Sentencing Guidelines » Chapter 2 c

U.S.S.G. § 2A3.2

Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts

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(a)       Base Offense Level:  18

(b)      Specific Offense Characteristics

(1)       If the minor was in the custody, care, or supervisory control of the defendant, increase by 4 levels.

(2)       If (A) subsection (b)(1) does not apply; and (B)(i) the offense involved the knowing misrepresentation of a participant's identity to persuade, induce, entice, or coerce the minor to engage in prohibited sexual conduct; or (ii) a participant otherwise unduly influenced the minor to engage in prohibited sexual conduct, increase by 4 levels.

(3)       If a computer or an interactive computer service was used to persuade, induce, entice, or coerce the minor to engage in prohibited sexual conduct, increase by 2 levels.

(c)       Cross Reference

(1)       If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).  If the victim had not attained the age of 12 years, §2A3.1 shall apply, regardless of the "consent" of the victim.

 

Commentary

Statutory Provision:  18 U.S.C. § 2243(a).  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

"Minor" means (A) an individual who had not attained the age of 16 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 16 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years.

"Participant" has the meaning given that term in Application Note 1 of §3B1.1 (Aggravating Role).

"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

2.     Custody, Care, or Supervisory Control Enhancement.—

(A)    In General.—Subsection (b)(1) is intended to have broad application and is to be applied whenever the minor is entrusted to the defendant, whether temporarily or permanently.  For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement.  In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship.

(B)    Inapplicability of Chapter Three Adjustment.—If the enhancement in subsection (b)(1) applies, do not apply subsection (b)(2) or §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

3.     Application of Subsection (b)(2).–

(A)    Misrepresentation of Identity.—The enhancement in subsection (b)(2)(B)(i) applies in cases involving the misrepresentation of a participant's identity to persuade, induce, entice, or coerce the minor to engage in prohibited sexual conduct.  Subsection (b)(2)(B)(i) is intended to apply only to misrepresentations made directly to the minor or to a person who exercises custody, care, or supervisory control of the minor.  Accordingly, the enhancement in subsection (b)(2)(B)(i) would not apply to a misrepresentation made by a participant to an airline representative in the course of making travel arrangements for the minor. 

The misrepresentation to which the enhancement in subsection (b)(2)(B)(i) may apply includes misrepresentation of a participant's name, age, occupation, gender, or status, as long as the misrepresentation was made with the intent to persuade, induce, entice, or coerce the minor to engage in prohibited sexual conduct.  Accordingly, use of a computer screen name, without such intent, would not be a sufficient basis for application of the enhancement.

(B)   Undue Influence.—In determining whether subsection (b)(2)(B)(ii) applies, the court should closely consider the facts of the case to determine whether a participant's influence over the minor compromised the voluntariness of the minor's behavior.  The voluntariness of the minor's behavior may be compromised without prohibited sexual conduct occurring.

However, subsection (b)(2)(B)(ii) does not apply in a case in which the only "minor" (as defined in Application Note 1) involved in the offense is an undercover law enforcement officer.

In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B)(ii) applies.  In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor.

4.      Application of Subsection (b)(3).—Subsection (b)(3) provides an enhancement if a computer or an interactive computer service was used to persuade, induce, entice, or coerce the minor to engage in prohibited sexual conduct.  Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with the minor or with a person who exercises custody, care, or supervisory control of the minor.

5.      Cross Reference.— Subsection (c)(1) provides a cross reference to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or § 2242.  For example, the cross reference to §2A3.1 shall apply if (A) the victim had not attained the age of 12 years (see 18 U.S.C. § 2241(c)); (B) the victim had attained the age of 12 years but not attained the age of 16 years, and was placed in fear of death, serious bodily injury, or kidnapping (see 18 U.S.C. § 2241(a),(c)); or (C) the victim was threatened or placed in fear other than fear of death, serious bodily injury, or kidnapping (see 18 U.S.C. § 2242(1)).

Background:  This section applies to offenses involving the criminal sexual abuse of an individual who had not attained the age of 16 years.  While this section applies to consensual sexual acts prosecuted under 18 U.S.C. § 2243(a) that would be lawful but for the age of the minor, it also applies to cases, prosecuted under 18 U.S.C. § 2243(a), in which a participant took active measure(s) to unduly influence the minor to engage in prohibited sexual conduct and, thus, the voluntariness of the minor's behavior was compromised.  A four-level enhancement is provided in subsection (b)(2) for such cases.  It is assumed that at least a four-year age difference exists between the minor and the defendant, as specified in 18 U.S.C. § 2243(a).  A four-level enhancement is provided in subsection (b)(1) for a defendant who victimizes a minor under his supervision or care.  However, if the minor had not attained the age of 12 years, §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) will apply, regardless of the "consent" of the minor.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (amendment 93); November 1, 1991 (amendment 392); November 1, 1992 (amendment 444); November 1, 1995 (amendment 511); November 1, 2000 (amendment 592); November 1, 2001 (amendment 615); November 1, 2004 (amendment 664); November 1, 2009 (amendment 732); November 1, 2010 (amendment 746); November 1, 2025 (amendment 836).


 

Notes of Decisions
Cited in 122 cases (7 in the last 5 years), 1991–2026 · leading case: United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002).
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United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002). · cites it 13× “USSG § 2A3.2, note 1. The Sentencing Commission explained that the purpose of this expanded definition of “victim” was to ensure offenders who are apprehended in undercover operations, like Root, are appropriately punished, as follows: This amendment .”
United States v. John Mitchell, 353 F.3d 552 (7th Cir. 2003). · cites it 18× “In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts” applied.”
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). · cites it 17× “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. James Randy Chriswell, 401 F.3d 459 (6th Cir. 2005). · cites it 12× “Effective November 1, 2004, U.S.S.G. § 2A3.2 was amended to replace the word "victim,” as used in the Guideline, with the similarly defined word "minor.”
United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003). · cites it 7× “§ 2422 is unconstitutionally overbroad or vague; and (2) whether the district court erred in applying USSG § 2A3.2 to calculate his sentence. III.”
United States v. Miranda, 348 F.3d 1322 (11th Cir. 2003). · cites it 9× “4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), instead of the harsher penalties provided in U.S.S.G. § 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts); and (2) in failing to assess a…”
United States v. Tyndall, 521 F.3d 877 (8th Cir. 2008). · cites it 6× “§ 2A3.2(c), however, requires the application of U.”
United States v. Ausburn, 502 F.3d 313 (3rd Cir. 2007). · cites it 3× “He stated that the "current [2004] version of U.S.S.G. § 2A3.2 should be applied to him despite its current non-appearance via a cross-reference in § 2G1.”
United States v. Joseph Haynes, 160 F. App'x 940 (11th Cir. 2005). · cites it 13× “See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of Identity).”
United States v. William A. Beith, 407 F.3d 881 (7th Cir. 2005). · cites it 5× “§ 2423 (b) 3 may be sentenced under the statutory rape offense guideline, U.S.S.G. § 2A3.2, which applies to sexual abuse of a minor under the age of 16 and sets the base offense level at 24.”
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit, 229 F.3d 861 (9th Cir. 2000). · cites it 4× “Double Counting The guideline applicable to the crime charged in count 1, criminal sexual abuse of a minor, U.S.S.G. § 2A3.2 (1998), provides for a base offense level of 15.”
United States v. Graham, 413 F.3d 1211 (10th Cir. 2005). · cites it 6× “” USSG § 2A3.2, comment, (n.l). Focusing on the second sentence of the cross reference in § 2A3.”
Show all 122 citing cases →
— U.S.S.G. §2A3.2(a) — 6 cases
United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003). “§ 2422 is unconstitutionally overbroad or vague; and (2) whether the district court erred in applying USSG § 2A3.2 to calculate his sentence. III.”
United States v. John Mitchell, 353 F.3d 552 (7th Cir. 2003). “In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts” applied.”
United States v. Garcia-Lopez, 234 F.3d 217 (5th Cir. 2000).
United States v. Waseta, 647 F.3d 980 (10th Cir. 2011).
United States v. Patterson (10th Cir. 2022).
— U.S.S.G. §2A3.2(a)(1) — 1 case
United States v. Beith, William A. (7th Cir. 2005).
— U.S.S.G. §2A3.2(a)(2) — 6 cases
United States v. Edgar Joe Searcy, 418 F.3d 1193 (11th Cir. 2005).
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. Graham, 413 F.3d 1211 (10th Cir. 2005). “” USSG § 2A3.2, comment, (n.l). Focusing on the second sentence of the cross reference in § 2A3.”
United States v. Joseph Haynes, 160 F. App'x 940 (11th Cir. 2005). “See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of Identity).”
United States v. Brown, 526 F.3d 691 (11th Cir. 2008).
— U.S.S.G. §2A3.2(a)(3) — 2 cases
United States v. Bitsilly, 386 F. Supp. 2d 1192 (D.N.M. 2005).
United States v. Serdahl, 316 F. Supp. 2d 859 (D.N.D. 2004).
— U.S.S.G. §2A3.2(a)(l) — 4 cases
United States v. William A. Beith, 407 F.3d 881 (7th Cir. 2005). “§ 2423 (b) 3 may be sentenced under the statutory rape offense guideline, U.S.S.G. § 2A3.2, which applies to sexual abuse of a minor under the age of 16 and sets the base offense level at 24.”
United States v. Saul Dos Reis, 369 F.3d 143 (2d Cir. 2004).
United States v. Kenrick, 241 F. App'x 10 (3rd Cir. 2007).
United States v. Garcia, 225 F. App'x 47 (3rd Cir. 2007).
— U.S.S.G. §2A3.2(b) — 6 cases
United States v. James Randy Chriswell, 401 F.3d 459 (6th Cir. 2005). “Effective November 1, 2004, U.S.S.G. § 2A3.2 was amended to replace the word "victim,” as used in the Guideline, with the similarly defined word "minor.”
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. Mitchell, John (7th Cir. 2003).
United States v. Chriswell (6th Cir. 2005).
United States v. Ausburn, 362 F. App'x 259 (3rd Cir. 2010).
— U.S.S.G. §2A3.2(b)(1) — 9 cases
United States v. Ausburn, 502 F.3d 313 (3rd Cir. 2007). “He stated that the "current [2004] version of U.S.S.G. § 2A3.2 should be applied to him despite its current non-appearance via a cross-reference in § 2G1.”
United States v. Stoney End of Horn, 829 F.3d 681 (8th Cir. 2016).
United States v. Blackbird, 949 F.3d 530 (10th Cir. 2020).
United States v. Waseta, 647 F.3d 980 (10th Cir. 2011).
United States v. Devine, 48 F. App'x 249 (9th Cir. 2002).
— U.S.S.G. §2A3.2(b)(2) — 6 cases
United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002). “USSG § 2A3.2, note 1. The Sentencing Commission explained that the purpose of this expanded definition of “victim” was to ensure offenders who are apprehended in undercover operations, like Root, are appropriately punished, as follows: This amendment .”
United States v. James Randy Chriswell, 401 F.3d 459 (6th Cir. 2005). “Effective November 1, 2004, U.S.S.G. § 2A3.2 was amended to replace the word "victim,” as used in the Guideline, with the similarly defined word "minor.”
United States v. Joseph Haynes, 160 F. App'x 940 (11th Cir. 2005). “See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of Identity).”
United States v. Terrance Brown, 634 F. App'x 477 (6th Cir. 2015).
United States v. Berger, 119 F. App'x 658 (5th Cir. 2005).
— U.S.S.G. §2A3.2(b)(2)(2003) — 1 case
United States v. Jonathan Shub, 210 F. App'x 547 (8th Cir. 2006).
— U.S.S.G. §2A3.2(b)(2)(A) — 4 cases
United States v. John Mitchell, 353 F.3d 552 (7th Cir. 2003). “In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts” applied.”
United States v. Joseph Haynes, 160 F. App'x 940 (11th Cir. 2005). “See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of Identity).”
United States v. Holley (6th Cir. 2005).
United States v. Mitchell, John (7th Cir. 2003).
— U.S.S.G. §2A3.2(b)(2)(A)(i) — 2 cases
United States v. Miranda, 348 F.3d 1322 (11th Cir. 2003). “4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), instead of the harsher penalties provided in U.S.S.G. § 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts); and (2) in failing to assess a…”
United States v. Joseph Haynes, 160 F. App'x 940 (11th Cir. 2005). “See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of Identity).”
— U.S.S.G. §2A3.2(b)(2)(B) — 24 cases
United States v. James Randy Chriswell, 401 F.3d 459 (6th Cir. 2005). “Effective November 1, 2004, U.S.S.G. § 2A3.2 was amended to replace the word "victim,” as used in the Guideline, with the similarly defined word "minor.”
United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002). “USSG § 2A3.2, note 1. The Sentencing Commission explained that the purpose of this expanded definition of “victim” was to ensure offenders who are apprehended in undercover operations, like Root, are appropriately punished, as follows: This amendment .”
United States v. John Mitchell, 353 F.3d 552 (7th Cir. 2003). “In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts” applied.”
United States v. Poynter, 495 F.3d 349 (6th Cir. 2007).
United States v. Lay, 583 F.3d 436 (6th Cir. 2009).
— U.S.S.G. §2A3.2(b)(2)(B)(ii) — 3 cases
United States v. Gary Jay Goldberg, 591 F. App'x 792 (11th Cir. 2014).
United States v. Joseph Kupetsky, 501 F. App'x 214 (3rd Cir. 2012).
United States v. Snow, 184 F. App'x 618 (9th Cir. 2006).
— U.S.S.G. §2A3.2(b)(2)(ii) — 1 case
United States v. Patterson (10th Cir. 2022).
— U.S.S.G. §2A3.2(b)(3) — 18 cases
United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002). “USSG § 2A3.2, note 1. The Sentencing Commission explained that the purpose of this expanded definition of “victim” was to ensure offenders who are apprehended in undercover operations, like Root, are appropriately punished, as follows: This amendment .”
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. Thomas, 410 F.3d 1235 (10th Cir. 2005).
United States v. Edgar Joe Searcy, 418 F.3d 1193 (11th Cir. 2005).
United States v. John Mitchell, 353 F.3d 552 (7th Cir. 2003). “In the plea agreement, both parties agreed that U.S.S.G. § 2A3.2 entitled “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts” applied.”
— U.S.S.G. §2A3.2(b)(3)(A) — 2 cases
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. Jonathan Shub, 210 F. App'x 547 (8th Cir. 2006).
— U.S.S.G. §2A3.2(b)(3)(A)(2003) — 1 case
United States v. Jonathan Shub, 210 F. App'x 547 (8th Cir. 2006).
— U.S.S.G. §2A3.2(b)(3)(B) — 3 cases
United States v. Robertson, 350 F.3d 1109 (10th Cir. 2003). “l (cross-referenced in U.S.S.G. § 2A3.2, cmt. n.1). Mr. Robertson pled guilty to knowingly traveling in interstate commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.”
United States v. Calp, 113 F. App'x 358 (10th Cir. 2004).
United States v. McGraw, 351 F.3d 443 (10th Cir. 2003).
— U.S.S.G. §2A3.2(b)(4)(B) — 1 case
United States v. Jim, 347 F. Supp. 3d 847 (D.N.M. 2018).
— U.S.S.G. §2A3.2(b)(l) — 11 cases
United States v. John Allen Root, 296 F.3d 1222 (11th Cir. 2002). “USSG § 2A3.2, note 1. The Sentencing Commission explained that the purpose of this expanded definition of “victim” was to ensure offenders who are apprehended in undercover operations, like Root, are appropriately punished, as follows: This amendment .”
United States v. Kenrick, 241 F. App'x 10 (3rd Cir. 2007).
United States v. Larson Foster Chatlin, Jr., 51 F.3d 869 (9th Cir. 1995).
United States v. Filbert William Janis, Jr., 71 F.3d 308 (8th Cir. 1995).
United States v. Allen Medrano Passi, 62 F.3d 1278 (10th Cir. 1995).
— U.S.S.G. §2A3.2(c) — 8 cases
United States v. Tyndall, 521 F.3d 877 (8th Cir. 2008). “§ 2A3.2(c), however, requires the application of U.”
United States v. Graham, 413 F.3d 1211 (10th Cir. 2005). “” USSG § 2A3.2, comment, (n.l). Focusing on the second sentence of the cross reference in § 2A3.”
United States v. Reginald Graham, 123 F.4th 1197 (11th Cir. 2024).
United States v. Terry D. Searby, 439 F.3d 961 (8th Cir. 2006).
United States v. Morris Edward Benais (8th Cir. 2006).
— U.S.S.G. §2A3.2(c)(1) — 5 cases
United States v. Timothy Red Elk, 426 F.3d 948 (8th Cir. 2005).
United States v. Beith, William A. (7th Cir. 2005).
United States v. William T. Carter (8th Cir. 2005).
United States v. Timothy Red Elk (8th Cir. 2005).
United States v. Morris Edward Benais (8th Cir. 2006).
— U.S.S.G. §2A3.2(c)(l) — 5 cases
United States v. William A. Beith, 407 F.3d 881 (7th Cir. 2005). “§ 2423 (b) 3 may be sentenced under the statutory rape offense guideline, U.S.S.G. § 2A3.2, which applies to sexual abuse of a minor under the age of 16 and sets the base offense level at 24.”
United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit, 229 F.3d 861 (9th Cir. 2000). “Double Counting The guideline applicable to the crime charged in count 1, criminal sexual abuse of a minor, U.S.S.G. § 2A3.2 (1998), provides for a base offense level of 15.”
United States v. Kenneth Schneider, 801 F.3d 186 (3rd Cir. 2015).
United States v. William T. Carter, 410 F.3d 1017 (8th Cir. 2005).
United States v. Graham, 413 F.3d 1211 (10th Cir. 2005). “” USSG § 2A3.2, comment, (n.l). Focusing on the second sentence of the cross reference in § 2A3.”
— U.S.S.G. §2A3.2(e) — 1 case
United States v. David Lebovitz, 401 F.3d 1263 (11th Cir. 2005).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.