                  United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT




                               ___________

                               No. 98-3228
                               ___________

United States of America,           *
                                    *
              Plaintiff -           *
              Appellant,            *
                                    * Appeal from the United States
     v.                             * District Court for the Eastern
                                    * District of Missouri
Michael Eugene Pharis, Sr.,         *
                                    *
             Defendant -            *
             Appellee.              *



                               ___________

                   Submitted:     March 9, 1999

                          Filed: May 3, 1999
                               ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
     SACHS,1 District Judge.

                               ___________

SACHS, District Judge.


     Michael Eugene Pharis was charged with and pleaded guilty to
two counts of interstate distribution of child pornography in
violation of 18 U.S.C. § 2252(a)(1) and (2), and to one count of
possession   of   child    pornography   in   violation   of   18   U.S.C.



     1
      The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri, sitting by designation.
§ 2252(a)(4)(B).    The district court2 sentenced Pharis to 57 months
in prison.   The United States appeals Pharis' sentence, claiming
inadequacy because it resulted from an incorrect application of the
United   States    Sentencing    Guidelines     ("U.S.S.G.").   We   have
jurisdiction under 18 U.S.C. § 3742(b), and we affirm.


                            I.     BACKGROUND


     Pharis, a 39-year-old man living in Georgia, in early 1998
engaged in communications over the Internet with a person he
believed to be a 13-year-old girl named Wendy.         He transferred via
the Internet to "Wendy" multiple depictions of child pornography,
described his prior sexual contacts with girls under the age of
twelve, and eventually arranged to meet "Wendy" at her home near
St. Louis, Missouri, presumably to have sexual relations with her
and to photograph her.3         "Wendy" was in fact not a 13-year-old
girl, but rather two persons; first, an adult male investigator
with the Missouri Department of Social Services and, later, an
adult female Maryland Heights, Missouri, police officer.          Pharis
was arrested when he reached what he believed to be "Wendy's"
house.   Police officers seized Pharis' computer and found numerous
files containing child pornography.


     Pharis was indicted on two counts of distribution of child
pornography and one count of possession.         He pleaded guilty to all
three counts.     The district court determined Pharis' offense level
to be 22, pursuant to U.S.S.G. § 2G2.2.            With Pharis' criminal
history category of II, that determination resulted in a sentencing



     2
      The Honorable Donald B. Stohr, United States District Judge
for the Eastern District of Missouri.
     3
      Found in Pharis' car were items such as baby oil, condoms,
and a Polaroid camera with five rolls of film.

                                    -2-
range of 46 to 57 months in prison.    The district court sentenced
Pharis to 57 months.


     The United States sought a two-level increase under U.S.S.G.
§ 3B1.4 because, in its view, Pharis "used or attempted to use a
person less than eighteen years of age to commit the offense or
assist in avoiding detection of, or apprehension for, the offense."
The United States also sought a five-level increase pursuant to
U.S.S.G. § 2G2.2(b)(4), which applies where "the defendant engaged
in a pattern of activity involving the sexual abuse or exploitation
of a minor."   The district court denied both requests for upward
adjustment of the offense level, concluding that the respective
sections of the Sentencing Guidelines did not apply. We review the
district court's interpretation and application of the Sentencing
Guidelines de novo.    United States v. Akbani, 151 F.3d 774, 777
(8th Cir. 1998).
                          II.   DISCUSSION
                                 A.
     The United States first appeals the district court's denial of
the two-level increase in offense level under U.S.S.G. § 3B1.4. It
contends that since Pharis believed that he was transferring child
pornography to a 13-year-old girl, and since he instructed her not
to tell her parents, that he "attempted to use a person less than
eighteen years of age. . . ."   Pharis, on the other hand, contends
that since the person Pharis in fact attempted to use was not less
than 18 years old, this section is inapplicable.    Moreover there
was no real child to be victimized.


     There is a patent ambiguity in the "attempted to use a
[minor]" language of this section of the Sentencing Guidelines.
The Government contends the defendant's abstract intention is
sufficient; Pharis contends the reference must be to an actual
person who meets the description. Either reading of the section is


                                 -3-
plausible.   Where ambiguities such as this exist, the rule of
lenity dictates that the ambiguity be resolved in favor of the
defendant.   Bell v. United States, 349 U.S. 81, 83 (1955); United
States v. Lazaro-Guadarrama, 71 F.3d 1419, 1421 (8th Cir. 1995)
(ambiguity in Sentencing Guidelines); United States v. Jones, 908
F.2d 365, 367 (8th Cir. 1990) (same).   Thus, the district court was
correct in finding § 3B1.4 inapplicable and denying the two-level
increase.


     The United States claims that this result fails to account for
all of the harm potentially resulting from Pharis' conduct.   While
Pharis intended that the pornographic material he transferred be
received by a minor, his sentence is no different than that of a
person who had intended to transfer the material to another adult.
If the district court had found that the Sentencing Commission did
not adequately take this circumstance into account in formulating
the Sentencing Guidelines, it could have considered an upward
departure.   Jones, 908 F.2d at 367.     The United States did not
request an upward departure on this ground, and thus no upward
departure was considered on this basis.4


                                B.
     The Government also challenges the trial court's denial of a
five-level increase in offense level based upon a finding that
§ 2G2.2(b)(4) was inapplicable to Pharis.        It contended that
Pharis' prior conduct constituted a "pattern of activity involving
the sexual abuse or exploitation of a minor."      (emphasis added)
Pharis was convicted in state court in 1981 of four misdemeanor
counts of making obscene telephone calls to young girls, and was
convicted in state court in 1982 for felony "child molestation"



     4
      The Government also has ready access to the Commission if a
more severe clarifying amendment is desired.

                               -4-
involving Pharis' exposure of his genital area to three female
children on separate occasions.


     Application Note 1 corresponding to U.S.S.G. § 2G2.2(b)(4)
provides as follows:
     "Sexual abuse or exploitation" means 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.       "Sexual abuse or
     exploitation" does not include trafficking in material
     relating to the sexual abuse or exploitation of a minor.

This definition tracks the titles of the federal offenses in
18 U.S.C. §§ 2241-46, and 18 U.S.C. § 2251.       All of these offenses
involve either physical sexual contact with children (see 18 U.S.C.
§§ 2241-46) or the creation of child pornography (18 U.S.C. §
2251), neither of which occurred in the course of Pharis' prior
conduct leading to these convictions.        While the Application Note
allows consideration of "similar offenses under state law," we
conclude that the reference must be to offenses of substantially
the same magnitude or severity.       Sexual abuse or exploitation in
some manner rather than sexual harassment is required, in our
judgment, to establish similarity.       Therefore, even though Pharis'
1982 convictions bore the label of "child molestation," which by
its title might appear to be similar to "sexual abuse or exploita-
tion," there was no physical sexual contact with any children, nor
was there any use of minors in an obscene or pornographic manner.
We agree with the district court's appraisal that the § 2G2.2(b)(4)
enhancement was inapplicable.


     Again, the United States claims that this application of the
Sentencing Guidelines fails to consider all of the potential harm
of Pharis' conduct; he was sentenced as if he had never been
convicted   of   any   previous   offenses   involving   sexual   conduct
directed toward minors.     We are aware of the considerable public


                                   -5-
concern that sexual predators endanger society and of a correspond-
ing desire that a substantial period of imprisonment be used to
incapacitate recidivists.             This doubtless motivates the double
counting of criminal history in cases where there is a background
of   sexual    abuse    or   exploitation     of    minors.5    The   five-point
enhancement prescribed by the Sentencing Commission would, however,
add some 40 months to the maximum recommended prison time.                    If
public policy would be advanced by a special enhancement for the
danger of recidivism posed by this record of obscene telephone
calls and indecent exposure in the early 1980s, we believe the
district court's departure powers and the Sentencing Commission's
authority to prescribe an intermediate form of enhancement, fewer
than the five points now prescribed when there is an exploitation
history, may well be adequate in cases like this one.                 We further
note the availability of state law prosecutions.


      We   conclude     there   was    no   error   in   the   district   court's
application of the Sentencing Guidelines.                Accordingly, the 57-
month sentence is legally sound, and the judgment is affirmed.


      A true copy.


              Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




      5
      Both the offense level and the criminal history category
will be affected, in an appropriate case, by a defendant's
convictions of specified crimes.

                                        -6-
