Friday, November 14, 2014

Cell Phones, “Computers” and Sentencing Enhancement

After “a jury convicted [Arnold Maurice] Mathis of several child exploitation offenses” and the U.S. District Court Judge who had the case “sentenced him to a 480–month total term of imprisonment”, he appealed.  U.S. v. Mathis, 767 F.3d 1264 (U.S. Court of Appeals for the 11thCircuit 2014). He raised several issues on appeal, but this post only examines one of them:  the sentence the trial judge imposed on Mathis.
The Court of Appeals began its analysis of all the issues by explaining how the prosecution arose:
In 2004, Mathis, who was approximately 34 years old, approached Jarvis J. after a high school basketball game. Jarvis was 14 years old. . . . Mathis introduced himself as Pastor Maurice and gave Jarvis approximately $20 to purchase items at the concession stand. Mathis also told Jarvis he was willing to act as a father figure or mentor and he could assist Jarvis financially by helping him purchase shoes and clothes. Mathis gave Jarvis his cell phone number and told Jarvis to call him the next day.

At some point the following week, Jarvis met Mathis and Mathis gave him a pair of shoes, a shirt, and $100 to purchase a prepaid cell phone. Jarvis . . . purchased a cell phone, phone card, and minutes for the phone. Jarvis used the phone to talk to Mathis, and the two met a few days after Jarvis bought the phone. . . .  [A]fter going to a fast food restaurant, Mathis took Jarvis to Mathis's house where Mathis eventually goaded Jarvis into showing him his penis. Mathis then performed oral sex on Jarvis. Mathis told Jarvis not to tell anyone about the encounter and promised he would give Jarvis money and take care of him. Mathis took Jarvis to an ATM and gave him money.

Following the incident at Mathis's house, Jarvis used his cell phone to talk to Mathis on a daily basis. During his conversations with Jarvis, Mathis became more explicit and told Jarvis he wanted to engage in sexual conduct with him. Mathis eventually met Jarvis again and, after having a meal, Mathis took Jarvis to Mathis's house. Mathis performed oral sex on Jarvis and instructed him to perform anal sex on Mathis. Jarvis complied with Mathis's instructions.

Sometime thereafter, Mathis talked to Jarvis on the phone about traveling to Orlando to go bowling. When Mathis arrived to pick up Jarvis, Jarvis observed another man in the car with Mathis as well as a boy around Jarvis's own age. The group drove to Orlando, but instead of going bowling, they went to a diner and then a hotel. At the hotel, Mathis performed oral sex on Jarvis and had Jarvis perform anal sex on him while the other boy performed anal sex on the other man.

Subsequently, Mathis took Jarvis to a townhouse in Lakeland and tried to perform oral sex on him, but Jarvis resisted. Jarvis did not tell anyone about his experiences with Mathis until December 2011, nearly seven years later. At that time, Jarvis ran into the other man who had gone with him and Mathis to Orlando. After arguing with the man in a store, Jarvis talked to his pastor and then went to the Polk County Sheriff's Office. At the sheriff's office, Jarvis told Sergeant James Evans and Detective Zoe Vizcarrondo about his experiences with Mathis. Vizcarrondo asked Jarvis to make a recorded phone call to Mathis. During the call, Mathis acknowledged he had engaged in sexual conduct with Jarvis.

A few hours after Jarvis's recorded call with Mathis, law enforcement officers arrested Mathis. During the arrest, officers seized Mathis's cell phone, which was a Sprint smartphone.
U.S. v. Mathis, supra.  
A computer forensics examiner with the Polk County Sheriff’s Office was able to
retrieve contact lists, phone logs, and text messages. . . . in addition to multimedia messages. Based on information obtained from Mathis's cell phone, officers believed he had either persuaded or attempted to persuade two other minors -- Jerel A. and Harold J. -- to send him sexually explicit pictures of themselves.
U.S. v. Mathis, supra.  
A federal grand jury then “returned a second superseding indictment” that charged Mathis with
(1) knowingly employing, using, persuading, inducing, enticing, and coercing Jerel A., a minor, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, and attempting to do so, in violation of 18 U.S. Code § 2251(a) (Count One); (2) knowingly attempting to employ, use, persuade, induce, entice and coerce Harold J., a minor, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S. Code § 2251(a) (Count Two); (3) knowingly persuading, inducing, and enticing Jarvis J., a minor, to engage in sexual activity, and attempting to do so, in violation of 18 U.S. Code § 2422(b) (Count Three); and (4) committing the offenses in Counts One through Three while he was required to register as a sex offender under the laws of Florida, in violation of 18 U.S. Code § 2260A (Count Four).
U.S. v. Mathis, supra.  
As the opinion notes, the “jury ultimately convicted Mathis on each count.” U.S. v. Mathis, supra.  The court then began the process of determining his sentence under the U.S. Sentencing Guidelines:
In preparing Mathis's Presentence Investigation Report (PSI), the probation officer calculated a combined adjusted offense level of 41 as to Counts One through Three, based in part on a two-level enhancement under U.S.S.G. § 2G2.1(b)(6) for Mathis's use of a computer or interactive computer service to persuade, induce, entice, coerce, or facilitate the travel of a minor to engage in sexually explicit conduct. Mathis had a criminal history category of V pursuant to U.S.S.G. § 4B1.5(a)(2) because he had sustained a prior conviction for a sex offense.

Based on his combined adjusted offense level of 41 and criminal history category of V, Mathis's advisory guidelines range on Counts One through Three was 360 months to life imprisonment, with a consecutive 10–year statutory mandatory minimum term of imprisonment on Count Four. Mathis was also subject to statutorily enhanced penalties on Counts One and Two under 18 U.S.C. § 2251(e) based on his 1995 conviction. Mathis objected to the PSI's factual allegations as well as the enhancements under U.S.S.G. § 2G2.1(b)(6) and 18 U.S.C. § 2251(e).
U.S. v. Mathis, supra.  
At his sentencing hearing, Mathis
reiterated his objection to the § 2G2.1(b)(6) enhancement, arguing that he did not use `the computer components’ of his smartphone in committing the offenses in Counts One and Two, in which he was charged with persuading Jerel A. and attempting to persuade Harold J. to produce child pornography. Instead, Mathis simply sent text messages and requested pictures, which he could have done with a basic cell phone. The district court overruled the objection and found the two-level enhancement applied because Mathis used a smartphone which had Internet and email capabilities and, further, Mathis sent and received multimedia messages.
U.S. v. Mathis, supra.  
On appeal, Mathis challenged his 480-month sentence, claiming the judge erred
by applying a two-level enhancement under U.S.S.G. § 2G2.1(b)(6), which applies if the defendant, for the purpose of producing sexually explicit material, used `a computer or an interactive computer service to . . . persuade, induce, entice,  coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct.’ According to Mathis, the enhancement applies only when a defendant used the Internet in the commission of the offense and not simply because a phone with Internet capabilities was used. We disagree.
U.S. v. Mathis, supra.  
The Court of Appeals began its analysis of the issue by noting § 2G2.1(b)(6) states that
[i]f, for the purpose of producing sexually explicit material or for the purpose of transmitting such material live, the offense involved . . .  the use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct, or to otherwise solicit participation by a minor in such conduct; or (ii) solicit participation with a minor in sexually explicit conduct, increase by 2 levels.
U.S. v. Mathis, supra.  
The court went on to explain that the U.S. Sentencing Guidelines commentary
instructs that the word `computer’ has `the meaning given that term in 18 U.S. Code § 1030(e)(1).’  U.S.S.G. § 2G2.1 cmt. (n.1). 18 U.S. Code § 1030(e)(1), in turn, defines a computer as:

`an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.’
U.S. v. Mathis, supra (quoting 18 U.S. Code § 1030(e)(1)).
Next, the Court of Appeals began its analysis of  Mathis’ argument:
It is an issue of first impression in this Circuit whether a cell phone is a `computer’ within the meaning of § 1030(e)(1). The [U.S. Court of Appeals for the 8th Circuit], however, has decided the issue. See U.S. v. Kramer, 631 F.3d 900 (2011). As that court has noted, the language of § 1030(e)(1) is broad and encompasses any device that uses a data processor. U.S. v. Kramer, supra.

We agree with the 8th Circuit's observation that `each time an electronic processor performs any task -- from powering on, to receiving keypad input, to displaying information -- it performs logical, arithmetic, or storage functions. These functions are the essence of its operation.’ U.S. v. Kramer, supra. Nothing in the statutory definition of a computer requires that the device have a connection to the Internet or Internet capabilities. U.S. v. Kramer, supra.

We will not rewrite the statutory definition to exclude Mathis's use of a smartphone to call and send text messages to his minor victims -- activities that undoubtedly employed an electronic or high speed data processing device performing logical, arithmetic, and storage functions. The 7th Circuit has explained in discussing the scope of § 1030, `[a]s more devices come to have built-in intelligence, the effective scope of the statute grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.’ U.S. v. Mitra, 405 F.3d 492 (U.S. Court of Appeals for the 7th Circuit 2005). 

We therefore hold that a defendant's use of a cell phone to call and send text messages constitutes the use of a computer, as that term is defined in 18 U.S. Code § 1030(e)(1), and warrants imposition of an enhancement under U.S.S.G. § 2G2.1(b)(6).
U.S. v. Mathis, supra. The court therefore affirmed Mathis’ convictions and sentences. U.S. v. Mathis, supra. 

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