                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 10-4105


          UNITED STATES OF AMERICA

                              v.

              ROBERT PAWLOWSKI,

                                       Appellant.



    On Appeal from the United States District Court
        for the Western District of Pennsylvania
              (D. C. No. 2-09-cr-00209-001)
    District Judge: Honorable Donetta W. Ambrose


             Argued on October 25, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges


            (Opinion filed: June 19, 2012)




                          1
Lisa B. Freeland, Esquire
Federal Public Defender
Karen Sirianni Gerlach, Esquire (Argued)
Assistant Federal Public Defender
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222

                    Counsel for Appellant


David J. Hickton, Esquire
United States Attorney
Kelly R. Labby, Esquire
Assistant United States Attorney
Rebecca R. Haywood, Esquire
Laura S. Irwin, Esquire
Michael I. Ivory, Esquire (Argued)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

                    Counsel for Appellee




                              2
                        OPINION


ROTH, Circuit Judge:

       Robert Pawlowski appeals both his conviction of one
count of attempted enticement of a minor, in violation of 18
U.S.C. § 2422(b), and the sentence imposed by the District
Court.    Pawlowski raises three arguments:             (1) the
government‟s remark that defense counsel would “certainly
present evidence” violated his Fifth Amendment rights, (2)
the evidence at trial was insufficient to prove that he believed
he was communicating with a minor, and (3) the District
Court miscalculated his Sentencing Guidelines range because
masturbation does not constitute “sexual contact” for the
purpose of the two-level enhancement pursuant to U.S.S.G. §
2G1.3(b)(4)(A). For the reasons that follow, we will affirm
the judgments of conviction and of sentence of the District
Court.

I. BACKGROUND

       A. The Crime

       In the spring of 2009, Detective Lynn Havelka of the
Allegheny County District Attorney‟s Office was involved in
an online undercover investigation into crimes against
children. As part of the investigation, Detective Havelka
created an online profile under the name “Ashley Anthony”
on myYearbook, a social networking website. Detective
Havelka posed as a 15-year-old girl. Because certain features




                               3
of myYearbook, such as chatting, were restricted to
individuals 18 years of age or older, Detective Havelka listed
“Ashley‟s” age as 98. Detective Havelka chose 98 because
no one would believe that a 98-year-old used myYearbook
and “it would give an opportunity to an individual to ask me
how old I am.”

       Pawlowski first contacted “Ashley” on April 27, 2009,
with a “friend” request via myYearbook. After “Ashley”
accepted, Pawlowski inquired: “I know you are not 98. How
old are you, if I may be so forward in asking?” “Ashley”
responded that she was 15 years old and in high school.
Pawlowski then asked: “Why did you put 98 on your
profile?” “Ashley” explained that she wanted to be able to
chat with her friends on myYearbook.

        Frequent communications between Pawlowski and
“Ashley” soon followed via myYearbook, Yahoo Instant
Messenger, and Yahoo email. The communications were
recorded by Detective Havelka. Pawlowski quickly raised
sexual topics and continued to do so throughout the month
and a half that he contacted “Ashley.” Detective Havelka,
with the aid of a voice changer device to sound like a younger
girl, also spoke as “Ashley” with Pawlowski via cellular
telephone.

       After their first phone conversation on May 15, 2009,
Pawlowski expressed his desire to meet “Ashley” in person.
During an online conversation on May 24, 2009, Pawlowski
masturbated in front of “Ashley” on his webcam. A few days
later, Pawlowski and “Ashley” discussed arrangements to
meet in person, including whether he should buy condoms.
The morning of May 28, 2009, “Ashley” called Pawlowski to




                              4
confirm their plan to meet at 9:30 a.m. at the Waterfront in
Homestead, Pennsylvania. When Pawlowski appeared at the
specified time and place, he was arrested. A search warrant
was obtained and executed on his residence later that day.

       On June 24, 2009, a one-count Indictment was
returned, charging Pawlowski with attempted enticement of a
minor, in violation of 18 U.S.C. § 2422(b).1 Pawlowski pled
not guilty and proceeded to a jury trial.

         B. The Trial

      During the three-day jury trial, the government called
two witnesses: Detective Havelka and FBI Special Agent
Ignace Ertilus. The defense did not call any witnesses.
Pawlowski was found guilty.


1
    Section 2422(b) provides:
                Whoever, using the mail or any
                facility or means of interstate or
                foreign commerce, or within the
                special maritime and territorial
                jurisdiction of the United States
                knowingly       persuades,    induces,
                entices, or coerces any individual
                who has not attained the age of 18
                years, to engage in prostitution or
                any sexual activity for which any
                person can be charged with a
                criminal offense, or attempts to do
                so, shall be fined under this title and
                imprisoned not less than 10 years or
                for life.




                                  5
              1. The Government’s Remark

        Following empanelment, the District Court gave the
jury preliminary instructions which explained, inter alia, the
burden of proof, the presumption of innocence, and the
purpose of opening statements, including that “opening
statements are not evidence.” In particular, the District Court
stated:
              After the government has presented
              all the evidence it intends to present,
              the defendant‟s attorney may make
              an opening statement if he has not
              already done so. Then he may or
              may not present evidence on behalf
              of the defendant. And the reason
              that I say he may or may not is
              because the defendant is not required
              to present any evidence. I remind
              you he is presumed innocent and it is
              the government‟s burden and the
              government‟s duty alone to prove the
              guilt of the defendant, and that proof
              must be beyond a reasonable doubt.
              A defendant, this defendant, does not
              have to prove that he is innocent.

        During the government‟s opening, the prosecutor
stated to the jury:

              Mr. Pawlowski is absolutely entitled
              to a fair trial, and he will have a fair
              trial.   Please remember that the
              burden of proof is on the
              prosecution, as it should be, in a
              criminal case.         And [defense




                                 6
             counsel] Mr. DeRiso will certainly
             present evidence and explain
             things and bring up, make good
             points that will help you understand
             the evidence better.

 (emphasis added). No objection was made to this or to any
part of the government‟s opening statement. Instead, at the
end of defendant‟s opening statement, defense counsel
remarked:

             Now, Mr. Prosecutor Haller, excuse
             me,      Assistant    United      States
             Attorney, indicated that I am going
             to put evidence on, and I am sure
             that was a misstatement. I have no
             duty to put any evidence on. Trust
             me, there will be some zealous cross-
             examination, however, and I am
             going to submit to you all of the
             evidence is right here. It is the chats.
             It is the phone conversations. What
             other evidence is there?            The
             government wants you to look at the
             evidence and believe this. Defense
             wants you to look at the evidence
             and believe this. It is that simple.




                                7
The defendant did not object to the government‟s opening
statement, request a curative instruction from the District
Court, or move for a mistrial.

        At the close of the evidence, the District Court gave
final instructions to the jury, which explained that Pawlowski
had a constitutional right not to testify and reiterated, in part:

              The burden of proof is always on the
              government and it must prove guilt
              beyond a reasonable doubt. This
              burden never shifts to a defendant
              because the law never imposes upon
              a defendant in a criminal case the
              burden of calling any witnesses or
              producing any evidence.

              2. The Age of the “Victim”

       At trial, the recorded communications between
Pawlowski and “Ashley” were entered into evidence and
extensive portions were read aloud, including discussions of
“Ashley‟s” age and appearance in photographs.

       In their first conversation, on April 27, 2009,
Pawlowski asked “Ashley” directly about her age and learned
that she was 15 years old. Later in the same conversation,
Pawlowski told “Ashley” not to tell anyone that they chatted
because “I could get in trouble, you know, under-age.” When
“Ashley” said she worked in order to earn money to buy
clothes, Pawlowski responded: “[h]igh school girls don‟t need
clothes.”    Throughout the month that they corresponded,
Pawlowski made numerous remarks indicating he believed




                                8
“Ashley” to be 15 years old. He asked when she would be
turning 16 years old and commented: “Dam[n], I wish you
was three years older. Laugh out loud. Then you would be
legal.” He repeatedly called her “young lady” and warned her
not to drink or do drugs. He referred to their “age gap” and
“age diff” and described himself as an “old dude” and
“older.” When “Ashley” wondered whether her age bothered
him, Pawlowski responded no, saying: “You think if we was
to meet that I would look at you as a 15 immature, young
lady, or something, you know, age issue?” “Ashley” also
reinforced her age by repeating it, such as “I‟m 15.
Remember,” and by referring to age-related events, such as
going to high school and learning to drive.

       In addition, Pawlowski repeatedly expressed concern
that he could get into trouble because of “Ashley‟s” age. He
told “Ashley” he preferred that she not tell anyone about their
contact so that “we don‟t run into any probs.” He later
explained:

               Pawlowski: The reason I seem to be
              dancing around subjects from the
              whatevers and have you confused is
              that this is the internet and there are
              sting operations for older guys
              hitting, trying to pick up younger
              females, and I was just being careful.
              I just don‟t want any trouble with
              anyone. You know what I mean?
              There, it‟s all out now.

              “Ashley”: I know what you mean.

              Pawlowski: I know I am a lot older.




                                9
             Just don‟t want you to think, think
             me as a perve. I am not by far. I just
             want you to know that.

       Photographs of “Ashley” from her my Yearbook profile
were also introduced into evidence. The photographs actually
depicted a female police officer at ages 13, 15, and 16. After
seeing the photographs, Pawlowski expressed his desire to meet
“Ashley” in person and asked her to send him more pictures.

      C. The Sentencing

        Pawlowski faced a mandatory minimum of ten years
imprisonment, pursuant to 18 U.S.C. § 2422(b). The
Probation Office determined that Pawlowski had a total
offense level of 32 and a criminal history category of I,
resulting in an advisory Sentencing Guidelines range of 121
to 150 months. That calculation included a two-level
enhancement for “sexual contact” pursuant to U.S.S.G. §
2G1.3(b)(4)(A) because of Pawlowski‟s masturbation via
webcam transmitted to “Ashley.” The term “sexual contact,”
as defined in 18 U.S.C. § 2246(3) and incorporated into
U.S.S.G. § 2G1.3, means:

      the intentional touching, either directly or through the
      clothing, of the genitalia . . . of any person with an
      intent to abuse, humiliate, harass, degrade, or arouse or
      gratify the sexual desire of any person.




                              10
       Pawlowski objected to that enhancement, contending
that touching oneself does not constitute the touching “of any
person.”

       At the sentencing hearing on September 30, 2010, the
District Court rejected Pawlowski‟s objection, finding that
“the Defendant touching his penis, masturbating while
interacting with who he believed was a 15-year-old girl,
qualifies as sexual contact as defined in the statute.” The
District Court, therefore, applied the two-level enhancement
pursuant to U.S.S.G. § 2G1.3(b)(4)(A) and sentenced
Pawlowski to 121 months‟ imprisonment, to be followed by
25 years of supervised release.

       Pawlowski appealed.

II. DISCUSSION

       A. The Government’s Remark

        Pawlowski argues that the government‟s opening
remark that defense counsel “will certainly present evidence”
constitutes an indirect prosecutorial comment on his failure to
testify, in violation of his Fifth Amendment rights. Because
Pawlowski did not preserve the issue, we review for plain
error. United States v. Balter, 91 F.3d 427, 441 (3d Cir.
1996). A plain error is “clear” or “obvious” and “affects
substantial rights,” meaning it was “prejudicial in that it
affected the outcome of the District Court proceedings.”
United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001).
The defendant must demonstrate “that the prosecutor‟s
remarks were improper, that they denied him a fair trial, and
that the outcome of the proceedings would have been




                              11
different absent the improper statements.” United States v.
DeSilva, 505 F.3d 711, 717-18 (7th Cir. 2007).

       The Fifth Amendment “forbids either comment by the
prosecution on the accused‟s silence or instruction by the
court that such silence is evidence of guilt.” Griffin v.
California, 380 U.S. 609, 615 (1965). A prosecutor‟s
comment constitutes reversible error only if it “was of such
character that the jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify.”
Lesko v. Lehman, 925 F.2d 1527, 1544 (3d Cir. 1991). In
making that determination, the challenged remark is
examined in its trial context. Id.

       Taken in its trial context, the government‟s brief and
isolated remark does not amount to plain error. The District
Court repeatedly explained to the jury that the government
bore the burden of proof and that Pawlowski had an absolute
constitutional right not to testify or present evidence.
Defense counsel directly responded to the government‟s
remark in his own opening statement, correcting any potential
misimpression the jury might have had. Moreover, the
evidence of Pawlowski‟s guilt was overwhelming, and the
outcome of the proceeding was unlikely to have been
different absent the remark. Any error, therefore, was not
plain.

      B. The Age of the “Victim”

       Pawlowski contends that the evidence at trial was
insufficient to prove that he believed he was communicating
with a minor, as required for a conviction under 18 U.S.C. §
2422(b). Because Pawlowski did not preserve the issue, we




                              12
review for plain error. United States v. Mornan, 413 F.3d
372, 381 (3d Cir. 2005). We “view the evidence in the light
most favorable to the government and must sustain a jury‟s
verdict if a reasonable jury believing the government‟s
evidence could find beyond a reasonable doubt that the
government proved all the elements of the offenses.” Id. at
381-82 (internal quotations omitted). The defendant‟s burden
is “extremely high.” United States v. Riley, 621 F.3d 312,
329 (3d Cir. 2010).

       Because Pawlowski targeted an adult decoy, rather
than an actual minor, he was charged with attempt, which
focuses “on the subjective intent of the defendant, not the
actual age of the victim.” See United States v. Tykarsky, 446
F.3d 458, 466-69 (3d Cir. 2006) (holding lack of an actual
minor is not a defense to charge of attempted enticement). To
prove attempt, the government must show the defendant
intended to commit a crime and took a substantial step toward
doing so. Id. at 469. Accordingly, one of the elements the
government must prove (and the only one that Pawlowski
disputes on appeal) is that Pawlowski subjectively believed
that “Ashley” was under the age of 18.

       Pawlowski argues that there was insufficient evidence
for the jury to find that he believed “Ashley” was a minor
because “as far as he knew, and subjectively believed, the 15-
year old age could have been false, just as easily as the 98-
year old age could have been.” We reject Pawlowski‟s
argument because ample evidence was introduced at trial
from which a reasonable jury could find beyond a reasonable
doubt that Pawlowski subjectively believed he was
communicating with a 15-year-old.




                             13
       C. “Sexual Contact”

       Pawlowski contends on appeal, as he did at sentencing,
that the two-level enhancement for “sexual contact” pursuant
to U.S.S.G. § 2G1.3(b)(4)(A) was improperly applied because
the touching of oneself is not the touching “of any person.”
We review de novo the District Court‟s interpretation of
statutory requirements, United States v. Williams, 344 F.3d
365, 377 (3d Cir. 2003), and legal conclusions regarding the
Sentencing Guidelines. United States v. Blackmon, 557 F.3d
113, 118 (3d Cir. 2009).

        We turn first to the language of the Sentencing
Guidelines and of the underlying statute. United States v.
Swan, 275 F.3d 272, 279 (3d Cir. 2002). Where the language
is plain and unambiguous, “the sole function of the court is to
enforce it according to its terms.” United States v. Sherman,
150 F.3d 306, 313 (3d Cir. 1998). The words “must be read
in their context and with a view to their place in the overall
statutory scheme.” Swan, 275 F.3d at 279.

       The two-level enhancement pursuant to U.S.S.G. §
2G1.3(b)(4)(A) applies if “the offense involved the
commission of a sex act or sexual contact.” Application Note
1 incorporates the definitions of “sexual act” and “sexual
contact” stated in 18 U.S.C. §§ 2246(2)-(3). “Sexual act” is
“the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16
years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.” 18 U.S.C.
§ 2246(2)(D). “Sexual contact” is “the intentional touching,
either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an




                              14
intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.” 18 U.S.C. § 2246(3).

        In Pawlowski‟s view, if Congress had intended to
include masturbation within the meaning of the statute, the
statute would have read “of any person or of one‟s self.” By
contrast, the government argues that: “The definition says any
person. And Mr. Pawlowski is any person.” Indeed, “any”
means “every.” See, e.g., OXFORD ENGLISH DICTIONARY (2d
ed. 1989) (“In affirmative sentences [any] asserts concerning
a being or thing of the sort named, without limitation as to
which, and thus constructively of every one of them, since
every one may in turn be taken as a representative.”).
Pawlowski is, of course, a person and thus “of any person”
would include him.

         Moreover, turning to the statute itself, “where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Dean v.
United States, 129 S. Ct. 1849, 1854 (2009); see also United
States v. Mobley, 956 F.2d 450, 452-53 (3d Cir. 1992) (“It is a
fundamental canon of statutory construction that where
sections of a statute did not include a specific term used
elsewhere in the statute, the drafters did not wish such a
requirement to apply.”).          Here, therefore, Congress
presumably intended to distinguish between “of any person”
in 18 U.S.C. § 2246(3) and “of another person” in 18 U.S.C.
§ 2246(2)(D), so that “of another person” does not include
oneself but “of any person” does. Indeed, the language of the
statute is unambiguous: it is clear that “of any person”




                              15
includes a defendant himself and does not          require the
touching of the victim.

        Other courts of appeal have reached the same
conclusion through similar reasoning. The Eleventh Circuit
Court of Appeals concluded that “sexual contact” includes
“the act of masturbating” because the phrase “of any person”
applies “to all persons, including [defendant] himself.” See
United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009).
In that case, the District Court applied a two-level
enhancement at sentencing under U.S.S.G. § 2G2.1(b)(2)(A)
after finding that the defendant‟s “masturbating for a minor
female in front of his web camera constituted a „sexual
contact.‟” Id. at 978. The defendant argued, as Pawlowski
does here, that “because one cannot „harass‟ oneself, the
definition of „sexual contact‟ must not include masturbation.”
Id. at 979. The Eleventh Circuit rejected that argument,
noting that “a defendant need only intend to „abuse,
humiliate, harass, degrade, or arouse or gratify‟ in order to
violate the statute. That [defendant] could not do one of these
things is immaterial so long as he could do another.” Id. We
reject Pawlowski‟s argument for the same reason.

       The Sixth Circuit Court of Appeals has also concluded
that “sexual contact” includes masturbation in a similar but
not identical context, i.e. where the defendant caused the
minor victim to masturbate. See United States v. Shafer, 573
F.3d 267, 279 (6th Cir. 2009). The Sixth Circuit found that
“of any person” includes oneself based on the plain statutory
language and further noted that the legislative history does
not suggest otherwise. See id. at 273.




                              16
       In sum, because the language of the statute is plain and
unambiguous, the phrase “of any person” encompasses
“oneself.” The District Court, therefore, correctly interpreted
§ 2G1.3(b)(4)(A) to include masturbation as a form of
“sexual contact” covered by the language of the section. See
Sherman, 150 F.3d at 313 (“Statutory interpretation usually
begins, and often ends, with the language of the statute.”).

III. CONCLUSION

      For the reasons set forth above, we will affirm the
judgment of the District Court.




                              17
