                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0113p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 05-3159
           v.
                                                       ,
                                                        >
 JAMES R. HOCHSCHILD,                                  -
                              Defendant-Appellant. -
                                                      N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
                     No. 04-00228—John R. Adams, District Judge.
                                           Argued: January 26, 2006
                                    Decided and Filed: March 31, 2006
                    Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
                                              _________________
                                                    COUNSEL
ARGUED: Edward G. Bryan, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for
Appellant. Elizabeth Olson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee. ON BRIEF: Edward G. Bryan, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Michael A. Sullivan, UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        ROGERS, Circuit Judge. This case requires us to determine which of two U.S. Sentencing
Guidelines applies to the offense of crossing a state line with the purpose of having sex with a minor,
when both guidelines refer to attempting to have sex with a minor, but neither guideline refers to the1
particular crime of traveling in interstate commerce with the purpose of having sex with a minor.
Only one of the two guidelines applies when the defendant attempted to have sex with a minor under
12 years of age (U.S.S.G. § 2A3.1). The other guideline can only apply to an attempt where the
attempt was to have sex with a minor 12 years of age or older (§ 2A3.2). Because the defendant in
this case concededly traveled interstate with the purpose of having sex with a minor under 12 years

         1
          The issue is of limited future importance as the U.S. Sentencing Guidelines have since been amended so as
to provide specifically for such federal crimes involving travel to engage in sexual conduct with a minor. See U.S.S.G.
§ 2G1.3(c)(3) (effective November 1, 2004).


                                                          1
No. 05-3159           United States v. Hochschild                                              Page 2


of age, the more appropriate guideline is § 2A3.1. Moreover, application of the specific offense
characteristic of that guideline—that the offense involved a victim under 12—does not amount to
impermissible “double counting,” and is proper notwithstanding the fact that the prosecution arose
from a sting that involved no actual child. The district court therefore properly calculated the
guideline range in this case. However, we vacate defendant’s sentence and remand for resentencing
in light of the Supreme Court’s remedial holding in United States v. Booker, 543 U.S. 220 (2005).
         This case involved the second sting in which defendant James Hochschild was caught by
Special Agent Denis Guzy. Hochschild had previously ordered child pornography from Agent Guzy
over the internet, and was negotiating a plea on the charge of possession, when Hochschild
responded to another internet posting placed by Agent Guzy. Agent Guzy was posing as the father
of three children. Guzy offered Hochschild the opportunity to engage in sexual activity with two
of his fictitious female children. One fictitious child was nine, and the other was twelve. After
initial email correspondence, Hochschild agreed to meet Agent Guzy. They agreed that Hochschild
would travel from his home in Ohio to Pennsylvania to meet the girls and perform various sexual
acts. Hochschild equivocated in emails sent before the meeting, stating he only wanted to engage
in sexual activity “if the children were to his liking.” On December 14, 2002, Hochschild traveled
from Ohio to Pennsylvania to meet the children. In his plea Hochschild admitted he “believed that
he was meeting two real children to engage in sexual activity. He did not realize that his dialogue
was with a law enforcement officer.”
        Hochschild arrived at the Best Western Motel in Harrisburg, Pennsylvania to meet Agent
Guzy. In a conversation with Agent Guzy, Hochschild admitted to a “continuing intention to engage
in criminal sexual activity with the two children.” After conversing with Agent Guzy, Hochschild
was arrested. Later, in his plea, Hochschild described the type of sexual activities in which he
wanted to engage.
        As relevant to this appeal, Hochschild was charged with two counts of traveling in interstate
commerce for the purpose of engaging in sexual conduct with a minor under the age of 18. See 18
U.S.C. § 2423(b). The indictment specifically charged that the offense involved a victim under the
age of twelve. Hochschild pled guilty and admitted in the plea that the child was under twelve.
       The district court largely adopted the recommendation of the Presentence Investigation
Report (PSR). The PSR, using the 2002 Guidelines Manual, recommended that the district court
apply § 2A3.1, rather than § 2A3.2, with respect to the count involving the intent to have sex with
a nine-year-old. The PSR reasoned as follows:
       The Appendix A of the U.S.S.G. specifies that U.S.S.G. § 2A3.1, § 2A3.2, or
       § 2A3.3, is to be used for a violation of 18 U.S.C. § 2423 (b) as reflected in Counts
       3 and 4. U.S.S.G. § 2A3.1 pertains to an offense involving force or where the
       victims are under 12 years of age. U.S.S.G. § 2A3.3. pertains to criminal abuse of
       a ward. U.S.S.G. § 2A3.2 involves Criminal Sexual Abuse of a Minor Under the
       Age of 16 or an Attempt to Engage in Such Conduct. Count 3 involved a nine year
       old female child. Count 4 involved a 12 year old female child, with no force
       involved. Therefore, U.S.S.G. § 2A3.1, is the appropriate guideline for Count 3 and
       U.S.S.G. § 2A3.2 is the appropriate guideline for Count 4.
The district court ruled that § 2A3.1 was applicable on the alternative ground that a cross-reference
in § 2A3.2 referred back to § 2A3.1.
        The use of § 2A3.1 as opposed to § 2A3.2 had the effect of setting the base offense level at
27 instead of 24. The district court also applied a four-level enhancement because the victim was
under twelve years old, a two-level enhancement for use of a computer, and a two-level reduction
No. 05-3159               United States v. Hochschild                                                          Page 3


for acceptance of responsibility. The offense level was thus 31. Hochschild had no criminal history
and therefore had a criminal history level of I. The district court sentenced Hochschild to 135
months, which was the maximum number of months in the applicable guideline range.
        Hochschild filed a timely notice of appeal. He preserved all issues, except the alleged
violation of Booker, for appeal. We review de novo the legal issue of how the sentencing guidelines
should be interpreted. United States v. Herrera, 375 F.3d 399, 402 (6th Cir. 2004). With respect
to the Booker violation, we review for plain error because Hochschild raised that issue for the first
time on appeal. United States v. Hamm, 400 F.3d 336, 339 (6th Cir. 2005).
       The reasons given in the PSR fully support the district court’s sentencing of Hochschild
under U.S.S.G. § 2A3.1, and we need not reach the question whether,    as the district court held,
§ 2A3.2 in any event refers back to § 2A3.1 by cross-reference.2
        The first step in ascertaining the applicable guideline is to “refer to the Statutory Index
(Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for
the offense of conviction.” U.S.S.G. § 1B1.2(a); see United States v. Farrelly, 389 F.3d 649, 657-58
(6th Cir. 2004). The Statutory Index directs a sentencing court to three guidelines, §§ 2A3.1, 2A3.2,
and 2A3.3. U.S.S.G. App. A. Appendix A moreover specifies that “if more than one guideline
section is referenced for the particular statute, [the district court should] use the guideline most
appropriate for the offense conduct charged in the count of which the defendant was convicted.”
Intro., U.S.S.G. App. A; Farrelly, 389 F.3d at 658.
        Section 2A3.1 is the “most applicable” of the three guidelines. Section 2A3.3 is clearly not
applicable, and neither party argues that it is. Of the remaining     two guidelines, neither refers to
interstate travel with the intent to have sex with a minor.3 It is therefore not possible to determine
which of the two guidelines is more applicable by reading one as more applicable than the other to
the crime of travel-with-intent. Neither deals explicitly with travel-with-intent and both necessarily
apply by analogy. Section 2A3.1 applies to “Criminal Sexual Abuse” and to “Attempt to Commit
Criminal Sexual Abuse.” Section 2A3.2 applies to “Criminal Sexual Abuse of a Minor Under the
Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts.” The distinction between
the two guidelines is thus not that one applies to attempts and the other to completion of the sexual
abuse, nor is it a distinction between attempts and completions on the one hand and travel-with-
intent on the other. Instead, the difference between the two guidelines inheres in the culpability of
the conduct that is attempted or completed. It follows inescapably that the more applicable of the
two guidelines to travel-with-intent also depends on the same distinction. That is, where attempting
a particular act would result in application of one of the guidelines rather than the other, then travel-
with-intent to commit the same act should result in application of that guideline as well. No tenable
alternative presents itself for determining which of the two guidelines is more applicable to the crime
of travel with intent to have sex with a minor.
       With respect to attempts and completions, it is clear that § 2A3.1 applies to victims under
12, and that § 2A3.2 does not apply when the victim is under 12. The application note to § 2A3.1
provides that “[a]ny criminal sexual abuse with a child less than twelve years of age, regardless of
‘consent,’ is governed by § 2A3.1.” App. n.5. And, § 2A3.2 specifically provides a cross-reference


         2
          All references are to the 2002 Guidelines Manual. Neither of the parties has argued that the Guidelines Manual
for any other year should be used.
         3
          To the extent that the two guidelines mention travel at all, they do it in indistinguishable ways. Compare
§ 2A3.1(b)(6) (two-level enhancement for using false identity, or a computer, to facilitate travel by a minor or
participant), with § 2A3.2(b)(2)(A) (two-level enhancement for using false identity to facilitate travel by a minor or
participant).
No. 05-3159           United States v. Hochschild                                               Page 4


that states in part, “[i]f the victim had not attained the age of 12 years, § 2A3.1 shall apply,
regardless of the ‘consent’ of the victim.” While these statements are made in the context of
attempts and completions, and thus are open to literalist arguments that they do not govern travel-
with-intent cases, it can hardly be argued that § 2A3.1 is not at least more applicable than § 2A3.2,
when neither of the two guidelines applies explicitly to travel-with-intent. It follows that under the
2002 Guidelines, interstate travel with intent to have sex with a minor under 12 is governed by
§ 2A3.1 because that guideline is the “most applicable,” and we need not reach the various
arguments of the parties regarding the applicability of the cross-reference contained in § 2A3.2. The
district court therefore properly applied § 2A3.1 under the 2002 Guidelines.
        In applying § 2A3.1, the district court also properly applied the Specific Offense
Characteristic that the age of the victim was under 12. First, the age-related enhancement under
§ 2A3.1(b)(2)(A) was proper despite the fact that there was no real victim. It was proper to enhance
Hochschild’s sentence with an age-related enhancement regardless of whether the nine year old that
Hochschild thought he was meeting was real or fictional. This court has already held that the age-
related enhancement in § 2A3.1(b)(2)(A) is proper where the child victim was fictional but the
defendant believed that the victim was real. United States v. DeCarlo, 434 F.3d 447, 457-59 (6th
Cir. 2006). By his own admission, Hochschild believed the victims were real, and thus the
enhancement applies.
        Hochschild argues that § 2A3.1(b)(2)(A)’s four-level enhancement if the victim is under
twelve applies only to real victims. Hochschild’s argument relies largely on the fact that “victim”
is not specifically defined in § 2A3.1 (and is thus not defined to include undercover officers). In
DeCarlo, this court applied the age-related enhancement to a fictional victim in a factually
indistinguishable case, reasoning that an age-related enhancement for a fictitious victim is consistent
with the utilitarian purpose of the enhancement. See 434 F.3d at 459; accord Aaron Rappaport,
Rationalizing the Commission: The Philosophical Premises of the U.S. Sentencing Guidelines, 52
Emory L.J. 557, 642 (2003) (rationally reconstructing the sentencing guidelines and suggesting the
guidelines are based on a utilitarian justification for punishment). The district court did not err when
enhancing for a fictitious victim.
       Hochschild next argues that the use of the victim’s age to support both the application of
§ 2A3.1, which carries a higher base offense level, and an age-related enhancement pursuant to
§ 2A3.1(b)(2)(A), amounts to impermissible double counting. This argument is without merit.
        Generally, impermissible double counting may occur when identical conduct warrants two
enhancements under the Guidelines. See generally United States v. Farrow, 198 F.3d 179, 193-95
(6th Cir. 1999). Here, the age of the girl with whom Hochschild intended to have sex first rendered
§ 2A3.1 “more applicable” than § 2A3.2, and resulted in a Specific Offense Characteristic
enhancement of four levels. This combination of determining which guideline is applicable and
subsequent application of the terms of that very guideline does not, however, amount to
impermissible double counting. See United States v. Beith, 407 F.3d 881, 886-90 (7th Cir. 2005)
(collecting cases in footnote six). As the Seventh Circuit did in Beith, we reject Hochschild’s
argument for three reasons. First, the plain language of the Guidelines expressly directs this result.
Second, the application of § 2A3.1 (base offense level of 27) over § 2A3.2 (base offense level of 24)
does not amount to an enhancement, as the Guidelines must be applied as a whole. Finally, the bar
on double counting is not implicated because the Sentencing Commission in setting the base offense
level for § 2A3.1 did not account for the victim’s age. The base offense level of § 2A3.1 “represents
sexual abuse as set forth in 18 U.S.C. § 2242,” which includes various offenses involving victims
over 12. See § 2A3.1 cmt. background. Thus, enhancing for the victim’s age is not impermissible
double counting, and the district court properly applied the enhancement in this case.
No. 05-3159               United States v. Hochschild                                                         Page 5


         Hochschild is however entitled to resentencing under the remedial holding in Booker. The
district court erred by sentencing Hochschild under the erroneous assumption that the sentencing
guidelines were mandatory. Although Hochschild waived constitutional challenge to the guidelines
in the plea agreement, he did not waive statutory challenges to the application of the guidelines.
Regardless of whether the district court made constitutional error, the district court made statutory
error by sentencing Hochschild under the erroneous assumption that the guidelines were mandatory.
Because the explicit terms of Hochschild’s waiver do not cover the statutory error committed when
the district court sentenced under the erroneous assumption that the guidelines are mandatory, we
vacate Hochschild’s sentence and remand for resentencing consistent with Booker’s remedial
holding that the sentencing guidelines are advisory.
         The plea agreement stated:
         The Defendant understands that he may, but does not necessarily, possess a
         constitutional right to have certain factors under the U.S. Sentencing Guidelines
         included in a grand jury indictment and decided by a jury under proof beyond a
         reasonable doubt standard. Defendant knowingly, intelligently and voluntarily
         waives any rights he may posses to have such factors alleged in an indictment and
         determined by a jury. Defendant understands that, by virtue of this waiver, his
         sentence, and the existence of factors which may increase or affect his sentence, will
         be decided by the district court, without a jury. Defendant understands that the
         district court may rely upon stipulations in this plea agreement as well as any other
         reliable evidence, including hearsay, in making those determination. Defendant
         understands that he will be sentenced under the U.S. Sentencing Guidelines and
         waives any constitutional challenge to those guidelines and/or to the imposition of
         sentence under the Guidelines. Defendant acknowledges discussing this waiver and
         its consequences with counsel and understands the nature and consequences of this
         waiver.
J.A. 44-45 (emphasis added). We interpret the italicized portion as a waiver of constitutional
challenge to  the guidelines both as a whole and as to the imposition of a sentence under the
guidelines.4 Nevertheless, the waiver cannot be read to cover statutory rights which flowed from
Booker’s remedial holding. As the district court noted in the plea colloquy, the plea agreement
permits Hochschild to appeal “any legal determination . . . regarding the guidelines and the
specifications [and] how they apply.” J.A. 138.
       Hochschild has both constitutional and statutory rights under Booker. In Booker, the
Supreme Court consolidated the cases of Booker and Fanfan. The Court held that Booker’s Sixth
Amendment rights were violated because his sentence was increased based on judge-found facts not
submitted to a jury under a mandatory sentencing regime. Booker, 543 U.S. at 244. Instead of
invalidating the guidelines, the Court prevented future Sixth Amendment violations in this situation
by severing the sections that made the guidelines mandatory. Id. at 245. The severance remedy is
applicable to all cases on direct review. Id. at 268. Unlike Booker, Fanfan’s sentence was not
increased based on judge-found facts and thus did not violate the Sixth Amendment. Id. at 267-68.
Because Fanfan was sentenced under the erroneous assumption that the guidelines were mandatory,
the Court held that the district court had violated Fanfan’s statutory right to be sentenced under the
advisory guidelines. Either the government or Fanfan could seek remand for resentencing under the
advisory guidelines. Id. at 267.


         4
          While both parties rely on United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005), Bradley is not
applicable in this case because there was no appeal waiver. United States v. Puckett, 422 F.3d 340, 343 (6th Cir. 2005)
(citing United States v. Amiker, 414 F.3d 606, 607 (6th Cir. 2005)).
No. 05-3159           United States v. Hochschild                                             Page 6


        Hochschild’s sentence, like Fanfan’s sentence, violates the remedial holding in Booker. Id.
In the instant case, we do not rule on whether the district court violated Hochschild’s Sixth
Amendment rights because Hochschild waived those rights. See United States v. Olano, 507 U.S.
725, 733 (1993). Like the district court in Fanfan, the district court computed Hochschild’s sentence
under the erroneous assumption that the guidelines were mandatory. Under the language in the plea
agreement Hochschild has not waived nonconstitutional (i.e., statutory) rights such as erroneous
application of the sentencing guidelines. Applying Booker, this court has granted remand in cases
where there has been no violation of the defendant’s constitutional rights because the district court
erroneously sentenced a defendant under the assumption that the guidelines were mandatory. See,
e.g., United States v. Hazelwood, 398 F.3d 792, 800-01 (6th Cir. 2005). Thus, Hochschild is entitled
to remand for resentencing under the now-advisory guidelines based on the district court’s
nonconstitutional sentencing error.
       For the foregoing reasons, we affirm the district court’s application of the sentencing
guidelines, vacate Hochschild’s sentence, and remand for resentencing in light of Booker’s remedial
holding that the guidelines are no longer mandatory.
