Sunday, January 29, 2012

Land of Enhancements

United States v. Watkins, No. 10-2971-cr (2d Cir. January 26, 2012) (Miner, McLaughlin, Pooler, CJJ)

Anthony Watkins was a 48-year-old homeless career criminal who lived in a baseball dugout in Schenectady, New York. Using a computer from the local public library, and posing as a 38-year-old, he began an on-line relationship with a 15-year-old girl who lived in Connecticut. Eventually he persuaded her to meet, and drove from Schenectady to her home; she sneaked out of her house and had sex with him in the car. Later that night, she ran away with him. He drove her back to New York and they spent the weekend in Schenectady, where they continued to have sexual contact. The girl called her parents from there, and eventually the police, acting on a tip, found them and arrested Watkins.

Watkins pled guilty to one count of transporting a minor in interstate commerce with intent to engage in criminal sexual activity. This appeal concerns his 233-month, top-of-the-range sentence.

Specifically, Watkins challenged three two-point Guideline enhancements. The court affirmed two of them easily - the § 2G1.3(b)(4)(A) enhancement for “commission of a sex act or sexual contact” and the § (b)(3)(A) enhancement for use of a computer to entice a minor.

However, Watkins' challenge the § (b)(2) enhancement for misrepresentation of identity resulted in a split decision and an interesting debate about the appellate court's role. The majority affirmed the enhancement, while Judge Pooler dissented on the ground that the lower court’s findings were inadequate.

The §(b)(2) enhancement applies if either (A) there was a “knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct” or (B) a participant “otherwise unduly influenced a minor” to do so. For § (b)(2)(A), the Guideline specifies that lying about one’s age can constitute a misrepresentation of identity, and for § (b)(2)(B), it creates a rebuttable presumption of undue influence if the age difference exceeds ten years.

The majority found that either theory would apply here. The district court did not make specific findings on the enhancement, but it did adopt the presentence report, which had concluded that Watkins “likely” held himself out as ten years younger “in order to persuade [the girl] into having sexual relations with him, presumably in belief that if the age difference were not as great, she would be more likely to engage in such conduct.” The majority found ample record support for the PSR's finding: Watkins’ primary objective in communicating with the girl was to induce her to have sex with him, and in some of his communications with her he tried to reassure her that a 20-year age difference was “common for couples.”

The majority also concluded, in dicta, that § (b)(2)(B) would apply as well. It rejected Watkins’ claim that the girl’s seeming eagerness to participate rebutted the presumption of undue influence, seemingly as a matter of law. And, apart from the age difference, the majority also found evidence of undue influence in Watkins’ “numerous instances of manipulative behavior,” such as picking up the girl at home, giving her gifts, meals and clothing, disparaging her age-appropriate boyfriend, and lying about his own personal circumstances.

Judge Pooler, in dissent, had a different view of the record. To her, the district court had simply concluded that the enhancement applied without making specific findings that Watkins’ conduct qualified. Adopting the presentence report only excuses a court from making specific findings if the findings in the PSR are “adequate to support the sentence.”

Here, with respect to the § (b)(2)(A) misrepresentation theory, the PSR found only that “it is likely” that Watkins’ lie about his age was intended to persuade the victim, “presumably in belief” that this would make her consent more readily. To Judge Pooler, this finding - that Watkins “probably qualified” for the sentencing enhancement - “is no finding at all in this context.” She also pointed out that the facts that the majority cited in upholding the enhancement were its own findings, not findings made, or relied upon, by the district judge.

As for the § (b)(2)(B) rebuttable presumption, Judge Pooler noted that, even though Watkins had objected and argued that record evidence rebutted the presumption, the district court “made no effort to weigh the evidence and determine if Watkins had rebutted the presumption of undue influence.” Instead, the district court merely adopted the PSR, which had noted only that Watkins was more than ten years older than the girl and that a 15-year-old cannot legally consent. To Judge Pooler, adopting this, without more, led to a “mandatory application of the enhancement” that was “wholly unsupported by” the Guideline or its commentary, both of which require particularized findings. She again faulted the majority for making the findings that the district court was supposed to - but did not - make.

Judge Pooler closed by reminding: “We review a district court’s decision for errors; we do not fix its mistakes.”

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