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3 The district court acknowledged the absence of a real victim, but stated that in cases where there is no real victim, the court should focus on the defendant's conduct to determine if he exercised undue influence.4 Accordingly, the district court applied the enhancement.5 On appeal, the Court of Appeals for the Sixth Circuit held, reversed.6 section 2A3.2(b)(2)(B) of the United States Sentencing Guidelines is not applicable in cases in which the victim is an undercover agent representing himself to be a child under the age of sixteen.
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Criminal Law-United States. V. Chriswell: The Sixth Circuit Holds Sentence Enhancements for Unduly Influencing a Minor to Engage in Sexual Conduct Inapplicable When the 'Victim' Is an Undercover Officer
In 2003, a jury convicted James Randy Chriswell ("Chriswell") on one count of "attempting to persuade a minor to engage in sexual activity using the internet," in violation of 18 U.S.C. § 2422(b), and on one count of "traveling in interstate commerce for the purpose of engaging in sexual activity with a minor," in violation of 18 U.S.C. § 2423(b).1 Chriswell's conviction stemmed from his use of the internet to enter a virtual chat room and solicit sex from a federal agent whom Chriswell thought was a fourteen-year-old girl.2
After the conviction, the government requested that the district court apply a federal sentencing guideline that provided a twolevel sentence enhancement in cases where the defendant "unduly influenced the victim to engage in prohibited sexual conduct."3 The district court acknowledged the absence of a "real victim," but stated that in cases "where there is no real victim, the court should focus on the defendant's conduct" to determine if he exercised undue influence.4 Accordingly, the district court applied the enhancement.5 On appeal, the Court of Appeals for the Sixth Circuit held, reversed.6 section 2A3.2(b)(2)(B) of the United States Sentencing Guidelines is not applicable in cases in which the victim is an undercover agent representing himself to be a child under the age of sixteen. United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005). The primary basis of the Sixth Circuit's holding was that the plain language of subsection (b)(2)(B) precluded its availability in this case because "[a]n undercover law enforcement officer who is not at all persuaded... cannot be 'unduly influenced.'"7The following analysis begins with a brief history of the United States Sentencing Commission ("Sentencing Commission" or "Commission").8 It continues with a structural examination of section 2A3.2(b)(2)(B) and the Commission's intent in promulgating and amending it.9 The analysis then provides a review of the conflicting case law relevant to the issue presented in Chriswell, followed by a detailing of the Chriswell court's approach.10 Based on this examination of the guideline and review of the case law, the reader will gain a more thorough understanding of the central issue which concerned the Chriswell court and will be introduced to a suggestion for a refined approach to that issue.11I. HISTORY OF RELEVANT case LAW AND STATUTORY DEVELOPMENTSA. A Brief History of the United States Sentencing CommissionThe Sentencing Reform Act provisions o...See the full content of this document
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