United States v. Lay (2009)

Furthermore, and in addition to the "degree of undue influence" that can be presumed given the substantial age disparity between Watkins and Doe, see U.S.S.G. § 2G1.3(b)(2), Application Note 3(B), the evidence of record supports a finding of "undue influence," given Watkins' numerous instances of "manipulative behavior." See Lay, 583 F.3d at 446 ("[T]he extent to which [a] defendant engaged in manipulative behavior . . . bear[s] on the question of whether the defendant has r…

See United States v. Reid, 751 F.3d 763, 768 (6th Cir.2014) (“It makes no difference that J.H. ‘was not handcuffed to a bed’ or ‘kidnapped off the street.’ The undue-influence enhancement ‘is not limited to force, fraud, or coercion.’ It also reaches ‘manipulating’ and ‘preying upon’ a vulnerable victim — just what we have here.” (internal citations omitted)); United States v. Watkins, 667 F.3d 254, 265 (2d Cir.2012) (affirming finding of undue influence, and observing “that…

"Subsection (B), which applies when the defendant entices ‘a person’ to engage in illegal sexual conduct with the minor, does not apply without three people — the defendant, the minor, and the third person who is being enticed." United States v. Lay, 583 F.3d 436, 448 (6th Cir.2009) (Merritt, J„ dissenting in part) (emphasis added).

See id. at 51 , 128 S.Ct. 586 ; United States v. Lay, 583 F.3d 436, 449 (6th Cir.2009).

This commentary is “authoritative.” United States v. Lay, 583 F.3d 436, 446 (6th Cir. 2009) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).

Cf. Lay, 583 F.3d at 446 (distinguishing Myers, and explaining that “[w]here evidence could be construed both for and against an argument that the minor was not influenced, the appellate court [should] defe[r] to the district court’s factual findings on the question, as we do in this case”).

In United States v. Lay, 583 F.3d 436, 440 (6th Cir.2009), the defendant pled guilty to traveling in interstate commerce with the intent to engage in sexual activity with a minor, in violation of 18 U.S.C. § 2423 (b), a crime no more serious than Zobel’s. 3 Nonetheless, the district court imposed a condition that barred the defendant from “hav[ing] any contact with any person under the age of 18, unless his or her parent or legal guardian is present or [the defendant] notifi…

Here, the district court “did not ignore the factors [Lafarga] complains did not receive enough emphasis; it merely weighed them against the other listed factors and sentenced [Lafarga] accordingly.” United States v. Lay, 583 F.3d 436, 450 (6th Cir. 2009).

Love, 593 F.3d at 11-13 ; Sullivan, 451 F.3d at 892-896 ; United States v. Bender, 566 F.3d 748, 751-52 (8th Cir.2009); United States v. Lay, 583 F.3d 436, 449-50 (6th Cir.2009); United States v. Thielemann, 575 F.3d 265, 278 (3rd Cir.2009); United States v. Alvarez, *639 478 F.3d 864, 866-68 (8th Cir.2007); United States v. Johnson, 446 F.3d 272 (2nd Cir.2006); United States v. Crandon, 173 F.3d 122, 125 (3rd Cir.1999).

Those purposes are “to improve the odds of a successful transition from the prison to liberty,” Johnson v. United States, 529 U.S. 694 , 708–09 (2000), promote rehabilitation, and protect the public, United States v. Lay, 583 F.3d 436, 450 (6th Cir. 2009).

United States v. Lay, 583 F.3d 436, 449 (6th Cir. 2009).

Supervised release serves “dual goals”: (1) “the rehabilitation of the defendant,” and (2) “the protection of the public.” United States v. Lay, 583 F.3d 436, 450 (6th Cir. 2009) (quoting United States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992)).

Thus, the enhancement “does not apply without three people—the defendant, the minor, and the third person who is being enticed.” United States v. Lay, 583 F.3d 436, 448 (6th Cir. 2009).

But the fact that a “victim traveled freely with [the] defendant” does not rebut the presumption that the undue influence enhancement applies, United States v. Hagen, 641 F.3d 268, 271 (8th Cir. 2011), and the enhancement may be upheld based on a “manipulative adult’s building a relationship with a minor for the purpose of eventual sexual activity,” id. (quoting United States v. Lay, 583 F.3d 436, 445 (6th Cir. 2009)); see also United States v. Hornbuckle, 784 F.3d 549, 556 …

Houston, 857 F.3d at 435 ; - 38 - see United States v. Lay, 583 F.3d 436, 445 (6th Cir. 2009) (upholding the enhancement when the "facts [were] consistent with a manipulative adult's building a relationship with a minor for the purpose of eventual sexual activity").

And we recognized the difficulty that arises when a defendant contests a sentencing enhancement but wants to avoid “jeopardizing credit for acceptance of responsibility.” United States v. Lay, 583 F.3d 436, 449 (6th Cir. 2009) (recognizing that “[c]ertainly, the position of a defendant who must testify in order to contest an improper enhancement requires the treading of a fine line”).

Even if a defendant pleads guilty, “constantly attempting to mischaracterize that conduct, ‘spin’ it, so to speak, and minimize the defendant’s responsibility will support a finding that a defendant has not accepted responsibility.” United States v. Lay, 583 F.3d 436, 449 (6th Cir. 2009) (alterations and quotation marks omitted).

See, e.g., United States v. Heredia-Pieto, 742 F. App’x 962 , 967 (6th Cir. 2018) (“[R]elevant precedent . . . consistently affirms denials of acceptance-of-responsibility reductions when the 6 Case No. 18-6193, United States v. Smith defendant falsely denied the [relevant] conduct.”) (alterations in original) (collecting cases); United States v. Lay, 583 F.3d 436, 448 (6th Cir. 2009) (“The district court’s denial of the reduction for acceptance of responsibility was not err…

See 18 U.S.C. § 2423 (b); United States v. Lay, 583 F.3d 436, 440 (6th Cir. 2009).

Indeed, “relevant precedent . . . consistently affirms denials of acceptance-of- responsibility reductions when the defendant falsely denies the [relevant] conduct.” Keys, 359 F. App'x 585, 588 (6th Cir. 2009) (citing United States v. Lay, 583 F.3d 436, 448-49 (6th Cir. 2009); United States v. Maye, 582 F.3d 622, 625-26 (6th Cir. 2009)).

Allen argues that the enhancement is nonetheless inappropriate because the district judge’s ruling did not include a finding of the “specific individuals who were affected.” Reviewing this issue under the Gall standard for procedural reasonableness, we find that it was not an abuse of discretion for the district judge to find, by a preponderance of the evidence, thaf Allen substantially endangered the solvency or financial security of at least 100 victims. c.Double counting …

A reviewing court “may not reverse a finding of fact ‘simply because [it] would have decided the case differently,’ but must affirm unless ‘left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Lay, 583 F.3d 436, 446 (6th Cir. 2009) (quoting Easley v. Cromartie, 532 U.S. 234 , 242, 121 S.Ct. 1452 , 149 L.Ed.2d 430 (2001)).

It is necessary that the record contain “[s]ome evidence that the minor was in fact influenced,” which may include evidence that the victim’s “particular troubled characteristics gave [defendant] a vulnerable victim to influence with his manipulative tactics.” United States v. Lay, 583 F.3d 436, 446 (6th Cir. 2009).

Though the sentencing guidelines are no longer binding on district courts, United States v. Booker, 543 U.S. 220, 245 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the Supreme Court has instructed courts to give “respectful consideration” to the guidelines, the commentary, and relevant policy statements, see Pepper v. United States, 562 U.S. 476, 501 , 131 S.Ct. 1229 , 179 L.Ed.2d 196 (2011); see also United States v. Douglas, 634 F.3d 852, 862 (6th Cir. 2011) (“[Cjommentary in …

United States v. Lay, 583 F.3d 436, 442 (6th Cir. 2009).

Cf. United States v. Cramer, 777 F.3d 597, 602 (2d Cir.2015) (holding that sentencing enhancement for use of a computer to entice a minor to engage in prohibited sexual conduct under U.S.S.G. § 2G1.3(b)(3) is proper even where the “enticement itself does not take place using a computer”); United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (holding that § 2G1.3(b)(3) sentencing enhancement “may be applied even if the defendant did not send specific sexual requests by comp…

Such double counting occurs when “precisely the same aspect of the defendant’s conduct is factored into his sentence in two separate ways.” United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (quoting United States v. Farrow, 198 F.3d 179,193 (6th Cir.1999)) (quotation marks and modifications omitted).

As the Sixth Circuit has explained, “[t]o allow a predator to use a computer to develop relationships with minor victims, so long as the ultimate consummation is first proposed through offline communication, would not serve the purpose of the enhancement.” United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009); see also United States v. Royal, 442 Fed.Appx. 794, 798-99 (4th Cir.2011) (unpublished per curiam).

Cf. United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (explaining that the term “entice” as used in U.S.S.G. § 2G1.3(b)(3) “does not require crude specification of intent”).

See United States v. Watkins, 667 F.3d 254, 265 (2d Cir.2012); United States v. Hagen, 641 F.3d 268, 270-71 (8th Cir.2011); United States v. Miller, 601 F.3d 734, 737 (7th Cir.2010); United States v. Lay, 583 F.3d 436, 445-46 (6th Cir.2009).

In the second, by contrast, Subsection 3(B) involves the use of a computer to persuade, solicit, or entice a third party “john” to engage in prohibited sexual conduct with the minor. “ ‘Subsection [3](B), which applies when the defendant entices ‘a person’ to engage in illegal sexual conduct with the minor, does not apply without three people — the defendant, the minor, and the third person who is being enticed.’ ” United States v. Murphy, 530 Fed.Appx. 522 , 524 n. 1 (6th C…

Cf. United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (explaining that the "enhancement may be applied even if the defendant did not send specific sexual requests by computer").

Such double counting occurs when “precisely the same aspect of the defendant’s conduct is factored into his sentence in two separate ways.” United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th Cir.1999)) (quotation marks and modifications omitted).

Id. at 449 (citation omitted).

Given the "victim-focused inquiry” the Guidelines call for, United States v. Lay, 583 F.3d 436, 446 (6th Cir.2009) (internal quotation marks omitted), we have our doubts as to whether Kupetsky’s mental limitations defeated the presumption under the circumstances of this case.

Thus, “ ‘where a condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public, it must be upheld.’ ” United States v. Lay, 583 F.3d 436, 450 (6th Cir.2009) (quoting United States *765 v. Bortels, 962 F.2d 558, 560 (6th Cir.1992)).

See, e.g., United States v. Love, 593 F.3d 1, 5, 12 (D.C.Cir.2010) (affirming lifetime ban); United States v. Lay, 583 F.3d 436, 445 (6th Cir.2009) (affirming ban during 20-year supervised release period); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007) (affirming lifetime ban). 85 .

“Regardless of what the members of this panel might have done had they been required to pronounce sentence on [Bell], they cannot overturn the district court’s factual findings unless clearly erroneous, which these findings are not.” United States v. Lay, 583 F.3d 436, 449 (6th Cir.2009).

Because the commentary to the Guidelines is “authoritative,” United States v. Lay, 583 F.3d 436, 446 (6th Cir.2009), we take this opportunity to note that the “common sense approach” is now the proper guide for determining whether a misdemeanor is similar to the listed offenses listed under § 4A1.2(c).

As a within-the-Guidelines sentence, Stephens’s sentence “enjoys a rebuttable presumption of reasonableness.” See United States v. Lay, 583 F.3d 436, 449 (6th Cir.2009) (citing Vonner, 516 F.3d at 389-90 ); see also Rita v. United States, 551 U.S. 338, 347 , 127 S.Ct. 2456 , 168 L.Ed.2d 203 (2007).

Thus, “ ‘where a condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public, it must be upheld.’ ” United States v. Lay, 583 F.3d 436, 450 (6th Cir.2009) (quoting United States v. Bortels, 962 F.2d 558, 560 (6th Cir.1992)).

As the government argues, “Facebook and text messages showed Sykes manipulating [M.D.] by claiming he was falling in love with her, showering her with compliments, and promising that he would be with her forever.” Appellee Br. at 57 (citing R.124-4, PID 1496, 1499, 1508); see also United States v. Lay, 583 F.3d 436, 446 (6th Cir. 2009) (noting that the presumption was not overcome even where the “evidence suggested that [the minor] proposed a meeting with Lay, that [the mino…

See United States v. Lay, 583 F.3d 436, 449 (6th Cir. 2009) (“[A]dmitting the elements of criminal conduct while constantly attempting] to mischaracterize that conduct, ‘spin’ it, so to speak, and minimize [the defendant’s] responsibility will support a finding that a defendant has not accepted responsibility.” (internal quotation marks and citation omitted; second and third alterations in original)); see also United States v. Reeves, 100 Fed.Appx. 470, 471-72 (6th Cir. 2004…

See United States v. Lay, 583 F.3d 436, 447 (6th Cir.2009) (“Although Lay did not explicitly propose sexual relations in a computer message, Lay communicated with M.V. for one to two months with the ap *545 parent intention of having prohibited sexual relations with M.V.

See United States v. Lay, 583 F.3d 436, 448-49 (6th Cir.2009); United States v. Wolfe, 71 F.3d 611, 616 (6th Cir.1995).

See United States v. Lay, 583 F.3d 436, 448-49 (6th Cir.2009); Wolfe, 71 F.3d at 616 .

See United States v. Lay, 583 F.3d 436, 448-49 (6th Cir.2009); United States v. Wolfe, 71 F.3d 611, 616 (6th Cir.1995).

See United States v. Lay, 583 F.3d 436, 448 (6th Cir.2009) (“Denial of the reduction for acceptance of responsibility is proper if the court believes the defendant testified untruthfully.” (citation and alteration omitted)).

See United States v. Lay, 583 F.3d 436, 445 (6th Cir.2009) (upholding the undue influence enhanee *271 ment because the district court “found facts that are consistent with a manipulative adult’s building a relationship with a minor for the purpose of eventual sexual activity”).

See United States v. Lay, 583 F.3d 436, 448 (6th Cir.2009) (quoting United States v. Bonds, 48 F.3d 184, 189 (6th Cir.1995)). *517 C.