Opinion
Case No. 2:03CR747DAK
November 3, 2003
ORDER
This matter is before the court on Defendant Jonathan James Munro's Motion to Dismiss Count II of the Indictment, which charges a violation of 18 U.S.C. § 924(c). The court held a hearing on the matter on October 20, 2003. At the hearing, Plaintiff United States of America was represented by Michele M. Christiansen, and Defendant was present and represented by W. Andrew McCullough. After carefully considering the memoranda submitted by the parties on this issue as well as the law and facts relating to this matter, and now being fully advised, the court renders the following Order.
Defendant began communicating over the internet with "shante 13101" and suggested that a meeting take place so that he could perform oral sex on the 13-year-old girl. However, shante13101 was an undercover agent. When Defendant arrived for the meeting, Defendant was carrying a firearm. Defendant was arrested and charged with a violation of 18 U.S.C. § 2422(b), which states:
Whoever, using . . . interstate [means or commerce], knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempt to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
Defendant was further charged with violating 18 U.S.C. § 924(c) for carrying a firearm in connection with the underlying crime of violence. Pursuant to 18 U.S.C. § 924(c), "any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm" violates the law.
A "crime of violence" is defined in this section as "an offense that is a felony and — (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or: (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," 18 U.S.C. § 924(c)(3). Therefore, in order to allege a violation of Section 924(c) it must first be determined that the underlying offense is a crime of violence.
Defendant moves to dismiss Count II of the Indictment based on his contention that using a facility of interstate commerce to entice or induce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) is not a crime of violence. The Tenth Circuit has not specifically addressed this issue. In a 1999 case, the Tenth Circuit declined to rule on this issue because the defendant had failed to object below and preserve the issue for appeal. United States v. Johnson, 183 F.3d 1175 (10th Cir. 1999). The court noted that the issue had not been previously addressed in this circuit and had not been addressed by sister circuits. The parties both acknowledge that since Johnson there has been no case law specifically finding Section 2242(b) to be a crime of violence.
Defendant relies upon United States v. Champion, 248 F.3d 502 (6th Cir. 2001), in which the defendant appealed a sentence applying Section 4B1.1 of the Sentencing Guidelines to four counts of an Indictment, including a violation of Section 2422(b). In Champion, there was no suggestion or argument that a violation of Section 2422(b) was a crime of violence. Rather, the court held that a violation of one of the other counts of the Indictment, under 18 U.S.C. § 2251 (a), was a crime of violence because "it presents serious potential risk of physical injury," Although the court made no such analysis for the Section 2422(b) count, this court does not find it persuasive that such an analysis was necessary or determinative of whether Section 2422(b) is a crime of violence.
Despite the lack of explicit case law on the issue, the government contends that there is ample authority for finding that a violation of 18 U.S.C. § 2422(b) is an underlying crime of violence to support a violation of 18 U.S.C. § 924(c), The Sixth Circuit determined in an unpublished case that a violation of 18 U.S.C. § 2422(a) is a crime of violence for purposes of determining whether the defendant was a career offender pursuant to United States Sentencing Guideline Section 4B1.1, United States v. Smith, 2001 WL 1176422 (6th Cir. Sept. 25, 2001). Although the definition of a "crime of violence" under the Sentencing Guidelines is not identical to 18 U.S.C. § 924(c)(3), the Tenth Circuit has previously acknowledged that there is no significant difference between the statutory definitions and the Guidelines definition and the analysis under each is the same. United States v. Vigil, 334 F.3d 1215, 1223 (10th Cir. 2003).
The government also relies on other circuits holdings that offenses similar to Section 2422(b) are crimes of violence. In United States v. Butler, 92 F.3d 960, 963-64 (9th Cir. 1996), the Ninth Circuit held that a violation of 18 U.S.C. § 2423(b) — interstate travel with intent to engage in a sexual act with a juvenile — is a crime of violence. The court also noted that due to its dangerous nature, an attempt is treated the same as a completed act. Id. Also, in United States v. Niece, 1993 WL 424960 (6th Cir. Oct. 19, 1993) (unpublished opinion), the defendant was convicted of 18 U.S.C. § 2423 at trial and acquitted of Section 924(c).
Both parties also argue that penalties for Section 2422(b) under the Sentencing Guidelines support their positions. Defendant argues that the Sentencing Guidelines supports his position because it sets a base offense level for a Section 2422(b) violation at level 14 which is substantially lower than other clearly established crimes of violence. The government notes that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act") significantly increased the penalties for a violation of Section 2422(b) to include a minimum mandatory sentence of five years and a maximum penalty of thirty years. The court does not find the penalties imposed by the Sentencing Guidelines to be particularly persuasive in relation to its determination of whether Section 2422(b) is a crime of violence.
More significantly, Congress has explicitly recognized that Chapter 117 offenses are crimes of violence for purposes of pretrial detention in passing the Protection of Children from Sexual Predators Act in 1998 and included violations of Chapter 117 in 18 ILS.C. Section 3156(a)(4)(C). In addition, the Tenth Circuit has repeatedly recognized that sexual crimes against children, even attempted crimes, are inherently offenses that involve a substantial risk that physical force will be used against the child. Beginning in 1993, in United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993), the Tenth Circuit held that for purposes of 18 U.S.C. § 16, the attempted sexual abuse of a child is considered a crime of violence. The court recognized that "[a] common sense view of the sexual abuse statute, in combination with the legal determination that children are incapable of consent, suggests that when an older person attempts to sexually touch a child under the age of fourteen, there is always a substantial risk that physical force will be used to ensure the child's compliance." Id. In United States v. Vigil, 334 F.3d 1215 (10th Cir. 2003), the court determined that what is important in finding a particular offense a crime of violence is the possibility of risk of force or injury inherent in the offense. The court explained that "[t]he statute speaks in terms of probability — a "risk" — not certainty. "Risk is by definition probable not certain; hence potential rather than actual.' . . . [T]he possibility that a crime may be completed without injury is irrelevant to the determination of whether it constitutes a crime of violence." Id. at 1223 (citation omitted).
Therefore, under Vigil, it is unimportant whether the risk ultimately causes actual harm — it is enough that the risk of harm is present. Under the law, attempted crimes are treated the same as completed acts. The government asserts that the court must look at the full nature of the underlying crime. The alleged violation of Section 2422(b) in this case involves a defendant who arranged a meeting with an alleged 13-year-old girl and arrived at the meeting with a firearm. Defendant has not refuted that such actions occurred, In viewing the full extent of the conduct involved in this case, the court concludes that the alleged violation of Section 2422(b) constitutes a crime of violence for purposes of supporting the government's charging of a Section 924(c) violation.
CONCLUSION
Based upon the above reasoning, Defendant's Motion to Dismiss Count II of the Indictment is DENIED.