Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding D.C. Nos. 1:06-cr-00085-RFC & 1:07-cr-00101-RFC MARK.
The opinion of the court was delivered by: Paez, Circuit Judge
Argued and Submitted February 3, 2009 -- Portland, Oregon
Before: Richard A. Paez and Johnnie B. Rawlinson, Circuit Judges, and Bruce S. Jenkins,*fn1 District Judge.
Appellant Mark Andrew Christensen (Christensen) was convicted and sentenced to 210 months' imprisonment for enticement of a minor to engage in sexual activity and obstruction of justice for failing to appear at trial. On appeal, Christensen initially asserted that the district court erred in applying a two-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2G1.3(b)(2)(B) (2005) for unduly influencing a minor to engage in prohibited sexual conduct. Christensen relied on precedent from the Sixth and Seventh Circuits to argue that the enhancement should not apply where the "minor" is actually an undercover officer posing as a minor. See United States v. Chriswell, 401 F.3d 459, 469 (6th Cir. 2005); United States v. Mitchell, 353 F.3d 552, 562 (7th Cir. 2003). In doing so, he argued that we should reject the contrary view of the Eleventh Circuit in United States v. Vance, 494 F.3d 985, 996 (11th Cir. 2007).
After the case was submitted, the United States Sentencing Commission (the "Commission") amended the Commentary to § 2G1.3(b)(2)(B) such that it now precisely reflects Chris-tensen's argument: namely, that § 2G1.3(b)(2)(B)'s enhancement should not be applied where the "minor" is actually an undercover officer. Christensen argues that this amendment to the Guidelines should be applied retroactively to his sentencing, and that we should thus find that the district court erred in applying the two-level enhancement. He also challenges the district court's failure to comply with Application Note 3 to U.S.S.G. § 2J1.6 in determining the Guidelines range for the multiple counts of conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and because we agree that the amendment to § 2G1.3(b)(2)(B) should apply retroactively to Christensen's sentencing, we reverse and remand for resentencing.
Between January and June, 2006, using the screenname "hornyguy59405," Christensen participated in several online instant messaging chats with an individual posing as a female under the age of sixteen. That individual was actually Special Agent Dan Vierthaler (Vierthaler) of the Billings, Montana Office of the Federal Bureau of Investigation (FBI).*fn2
During these online conversations, Christensen expressed the desire to have sex with the fictitious minor. On at least two occasions, Christensen sent her several photographs, including images of an adult male's penis. Christensen also expressed interest in having sex with the fictitious minor's friend, whom he also understood to be a female under the age of sixteen.
Christensen informed the fictitious minor that he had a truck in which she could listen to music and asked if she would be willing to have sex with him there. He also offered her money to have sex with him, and more money if she found someone her age in the Great Falls area to have sex with him as well.
Christensen subsequently contacted the fictitious minor to arrange a meeting to have sex. When Christensen arrived to meet the fictitious minor, he was arrested by law enforcement agents. Christensen subsequently confirmed that "hornyguy59405" was his screenname, and admitted traveling from Great Falls to Billings to have sex with the fictitious minor. Christensen was indicted for coercion and enticement of an individual under the age of eighteen to engage in sexual activity in violation of 18 U.S.C. § 2422(b). Christensen was also indicted for failing to appear for trial, in violation of 18 U.S.C. § 3146. Investigation revealed that Christensen had left Montana with a trailer that he bought several weeks before the scheduled trial.
Christensen pled guilty to both charges. The court sentenced Christensen to 186 months' imprisonment on the enticement count, and 24 months' consecutive imprisonment on the failure to appear count, totaling 210 months' ...