                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2006

USA v. Williams
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1985




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                    No. 05-1985
                                    __________

                         UNITED STATES OF AMERICA

                                         v.

                              WYNDELL WILLIAMS,

                                            Appellant
                                    __________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                         (D.C. Criminal No. 04-cr-00229-1)
                      District Judge: Honorable Alan N. Bloch
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 on May 18, 2006

            Before: RENDELL and VAN ANTWERPEN, Circuit Judges,
                       and ACKERMAN*, District Judge.

                                (Filed June 7, 2006)
                                    __________

                            OPINION OF THE COURT
                                  __________

_______________
   * Honorable Harold A. Ackerman, Senior Judge of the United States District Court
      for the District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.

       Wyndell Williams pleaded guilty to possessing pornography depicting minors

engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). On

March 17, 2005, the District Court sentenced him to seventy-one months imprisonment,

the top of the applicable range under the Sentencing Guidelines. The sole issue Williams

raises on appeal is whether he was sentenced pursuant to an erroneous Guidelines

calculation.1 Williams challenges the District Court’s application of a five-level sentence

enhancement for “engag[ing] in a pattern of activity involving the sexual abuse or

exploitation of a minor.” U.S. Sentencing Guidelines Manual § 2G2.2(b)(4) (2003).2

This enhancement increased Williams’s sentencing range to fifty-seven to seventy-one

months, up from thirty-three to forty-one months.

       We exercise plenary review over a district court’s interpretation of the Sentencing

Guidelines. United States v. Newsome, 439 F.3d 181, 184 (3d Cir. 2006). Our review of

the factual findings supporting a district court’s application of the Guidelines is for clear

error. United States v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006); United States v. Irvin,

369 F.3d 284, 286 n. 2 (3d Cir. 2004).




 1
  Indeed, this is one of the very few issues that Williams can appeal, given that he
waived the right to attack his conviction or sentence on all but the very narrow grounds
specified in his plea agreement.
 2
   The parties stipulated that the November 2003 version of the Guidelines was applicable
to this case.

                                              2
       Williams argues that the government failed to show by a preponderance of the

evidence that he engaged in a pattern of sexual abuse or exploitation and that the five-

level sentence enhancement was therefore in error. Williams contends that he never

“engaged in any actual or verifiable contact with any minor” that would trigger the

enhancement. (Appellant Br. at 22.) Rather, he claims that his conduct was limited to

sexually explicit conversations in online “chat rooms” about sexual encounters with

minors that were nothing more than fantasies. Moreover, his mere possession of child

pornography does not constitute sexual abuse or exploitation of a minor within the

meaning of § 2G2.2. See United States v. Ketcham, 80 F.3d 789, 794 (3d Cir. 1996).

       Implicit in Williams’s challenge is the erroneous view that actual contact with a

minor is required for the five-level enhancement of § 2G2.2(b)(4) to apply. The

Guidelines define “sexual abuse or exploitation” as “conduct constituting criminal sexual

abuse of a minor, sexual exploitation of a minor, abusive sexual contact of a minor, any

similar offense under state law, or an attempt or conspiracy to commit any of the above

offenses.” U.S.S.G. § 2G2.2 cmt. n.1 (emphasis added). Thus, even an unsuccessful

attempt to sexually abuse or exploit a minor is considered “sexual abuse or exploitation”

for Guidelines purposes. A “pattern of activity involving the sexual abuse or exploitation

of a minor” is defined as

              any combination of two or more separate instances of the
              sexual abuse or sexual exploitation of a minor by the
              defendant, whether or not the abuse or exploitation
              (A) occurred during the course of the offense; (B) involved

                                             3
              the same or different victims; or (C) resulted in a conviction
              for such conduct.

Id.

       The District Court applied the five-level sentence enhancement in this case based

on considerable evidence in the record showing that Williams attempted to engage in

sexual acts with minors that, if completed, would have been criminal sexual abuse.

Relying on hundreds of pages of Williams’s conversations in online chat rooms, the

District Court found that Williams (1) offered to pay a man for a sexual encounter with

his four-year-old daughter, (2) went to a Dairy Queen to meet a sixteen-year-old girl for

the purpose of a sexual encounter with her, (3) attempted to set up meeting times with

minors, and (4) conspired with several adults to have sexual contact with their minor

children. There is more than enough evidence in the record to support the District Court’s

conclusion that these incidents were attempts on the part of Williams to have sexual

encounters with minors. Taken together, such repeated attempts constitute a “pattern of

sexual abuse or exploitation” for purposes of § 2G2.2. Consequently, we will uphold the

District Court’s decision to apply the five-level enhancement.

       Williams raises no other challenges to the reasonableness of his sentence beyond

the proper calculation of the Guidelines range. We will therefore affirm the sentence.




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