                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             December 28, 2005
                                No. 04-15944
                                                             THOMAS K. KAHN
                          ________________________               CLERK

                   D. C. Docket No. 04-00225-CR-T-24-MAP

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

JOSEPH HAYNES,

                                                            Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                              (December 28, 2005)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      Defendant Joseph Haynes appeals his conviction and 78-month sentence for

knowingly attempting to persuade, induce, entice, and coerce a minor to engage in
prohibited sexual activity, in violation of 18 U.S.C. § 2422(b). After review and

oral argument, we affirm Haynes’s conviction, but vacate his sentence.

                                I. BACKGROUND

      On April 12, 2004, Haynes, a resident of Tampa, Florida, logged onto the

internet and entered a teen chatroom for “Young Teens for Older Men.” Haynes

instant messaged “kaci_fl_gurl,” whose profile stated that she was a fourteen-year-

old girl who lived in Tampa and was interested in “cheering, dancing, shopping,

movies, going 2 da beach.” “Kaci” in fact was Innocent Images Task Force

Special Agent William Holland.

      Haynes and Kaci engaged in a chat, in which Haynes repeatedly told Kaci

that he wanted to meet her and that he wanted to lick her in a clearly sexual

manner. Kaci referred to herself as being 14 years old, and Haynes told Kaci that

he was 39. Kaci repeatedly talked about her mother finding out and getting caught

and stated that her mother would “flip” over her talking to a 39-year-old. The two

also discussed meeting at McDonald’s.

      Haynes and Kaci engaged in four more chats, in which Kaci repeatedly

mentioned her age and hiding their relationship from her mother. At one point

Kaci asked Haynes if he had ever had a girlfriend her age before, and he responded

“no . . . 17, 18 and 20 but not quite ur age.” Haynes continued to tell Kaci that he



                                          2
wanted to lick her “head to toe” and told her in explicit terms that he wanted to

make her orgasm by licking her genitals. Haynes and Kaci finalized a plan to meet

in the parking lot at a McDonald’s restaurant at 3 p.m. on April 20, 2004. Haynes

told Kaci that he would be waiting for her in his silver Jeep. He also suggested

they eat dinner and maybe see a movie, and he asked her if she liked Chinese food.

         Although Kaci and Haynes both were in the Tampa area, their electronic

communications were routed through Yahoo’s servers in Washington, D.C.

         On April 20, 2004, around 3 p.m., Haynes arrived at the designated

McDonald’s parking lot driving a silver Jeep. At that time, officers arrested

Haynes. Haynes told the officers that he was there making telephone calls and

getting a drink.

         In Haynes’s Jeep, officers discovered a loaded gun, 92 rounds of

ammunition, condoms, and a Chinese restaurant menu. Officers also executed a

search warrant at Haynes’s home, where they seized a computer tower from

Haynes’s home office and a day planner containing the following entry for April

20, 2004: “3:00 p.m. Kacie.” A forensic examination of the computer revealed

twelve images of child pornography and the internet profiles of various teenage

girls.

         Based on this conduct, Haynes was convicted by a jury of one count of



                                           3
coercion or enticement of a minor to engage in sexual activity, in violation of 18

U.S.C. § 2422(b). The district court presented the jury with a special verdict form

including the following question: “Did the offense involve the knowing

misrepresentation of Defendant’s identity (may consider such factors as name, age,

occupation, gender or status) to persuade, induce, entice, or coerce the victim to

engage in prohibited sexual conduct?” The jury answered this question “No.”

      Haynes’s base offense level was 21. See U.S.S.G. § 2A3.2(a)(2) (2003).1

Haynes received these three enhancements: (1) a two-level enhancement because

he used a computer and the Internet, see U.S.S.G. § 2A3.2(b)(3); (2) a two-level

enhancement because he “otherwise unduly influenced the victim to engage in

prohibited sexual conduct,” see U.S.S.G. § 2A3.2(b)(2)(B); and (3) a two-level

enhancement for obstruction of justice based on his testimony at trial that the chat

room “Young Teens for Older Men” was an adult rather than a teen chat room.

See U.S.S.G. § 3C1.1. With an adjusted offense level of 27 and a criminal history

category I, Haynes’s guidelines range was 70-87 months. The district court

sentenced Haynes to 78 months’ imprisonment.

                                         II. DISCUSSION

      On appeal, Haynes raises the following arguments: (1) the district court



      1
          All citations are to the 2003 version of the guidelines.

                                                   4
erred in denying Haynes’s motion to suppress because the search warrant was

overly broad; (2) the cumulative impact of the district court’s evidentiary rulings

denied Haynes’s rights to due process and a fair trial; (3) the district court

improperly instructed the jury that the internet is an instrumentality of interstate

commerce; (4) the district court violated Haynes’s right against double jeopardy by

imposing an enhancement under U.S.S.G. § 2A3.2(b)(3) based on the same facts

(use of a computer and the Internet) establishing an essential element of the crime

of conviction; (5) the district court improperly applied an enhancement under

U.S.S.G. § 2A3.2(b)(2), in violation of United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005); and (6) Haynes’s intrastate internet chats are an insufficient

basis for federal jurisdiction. Only the motion-to-suppress issue and the sentencing

issues warrant discussion.

A. Motion to Suppress

       Haynes argues that the district court erred in denying his suppression motion

and allowing child pornography images recovered from Haynes’s home computer

to be introduced at trial.2 The images were recovered during a search of Haynes’s

home pursuant to a warrant. Haynes asserts that the warrant was overly broad, and


       2
         “We apply a mixed standard of review to the denial of a defendant’s motion to suppress,
reviewing the district court’s findings of fact for clear error and its application of law to those
facts de novo.” United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.), cert. denied, 126 S. Ct.
732 (2005).

                                                 5
not supported by probable cause, to the extent it allowed for the seizure of all

computers and computer hardware as well as all “digital data files pertaining to the

possession, receipt, or distribution of child pornography.” He does not contest that

probable cause supported the warrant to search his home for evidence of enticing a

minor to engage in sexual conduct, including evidence on his computer. However,

he argues that the enticement conduct is different than child pornography, and

there was no probable cause to support a search for child pornography.

      The government responds that there was probable cause for the search

warrant and it was not overly broad. Agent Holland testified at the suppression

hearing that “people interested in engaging in sex with a minor oftentimes have

pictures of children.” Agent Holland did not include this statement in his affidavit

supporting the search warrant, and both he and the government conceded that he

should have explained the connection in his affidavit. Nevertheless, the

government argues that, because a connection exists between enticing minors to

engage in sexual conduct and possession of child pornography, there was probable

cause to support the warrant’s inclusion of child pornography. According to the

government, “[c]ommon sense dictates that there is a reasonable probability that an

adult male who has expressed an interest in engaging in sexual activity with a

minor . . . would possess child pornography or child erotica.”



                                           6
      However, we need not decide whether the search warrant was overly broad

because the evidence is admissible under the good-faith exception to the

exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405

(1984). This Court has explained that Leon “stands for the principle that courts

generally should not render inadmissible evidence obtained by police officers

acting in reasonable reliance upon a search warrant that is ultimately found to be

unsupported by probable cause.” United States v. Martin, 297 F.3d 1308, 1313

(11th Cir. 2002). Thus, suppression is necessary “only if the officers were

dishonest or reckless in preparing their affidavit or could not have harbored an

objectively reasonable belief in the existence of probable cause.” Id. (quotation

marks and citation omitted).

      There is no doubt that “[t]he good faith exception may be applied to a search

conducted pursuant to an overly broad warrant.” United States v. Travers, 233

F.3d 1327, 1330 (11th Cir. 2000). The officers here clearly acted in reasonable

reliance upon the warrant. Indeed, on appeal, Haynes does not even argue, much

less show, that any of the exceptions to the good-faith doctrine applies.

Consequently, the district court did not err in denying the suppression motion and

admitting the child pornography evidence.

B. Double Jeopardy Issue



                                          7
         On appeal, Haynes asserts that his enhancement under U.S.S.G. §

2A3.2(b)(3) for his use of a computer and the Internet violates his double jeopardy

rights.3 Essentially, Haynes argues that because his conviction was for using a

computer to entice a minor, his sentence could not be enhanced for using a

computer and the Internet to entice a minor. However, the double jeopardy clause

does not prohibit a single course of conduct from serving as the basis for both a

predicate offense and an enhancement. See United States v. Strickland, 261 F.3d

1271, 1274 (11th Cir. 2001).

         Likewise, there is no double counting in this case. Haynes’s base offense

level did not take into account his use of a computer and the Internet. Therefore, it

was appropriate for the district court to apply the two-level enhancement under

§ 2A3.2(b)(3). See United States v. Perez, 366 F.3d 1178, 1183-84 & n.6 (11th

Cir. 2004).

C. Booker Issue

         On appeal, Haynes challenges the two-level enhancement he received

pursuant to U.S.S.G. § 2A3.2(b)(2). Before discussing Haynes’s arguments on

appeal, we outline what § 2A3.2(b)(2) provides and what happened in the district

court.


         3
        Because Haynes did not raise this issue before the district court, we review for plain
error only. See United States v. Miranda, 197 F.3d 1357, 1358-59 (11th Cir. 1999).

                                                 8
       A two-level enhancement is warranted under subsection (A) of §

2A3.2(b)(2) if “the offense involved the knowing misrepresentation of a

participant’s identity to (i) persuade, induce, entice, or coerce the victim to engage

in prohibited sexual conduct.” U.S.S.G. § 2A3.2(b)(2)(A)(i) (emphasis added). In

contrast, subsection (B) of § 2A3.2(b)(2) authorizes a two-level enhancement if “a

participant otherwise unduly influenced the victim to engage in prohibited sexual

conduct.” U.S.S.G. § 2A3.2(b)(2)(B). According to the commentary to subsection

(B), if the defendant is at least 10 years older than the victim, a rebuttable

presumption exists that the defendant unduly influenced the victim to engage in

prohibited sexual conduct. See U.S.S.G. § 2A3.2 cmt. n.4 (Misrepresentation of

Identity).

       Thus, subsection (A) focuses on a defendant’s knowing misrepresentation

enticing the victim and subsection (B) focuses on the age difference between the

defendant and the victim and other factors that might unduly influence a victim.

Although the jury returned a guilty verdict as to Count I, the district court

submitted a special verdict that asked a question relevant to subsection (A) of §

2A3.2(b)(2). The first question the jury was directed to answer was: “Did the

offense involve the knowing misrepresentation of Defendant’s identity (may

consider such factors as name, age, occupation, gender or status) to persuade,



                                            9
induce, entice, or coerce the victim to engage in prohibited sexual conduct?” The

jury answered “No.” The question to the jury essentially tracked the language of

subsection (A) of § 2A3.2(b)(2).

      After the jury’s verdict, the PSI, in paragraph 20, recommended a two-level

enhancement pursuant to only § 2A3.2(b)(2)(B), stating as follows:

      Mr. Haynes represented himself as a 39 year old man to “Kaci” who
      reported herself to be a 14 year old female. However, Mr. Haynes
      was in fact 47 years old. The defendant’s age in this matter generates
      an undue influence over the victim. Thus, the increase applies.
      U.S.S.G. § 2A3.2(b)(2)(B).

While the PSI focused mainly on the age difference as the justification for the two-

level enhancement under subsection (B), the PSI also noted that the defendant had

represented that he was 39 when in fact he was 47.

      At sentencing, the district court inquired about the defendant’s objection to

the two-level enhancement under § 2A3.2(b)(2)(B). Defense counsel claimed that

the two-level enhancement should not apply because “there’s no way to rebut that

ten-year gap [as] there is no victim.” The district court then asked defense counsel:

“Well, don’t you also want to object based on the – on the verdict of the jury?

Because wasn’t this a specific question we sent to the jury in question number

one.” Defense counsel responded in the affirmative.

      In evaluating whether the two-level enhancement under subsection (B)



                                         10
applied, the district court first noted that when “a participant is at least ten years

older than the victim – which is the case here – there shall be a rebuttable

presumption for purposes of (b)(2)(B) that such participant unduly influenced the

victim . . . .” The district court then stated that “[c]learly there was a

misrepresentation by the defendant as to his age” and that “[c]learly, there’s more

than ten years between the alleged victim and the defendant.”

       The district court then made a finding that the enhancement under subsection

(B) applied, and, in doing so, treated the jury’s special verdict as relevant to

subsection (B). Specifically, the district court stated “that I can make this finding

beyond – by a preponderance of the evidence even though the jury found no by

‘beyond a reasonable doubt.’ I think it clearly should be applied, and I make that

finding by a preponderance of the evidence.”

       In his brief on appeal, Haynes arguably raises two separate issues with

regard to his two-level enhancement under § 2A3.2(b)(2). Haynes first argument is

that the district court violated Booker by imposing an enhancement based on

Haynes’s misrepresentation of his age to a minor, notwithstanding that the jury

expressly rejected the factual basis for that enhancement in its special verdict.4



       4
       In the district court, Haynes explicitly raised constitutional issues under Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and, thus, we review his Booker claim de
novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

                                               11
However, the age-misrepresentation enhancement is set forth in § 2A3.2(b)(2)(A).

See U.S.S.G. § 2A3.2(b)(2)(A). To the extent Haynes is challenging any

enhancement under § 2A3.2(b)(2)(A), his challenge is without merit because the

district court did not impose an enhancement under § 2A3.2(b)(2)(A).

       More importantly, as to the enhancement under § 2A3.2(b)(2)(B), which the

district court did impose, there is no requirement that the defendant misrepresent

his age. Despite the parties and the district court treating the jury’s special verdict

as relevant to subsection (B), it is clear that the jury’s special verdict is not relevant

to subsection (B).

       Haynes’s second argument is basically a constitutional Booker claim. In his

opening brief, Haynes argues that this sentencing enhancement “violated the rule

of Apprendi, Blakely, and Booker, that any fact that raises a defendant[’]s sentence

must be proven to a jury beyond a reasonable doubt.”5

       In this case, we conclude that Haynes has shown constitutional Booker error.

Although it is undisputed that there was more than a 10-year gap between Haynes

and his intended victim, this age difference supplies only a presumption that the

enhancement under § 2A3.2(b)(2)(B) applies. Because Haynes did not admit that



       5
       In the Booker section of his brief, Haynes cites only to U.S.S.G. § 2A3.2(b)(2). Thus,
we conclude that Haynes has not raised a constitutional Booker challenge to any of his other
enhancements.

                                              12
the age difference actually influenced his intended victim (indeed, he challenged

the enhancement under § 2A3.2(b)(2)(B)), Haynes did not admit to all the

necessary facts in § 2A3.2(b)(2)(B). While there was sufficient evidence for the

district court to make its fact finding of undue influence, the district court

nonetheless applied that extra-verdict enhancement under a mandatory guidelines

scheme, and, thus, Haynes has demonstrated constitutional Booker error.6

       However, this Court may still affirm Haynes’s 78-month sentence if the

government establishes that any constitutional error was harmless.

“[C]onstitutional errors are harmless where the government can show, beyond a

reasonable doubt, that the error did not contribute to the defendant’s ultimate

sentence.” United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). In

this case, the government has not shown that any constitutional error was harmless.

       Accordingly, we vacate Haynes’s 78-month sentence and remand this case

for the limited purpose of resentencing Haynes under an advisory guidelines

system. The district court correctly calculated Haynes’s guidelines range as 70 to



       6
         In Booker, the Supreme Court held that Blakely v. Washington, 452 U.S. 296, 124 S. Ct.
2531 (2004), applied to the Sentencing Guidelines. United States v. Rodriguez, 398 F.3d 1291,
1297-98 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). “[T]he Sixth Amendment right to trial
by jury is violated where under a mandatory guidelines system a sentence is increased because of
an enhancement based on facts found by the judge that were neither admitted by the defendant
nor found by the jury.” Id. The constitutional error is not because there were extra-verdict
enhancements; rather, “[t]he error is that there were extra-verdict enhancements used in a
mandatory guidelines system.” Id. at 1300.

                                               13
87 months and need not revisit the guidelines calculations. On remand, the district

court is simply required to sentence Haynes under an advisory guidelines regime,

and shall consider the guidelines range of 70 to 87 months’ imprisonment and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp.2004).”

Booker, 125 S. Ct. at 757.7

       CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.




       7
        We do not mean to imply that on remand the district court must impose a different
sentence. Rather, we merely hold that the government has failed to meet its burden to show that
the Booker constitutional error of sentencing under a mandatory guidelines regime was harmless.
We also will not attempt to decide now whether a particular sentence below or above the
guidelines range might be reasonable in this case. If there is an appeal of the actual post-remand
sentence which raises that issue, we can decide it then.

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