana, Charles C. Lovell, J., of receipt of child 
pornography and possession of child pornography, 
and he appealed his 180-month sentence. 
Holding: The Court of Appeals, O'Scannlain, 
Circuit Judge. held that defendant's prior conviction 
under Montana law for sexual assault constituted a 
conviction relating to sexual abuse, for purposes of 
increase of defendant's statutory mandatory minim-
um sentences. 
Affumed. 
West Hcadnotes 
III Obscenity 281 4 ,18.1 
281 Obscenity 
281k I 8 Trial 
281k18.1 k. In General. Most Cited Cases 
Under categorical approach for determining the 
character of a prior conviction, defendant's prior 
conviction under Montana law for sexual assault 
constituted a conviction relating to sexual abuse, 
for purposes of increase of defendant's statutory 
mandatory minimum sentences to 15 years for re-
ceipt of child pornography and ten years for posses-
sion of child pornography; all conduct criminalized 
by Montana statute of conviction, which prohibited 
Page 1 
knowingly subjecting another person to sexual con-
tact without consent, fell within ordinary, contem-
porary, and common meaning of term "sexual ab-
use," and even least egregious conduct covered by 
statute, ostensibly "consensual" contact between 
16-year-old offender and 13-year-old victim, cat-
egorically qualified as sexual abuse. 18 U.S.C.A. § 
2252A(b); MCA 45-5-502. 
121 Obscenity 281 e=18.1 
281 Obscenity 
281k18 Trial 
281k18.1 k. In General. Most Cited Cases 
For purposes of determination of whether defend-
ant's prior conviction under Montana law for sexual 
assault constituted a conviction relating to sexual 
abuse, for purposes of an increase of the defend-
ant's statutory mandatory minimum sentences to 15 
years for receipt of child pornography and ten years 
for possession of child pornography, court of ap-
peals was not required to define term "sexual ab-
use" by cross-reference to federal offense of sexual 
abuse, rather than by the ordinary, contemporary, 
and common meaning of the term. 18 U.S.C.A. §§ 
2242, 2252A(b); MCA 45-5.502. 
*738 Michael Donahoe, Senior Litigator, Federal 
Defenders of Montana, argued the cause for the de-
fendant-appellant, and filed briefs; Anthony R. 
Gallagher, Federal Defender, was on the briefs. 
Marcia Hurd, Assistant U.S. Attorney, Billings, 
MT, argued the cause for the plaintiff-appellee and 
filed a brief; William W. Mercer, U.S. Attorney, 
District of Montana, and Eric B. Wolf, Assistant 
U.S. Attorney, Billings, MT, were on the brief. 
Appeal from the United States District Court for the 
District of Montana; Charles C. Lovell, District 
Judge, Presiding. D.C. No. CR-05-00024-CCL. 
Before: 
B. 
FLETCHER, 
DIARMUID 
F. 
O'SCANNLAIN, and A. WALLACE TASHIMA, 
Circuit Judges. 
4:1) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/Printstream.aspx?sv=Full&prft=HTMLE&mt=FederalGov... 2/27/2008 
EFTA00192002

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F3d 737) 
O'SCANNLA1N, Circuit Judge: 
We are called upon to determine whether a fed-
eral defendant's prior conviction for "sexual as-
sault" under Montana state law triggers an en-
hanced penalty under the sentencing provisions ap-
plicable to his federal crimes. 
I 
In 2005, Arthur Emil Sinerius, Jr. was indicted 
by a federal grand jury for receipt of child porno-
graphy ("Count I") and possession of child porno-
graphy ("Count II"), in violation of 18 U.S.C. §§ 
2252A(aX2) and 2252A(aX5XB) respectively. Sin-
erius subsequently pled guilty to both counts, and 
also agreed to forfeiture of his computer pursuant to 
18 U.S.C. § 2253. The government agreed, pending 
the determinations of the presentence investigation 
report ("PSR"), to recommend a sentence at the low 
end of the advisory guideline range. 
The PSR determined that Sinerius's base of-
fense level was 22 and then added two levels be-
cause the material involved a prepubescent minor 
or a minor under the age of 12, U.S.S.G. § 
2G2.2(bX2); four levels because the offense in-
volved material that portrays sadistic or masochistic 
conduct•739 or other depictions of violence, 
U.S.S.G. § 2G2.2(bX4); two levels because the of-
fense involved the use of a computer, U.S.S.G. § 
2G2.2(bX6); and four levels because the offense in-
volved between 300 and 600 images, U.S.S.G. § 
2G2.2(bX7XC). The PSR then subtracted two levels 
because Sinerius's conduct was limited to the re-
ceipt of child pornography and he did not traffic in 
such material, U.S.S.G. § 2G2.2(bX1); and three 
levels for acceptance of responsibility, U.S.S.G. § 
3E1.1. Accordingly, based on Sinerius's total of-
fense level of 29 and Criminal History Category of 
II, the PSR calculated an advisory Guidelines range 
of 97 to 121 months. However, the PSR also de-
termined that Sinerius's' prior conviction for sexual 
assault, in violation of Mont.Code Ann. § 45-5-502 
(the "Montana sexual assault statute"), was a pre-
dicate offense "relating to aggravated sexual abuse, 
Page 2 of 27 
Page 2 
sexual abuse, or abusive sexual conduct involving a 
minor or ward," as defined by § 2252A(b). 18 
U.S.C. §§ 2252A(bX1),(2). The PSR thus con-
cluded that § 2252A(b) required enhanced mandat-
ory minimum sentences of 15 years for Count I and 
10 years for Count II." 
FNI. Section 2252A(bX I) sets forth the 
mandatory minimum sentence for Count I 
(receipt of child pornography under § 
2252A(aX2XB)), among other offenses. 
Section 2252(AXb)(2) sets forth the man-
datory minimum sentence for Count II 
(possession of child pornography under § 
2252A(a)(5XB)). Both provisions require 
an enhanced sentence when the defendant 
has been convicted of a state offense 
"relating to aggravated sexual abuse, sexu-
al abuse, or abusive conduct involving a 
minor or ward." §§ 2252A(bX 1),(2). Be-
cause 
the 
relevant 
text of both 
§§ 
2252A(b)(1) and 2252A(bX2) is identical, 
we treat the two provisions together for 
purposes of the issue raised by this appeal. 
At his change of plea hearing, Sinerius admit-
ted to his prior conviction and indicated that he 
agreed with the government's summary of the facts, 
including that "Sinerius is a registered sexual of-
fender, having been convicted in Montana state 
court in 1994 of sexually abusing a minor female 
child." " 
Sinerius objected to the PSR, however, 
arguing that his prior Montana conviction did not 
categorically qualify as a predicate offense for en-
hancement purposes. 
FN2. Sinerius was originally charged with 
"sexual intercourse without consent," in 
violation of Mont.Code Ann. § 45-5-503. 
The information states that Sinerius, then 
thirty-one years old, "knowingly had sexu-
al intercourse without consent with another 
person, to-wit: the defendant fondled the 
vaginal area of R.D., d/o/b 4-23-81, and in-
serted his fingers and his penis into her va-
gina when she was incapable of consent 
0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.asPx?sv=Full&Prft=HTMLE&mt=FederalGov... 2/27/2008 
EFTA00192003

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 Fid 737) 
due to her age." Subsequently, however, 
the Montana trial judge granted the state's 
motion in open court to amend the charge 
against Sinerius from "sexual intercourse 
without consent (felony)" to "sexual as-
sault (felony)," in violation of Mont.Code 
Ann. § 45-5-502. The amendment was 
made by a handwritten interlineation on 
the information, striking out the former 
charge and replacing it with the latter. At 
Sinerius's federal sentencing hearing, the 
federal 
prosecutor, 
who, 
coincidentally, 
had also served as the state district attor-
ney in the Montana court proceedings, 
stated that this amendment only changed 
the charged offense, not the underlying 
facts. No transcript of the state trial pro-
ceedings is available. 
After Sinerius pled guilty to "sexual assault 
(felony)," the Montana trial judge sentenced him to 
ten years imprisonment, all but 30 days suspended, 
placed him on probation for ten years, and ordered 
him to pay a fine, register as a sex offender, and un-
dergo treatment. 
At the sentencing hearing, the district court 
ruled that Sinerius's Montana conviction was a pre-
dicate offense that required the enhanced mandat-
ory minimum sentences provided by § 2252A(b) 
because it was an offense "relating to ... sexual ab-
use, or abusive sexual conduct involving a minor or 
ward." Relying on the prior conviction, the court 
sentenced Sinerius to •740 imprisonment of 180 
months for receipt of child pornography (under § 
2252A(bX1)), and 120 months for possession of 
child pornography (under § 2252A(b)(2)), to run 
concurrently. The court also sentenced Sinerius to 
supervised release for a term of life, and ordered 
him to participate in treatment and to pay an assess-
ment. 
Sinerius appeals the sentence. 
II 
Page 3 of 27 
Page 3 
[1] To determine whether Sinerius's conviction 
under the Montana sexual assault statute meets the 
definition of a predicate sex offense under § 
Jr
2252A(b), we 
on the familiar two-step test set 
forth in Taylor 
United States, 495 U.S. 575, 110 
S.Ct. 
43,
1 
1 
L.Ed.2d 607 (1990). See United 
States 
Baron-Medina, 187 F.3d 1144, 1147 (9th 
Cir.1999) (employing Taylor's categorical approach 
to interpret the phrase "sexual abuse of a minor"
8 U.S.C. § 1101(a)(43)); see also United States 
Romm, 
455 F.3d 990, 
1005 (9th Cir.2 
(recognizing the parties' agreement that Taylor's 
categorical approach applies to a sentence enhance-
ment under § 2252A(b)). 
First, we examine the definition of the predic-
le.se 
in the federal statute. See United States 
lis, 447 F.3d 1201, 1206 (9th Cir.2006). 
Section 2252A(b) imposes an enhanced sentence on 
a defendant "if such person has a prior conviction 
... under the laws of any State relating to aggrav-
ated sexual abuse, sexual abuse, or abusive sexual 
conduct involving a minor or ward." 18 U.S.C. § 
2252A(b)(1),(2) (emphasis added). Thus, the relev-
ant offenses under § 2252A(b) are those "relating to 
... aggravated sexual abuse, sexual abuse, or abus-
ive sexual conduct involving a minor or ward." See 
MSolis, 447 F.3d at 1206. 
Next, we look to the Montana sexual assault 
statute and compare its elements to the definition of 
the terms "aggravated sexual abuse," "sexual ab-
use," and "abusive sexual conduct involving a 
minor" under § 2252A(b). Wiz, 
447 F.3d at 
1206. Under this categorical approach, Sinerius's 
Montana conviction will qualify as a predicate sex 
offense only if the full range of conduct covered by 
the Montana statute falls within the meaning of 
those terms. Id. 
A 
Section 2252A(b) requires an enhanced sen-
tence if Sinerius's Montana conviction is as an of-
fense "relating to" either "aggravated sexual ab-
O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
hups://web2.westlaw.com/print/printstream.aspx?sv=Full&prit=HTMLE&mt=FederalGov... 2/27/2008 
EFTA00192004

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F.3d 737) 
use," "sexual abuse," or "abusive sexual conduct 
involving a minor." We first consider whether Sin-
erius's conviction is an offense "relating to ... sexu-
al abuse." 
Under the categorical approach, we follow our 
common practice in cases involving non-traditional 
offenses by defining the offense based on the 
"ordinary, contemporary, 
mmon meaning of 
the statutory words." See 
Solis, 447 F.3d at 
1206-07 (citation omitted) ( e ruing "sexual abuse 
of a minor" for purposes of the predicate offense 
under U.S.S.G. § 2L1.2). 
We define the term "sexual abuse" by coupling 
the dictionary definition of "abuse" with the com-
mon understanding of "sexual." See id. at 1207; 
Baron-Medina, 187 F.3d at 1146. First, in the con-
text of the Sentencing Guidelines, we have defined 
"abuse" to mean "misuse ... to use or treat so as to 
injure, hurt, or damage ... to commit recent 
as-
sault on." Id. at 1207; United States 
Pallares-
Galan, 359 F.3d 1088, 1100 (9th Cir.2004) 
(quoting Webster's Third New Intl Dictionary 8 (3d 
ed.1981)). We have explained that this definition 
"encompass(es) behavior that is harmful emotion-
ally and physically." 
Solis, 447 F.3d at 1207. 
Second, we *741 have given the term "sexual" its 
ordinary and commonsense meaning. See id. 
Equipped with this understanding of § 2252A(b)'s 
definition of a predicate offense, we next consider 
the Montana statute under which Sinerius was con-
victed. 
B 
Under the categorical approach, we look only 
to the fact of Sinerius's prior conviction and the ele-
ments of the Montana offense to determine whether 
§ 2252A(b)'s definition of "sexual abuse" covers 
the full scope the conduct prohibited by the 
Montana sexual assault statute. Id. at 1206. 
Page 4 of 27 
Page 4 
The Montana statute undeniably proscribes acts 
that are "sexual" in nature. Mont.Code Ann. § 
45-5-502. The statute prohibits knowingly subject-
ing "another person to any sexual contact without 
consent." Id. § 45-5-502(1). The relevant defini-
tional provision describes "sexual contact" as "any 
touching of the sexual or other intimate parts of the 
person of another for the purpose of arousing or 
gratifying the sexual desire of either party." Id. § 
45-2-101(60). In addition, the range of conduct the 
Montana statute proscribes is "abusive" because it 
necessarily involves physical "contact without con-
sent." Id. § 45-5-502(1) (emphasis added). The 
physical touching of another person's sexual or in-
timate parts, for the purposes of sexual arousal or 
gratification and without consent,iir to an 
"indecent assault on" that person. 
Solis. 447 
F.3d at 1207. 
Nevertheless, 
Sinerius 
maintains 
that 
the 
Montana statute is over-inclusive vis-a-vis the of-
fenses described in § 2252A(b) and, as a con-
sequence, that his conviction therefore cannot cat-
egorically qualify as a predicate offense. 
Under the categorical approach, even the least 
egregious conduct proscribed by the Montana stat-
ute
tngi6
must qualify as an offense "rela ' 
o ... sexual 
abuse." See id. at 1206-07; Valencia 
Gonzales, 
439 F.3d 1046, 1052 & n. 3 (9th Cir.2 
). If such 
conduct does not qualify, the Montana statute is 
over-inclusive on its face. 
The Montana statute provides that a victim less 
than 14 years old cannot consent to sexual contact 
if the offender's age exceeds his or her own by three 
or more years. Mont.Code Ann. § 45-5-502(5). 
Thus, one might consider the least egregious con-
duct proscribed by the Montana statute to involve 
ostensibly "consensual" sexual contact between a 
16-year-old offender and a 13-year-old victim, but 
for the fact that the statute negates the victim's abil-
ity to consent. Even so, we have previously con-
cluded this precise conduct constitutes sexual ab-
use. In Baron-Medina, we held that touching the 
body of a child under 14 years old with sexual in-
2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstream.aspx?sv=Full&Prft=HTMLE&mt=FecleralGov... 2/27/2008 
EFTA00192005

504 F.3d 737 
504 F.3d 737, 07 Cal. Daily Op. Serv. 11,330, 2007 Daily Journal D.A.R. 14,672 
(Cite as: 504 F.3d 737) 
tent, even when it is "innocently and warmly re-
ceived ... indisputably falls within the common, 
everyday meaning of the words 'sexual' and 
'minor' " and that such "use of young children for 
the gratification of sexual desires constitutes an ab-
use." 187 F.3d at 1147 (emphasis added); see also 
id. ("The use of young children as objects of sexual 
gratification is corrupt, improper, and contrary to 
good order. It constitutes maltreatment, no matter 
its form."(citations omitted) (internal quotation 
marks omitted)). 
As a consequence, even the least egregious 
conduct proscribed by the Montana statute, consen-
sual sexual contact by a 
16-year-old on a 
13-year-old 
victim, 
categorically 
qualifies 
as 
"sexual abuse." Further, because the statute re-
quires the victim to be under 14 years of age to 
render her consent ineffective, 
lusion is 
I 
decisions in 
lis*742 
ouir
so
consistent with o 
and United States 
Baza-Martinez, 
F.3d 1010 
(9th Cir.2006), holding that more expansive state 
statutes were not predicate offenses within the 
definition of the term "sexual abuse of a minor." 
In M
-Solis, we held that a conviction under 
a state statutory rape statute did not qualify as 
"sexual abuse of a minor" because the statute pro-
hibited "consensual penetration of a victim just un-
der 18 years of age by a 22-year-old perpetrator." 
447 F.3d at 1207. We concluded that this conduct 
did not categorically include the necessary physical 
or psychological injury required by the term 
"abuse," indicating that "prior case law-as well as 
common sense-suggest that, while consensual un-
derage sex may be harmful to a young teen, it may 
not be harmful o an older one." Id. at 1208 (citing 
United States I Melton. 344 F.3d 1021, 1028-29 
(9th Cir.2003)) (suggesting that only in the pres-
ence of certain aggravating factors, such as incest, 
will a sexual encounter between a 17 year old and 
an adult 
necessarily 
create 
a 
"situation of 
[psychological] dominance and control"). Simil-
arly, in Baza-Martinez, we concluded that a state 
statute prohibiting "indecent liberties with a child" 
Page 5 of 27 
Page 5 
did not qualify as "sexual abuse of a minor," be-
cause it prohibited a very broad range of conduct, 
including "mere words." 464 F.3d at 1016-17 ("All 
that is required is that at the time of the immoral, 
improper, or indecent liberty, the defendant must be 
in either the actual or constructive presence of the 
child."(internal quotation marks and citations omit-
ted)). 
In contrast to the statutes at issue in 
-Sol-
is and Baza-Martinez, the Montana sexua assault 
statute proscribes a narrower range of conduct, all 
of which necessarily involves "sexual abuse" under 
its ordinary and common meaning. 
2 
[2] Sinerius argues, however, that § 2252A(b) 
requires us to define the term "sexual abuse" by 
cross-reference to the federal offense of "sexual ab-
use" under 18 U.S.C. § 2242 rather than by the or-
dinary and conunon meaning of that phrase.'"' 
Section 2242 proscribes a narrower range of con-
duct than the Montana sexual assault statute. Spe-
cifically, Sinerius argues that "sexual abuse" under 
§ 2242 requires skin-to-skin contact, whereas 
"sexual assault" under the Montana statute only re-
quires "offensive touching of a intimate body part," 
which could include touching through clothing. 
Mont.Code Ann. § 45-2-101. Consequently, Sineri-
us contends that his conviction under the Montana 
statute cannot qualify, categorically, as a predicate 
offense "relating to ... sexual abuse" under § 
2252A(b). We disagree. 
FN3. Sinerius offers an identical argument 
with respect to the other terms in § 
2252A(b). 
He 
asks 
us 
to 
define 
"aggravated 
sexual 
abuse" 
by 
cross-
reference 
to 
the 
federal 
offense 
of 
"aggravated sexual abuse" under 18 U.S.C. 
§ 2241, and "abusive sexual conduct in-
volving a minor or ward" by cross-ref-
erence to the federal offenses of "sexual 
abuse of a minor or ward" under 18 U.S.C. 
2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
https://web2.westlaw.com/print/printstreartasPx?sv=Full&prft=HTMLE&mt=FederalGov... 2/27/2008 
EFTA00192006