U.S.S.G. § 2A3.3

Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts; Criminal Sexual Abuse of an Individual in Federal Custody

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(a) Base Offense Level: 18

(b) Specific Offense Characteristics

(1) If the offense involved the knowing misrepresentation of a participant's identity to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct, increase by 2 levels.

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

(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(b), 2243(c). 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 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 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 18 years.

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

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

"Ward" means a person in official detention under the custodial, supervisory, or disciplinary authority of the defendant.

2. Application of Subsection (b)(1).—The enhancement in subsection (b)(1) applies in cases involving the misrepresentation of a participant's identity to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(1) is intended to apply only to misrepresentations made directly to a minor or to a person who exercises custody, care, or supervisory control of the minor.

The misrepresentation to which the enhancement in subsection (b)(1) 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 a 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.

3. Application of Subsection (b)(2).–Subsection (b)(2) provides an enhancement if a computer or an interactive computer service was used to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct. Subsection (b)(2) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.

4. Inapplicability of §3B1.3.—Do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (amendment 94); November 1, 1995 (amendment 511); November 1, 2000 (amendment 592); November 1, 2001 (amendment 615); November 1, 2004 (amendment 664); November 1, 2007 (amendment 701); November 1, 2010 (amendment 746); November 1, 2023 (amendment 816).

Notes of Decisions

Cited in 9 cases, 1993–2006 · leading case: United States v. Anderson, 5 F.3d 795 (5th Cir. 1993).

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United States v. Anderson, 5 F.3d 795 (5th Cir. 1993). “§ 2243 (a): base offense level 15); U.S.S.G. § 2A3.3 (criminal sexual abuse of a ward, based on violation of 18 U.”

United States v. James R. Hochschild, 442 F.3d 974 (6th Cir. 2006). “U.S.S.G. § 2A3.3. pertains to criminal abuse of a ward.”

United States v. Graham, 413 F.3d 1211 (10th Cir. 2005). “§ 2423 (b) is also governed by USSG § 2A3.3 (applicable to wards and therefore not relevant to this appeal).”

United States v. Harvey Alter, 985 F.2d 105 (2d Cir. 1993). “U.S.S.G. § 2A3.3. To this it added 2 more levels because of Alter’s relationship with Gary O.”

United States v. Rice, 8 F. App'x 214 (4th Cir. 2001). “2, and U.S.S.G. § 2A3.3. See U.S.S.G.App. A. When more than, one guideline is applicable for a particular statute, the sentencing court must “use the guideline most appropriate for the nature of the offense conduct charged in the count of which the defendant was convicted.”

United States v. Alter, 825 F. Supp. 550 (S.D.N.Y. 1993). · cites it 2× “The guideline applicable to this offense is U.S.S.G. § 2A3.3 As with the pair of offenses utilized in calculating the offense level applicable to the Donald V.”

United States v. Carter (5th Cir. 2003). “” The Probation Officer calculated the Sentencing Guideline range at a base offensive level 9 under USSG §2A3.3, plus a two level increase for submitting a materially false written statement in the form of a sworn affidavit under USSG §3C1.”

United States v. Hochschild (6th Cir. 2006). “U.S.S.G. § 2A3.3. pertains to criminal abuse of a ward.”

United States v. Anderson (5th Cir. 1993). “§ 2243 (a): base offense level 15); U.S.S.G. § 2A3.3 (criminal sexual abuse of a ward, based on violation of 18 U.”

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