                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0615n.06

                                       Case No. 19-1140

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                 FILED
UNITED STATES OF AMERICA,                          )                        Dec 13, 2019
                                                   )                    DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE WESTERN DISTRICT OF
JASON HARRY BISHOP,                                )      MICHIGAN
                                                   )
       Defendant-Appellant.                        )


       BEFORE: MOORE, CLAY, and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. Ours is a nation of second chances, sometimes third and fourth

chances too. But Jason Bishop’s conviction for transporting child pornography marks his fifth for

child predation. In view of Bishop’s criminal history, the district court gave him a five-level

sentence enhancement for his “pattern of activity involving the sexual abuse or exploitation of a

minor.” U.S.S.G. § 2G2.2(b)(5). Bishop argues that his prior convictions—which included

soliciting minors for sex—should not count as “abuse or exploitation.” Unwilling to accept that

interpretation, we affirm.

       On January 27, 2017, 50-year-old Jason Bishop crossed the three miles of bridge that

separate Sault Ste. Marie, Michigan from Sault Ste. Marie, Ontario. Upon arriving in Canada, he

made routine contact with border patrol. Something about this interaction piqued the officers’

interest. Hoping to learn more about the nature of his trip, the contents of his vehicle, and his

criminal history, they held him for a second inspection. Bishop then provided his phone to an
Case No. 19-1140, United States v. Bishop


officer. Browsing his pictures and messages, the officers found an image of sadomasochistic child

pornography. They took Bishop into custody.

       Things got worse. The officers found in his car “more than 45 sex toys” next to “children’s

toys,” “passes for various amusement parks,” and a notebook with the contact information of

minors and the information for a page called “hot boys on facebook.” R. 15 at 5. Added to that

collection were 198 images of child pornography and 330 compromising photos of children found

on his phone, laptop, and thumbdrive. They also identified his Dropbox account, which contained

180 folders bearing such labels as “jason h bishop’s pedophile collection.” Id. at 6. During his

interview, Bishop did not mince words about his preferred age of sexual partners: thirteen to

fourteen. And he was not shy about his reasons for travelling to Canada: the “age of consent was

14,” and Canada’s “laws against child pornography” were comparatively lax. Id. at 5. Canada

imprisoned him for thirteen months before returning him to the United States.

       Upon Bishop’s return, federal prosecutors charged him with transporting child

pornography in interstate commerce. See 18 U.S.C. §§ 2252A(a)(1), (b)(1); 2256(8)(A). Bishop

struck a deal. In exchange for pleading guilty, the government would not oppose his request for a

two-level reduction for acceptance of responsibility. The government also agreed to move for a

third point of reduction should the court grant his initial request. Bishop knew that his sentence

would depend on many factors, including his criminal history, and that the only thing he could

count on would be a sentence within the statutory range.

       Bishop’s presentence report revealed a sordid history of sexual misconduct involving

minors. The first (known) trouble occurred in 1994 when Bishop, then age 28, handed notes to

eight minors carrying this message: “Hi. My name’s Jason. I think you’re hot and I want to

[perform an obscene act on you].” R. 15 at 11. When all eight reported him to authorities, he was



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convicted of two counts of soliciting a minor and five counts of making an indecent proposal to a

child. He was then released on parole, only to be caught talking to a fifteen-year-old boy outside

the boy’s home and offering him a music store gift card. Bishop was sent back to prison, where

he wrote letters and mailed pornography to the underage son of the president of a prominent

university. That earned a conviction for distributing indecent materials to a minor.

       After these sentences ended, new encounters began. He handed a thirteen-year-old boy

walking home from middle school this note: “Hey dude, you look hot! I want to [perform an

obscene act on you]! My name is Jason Bishop. Come to me at [Bishop’s address], or call me on

my mother’s cell phone at [phone number]. I’ll do anything you want, dude! Please contact me

A.S.A.P.!” Id. at 16. Like the eight teenagers who came before him, the boy turned Bishop in.

When officers arrested Bishop, they found an obscene message on him—apparently meant for a

teenage boy working at a nearby gas station—professing his love for having sex with teenagers

and offering money in exchange for sexual favors. Officers also searched his home and found

“more than 200” images of naked children. Id. at 17. He was convicted of annoying or molesting

a child and of possessing child pornography. While serving that sentence, he had his parole

revoked on at least eight occasions. Some of these revocations involved sexual misconduct.

       That takes us to Bishop’s 2010 conviction, which he received for texting and writing

obscene letters to a fourteen-year-old boy. The conversation soon “got dirty,” with Bishop asking

the boy lewd questions, requesting sexual favors, and encouraging him to “come visit him.” Id. at

19. Bishop discussed “send[ing] [the boy] a plane ticket” so he could “come and live with him.”

Id. And he persuaded the boy to send him nude photographs. Bishop was convicted of exhibiting

harmful material to a minor and child molesting. Back to prison he went. Before his most recent

release, authorities revoked his parole four additional times.



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       The presentence report, prepared after his guilty plea to transporting child pornography,

recommended a five-level enhancement for this “pattern of activity involving the sexual abuse or

exploitation of [] minor[s].” U.S.S.G. § 2G2.2(b)(5). Bishop objected to the enhancement,

insisting that, while some of his past convictions involved soliciting minors for sex, he had not

attempted to engage in sexual activity and thus had not engaged in “abuse or exploitation.” The

district court did not buy it, instead finding that Bishop had committed relevant attempts when he

“hand[ed] out [] actual invitations [to consummate sex acts] directly to people, including the

minors.” R. 29 at 24. It applied the pattern-of-activity enhancement and sentenced Bishop to 240

months—the statutory maximum. The judge added that, even if he had come out the other way on

the enhancement, he would have “var[ied] up” to the statutory maximum. R. 29 at 43, 45. Bishop

appealed.

       Bishop’s sole argument is that the district court erred in applying a five-point sentencing

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

a minor.” U.S.S.G. § 2G2.2(b)(5). We give clear-error review to the court’s factual findings and

fresh review to its legal rulings. See United States v. Kamper, 748 F.3d 728, 748 (6th Cir. 2014).

       The appeal turns on the meaning of two phrases in § 2G2.2(b)(5). One phrase, “pattern of

activity,” means “any combination of two or more separate instances” of abuse or exploitation. Id.

cmt. n.1. “[S]exual abuse or exploitation,” the other phrase, encompasses three sorts of behavior:

(a) conduct described in ten federal criminal statutes; (b) state law offenses that would constitute

one of these offenses if “the offense had occurred within the special maritime or territorial

jurisdiction of the United States”; and (c) an “attempt or conspiracy” to commit any of the offenses

covered by the previous subsections. Id. In applying these criteria, we look to a defendant’s

conduct, not to whether he was convicted for it. Id.



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       One offense enumerated in § 2G2.2 is especially relevant. Section 2422(b) of Title 18 bars

anyone from “attempt[ing]” to “knowingly persuade[], induce[], entice[], or coerce[] any

individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which

any person can be charged with a criminal offense.” An attempt requires the government to prove

that (1) “the defendant had the intent to commit criminal solicitation of a minor,” and (2) that the

defendant “took a substantial step towards committing that crime.” United States v. Roman, 795

F.3d 511, 517 (6th Cir. 2015). The law reflects a “clear choice” to criminalize “persuasion and

the attempt to persuade,” not just the “performance of the sexual acts themselves.” United States v.

Bailey, 228 F.3d 637, 639 (6th Cir. 2000).

       All of this means that, if Bishop had twice before engaged in acts that could have been

prosecuted under § 2422(b), the district court properly applied the five-level enhancement. The

court easily cleared that hurdle. On at least three separate occasions, Bishop approached minors

and handed them notes propositioning them for sex. The court had ample reason to find that these

notes conveyed an intent to solicit and that this conduct constituted a “substantial step” towards

the commission of the offense, crossing the threshold from “mere preparation” to the

“consummation of the crime.” Bailey, 228 F.3d at 640 (quoting United States v. Manley, 632 F.2d

978, 987–88 (2d Cir. 1980)). Remember that Bishop’s offenses remained inchoate only because

the minors declined his offer. Had they accepted, he could have been charged with the completed

offense even if he failed to do anything more. Bishop did his best to persuade minors to have sex

with him, and his failure did not owe to an abundance of virtue on his part or a lack of effort. That

the teenagers exercised good judgment does not take Bishop off the hook. See United States v.

Pratt, 351 F.3d 131, 136 (4th Cir. 2003).




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       This case is easier than others that have found attempts under § 2422(b). In Roman, for

instance, the defendant communicated with a 34-year-old man (who in truth was an undercover

agent), who agreed to facilitate sex with the man’s underage daughter (who in truth did not exist).

795 F.3d at 512–14. When the defendant met the agent in person, he was arrested. Id. at 514. We

affirmed the conviction even though the defendant did not directly contact the minor. Id. at 515–

19. Our sister circuits have done the same on similar facts. See, e.g., United States v. Hite, 769

F.3d 1154, 1166 (D.C. Cir. 2014); United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United

States v. Douglas, 626 F.3d 161, 164 (2d Cir. 2010); United States v. Nestor, 574 F.3d 159, 161–

62 (3d Cir. 2009). By cutting out the middleman, as Bishop did, his conduct was more direct and

no less culpable.

       Bishop raises two counterarguments. Neither persuades.

       He argues that his conduct was too fleeting to count as an attempt. Some of the defendants

in some of the cases the district court discussed, it is true, invested more time and energy into their

solicitations. See Roman, 795 F.3d at 513–14 (describing an extended exchange with the alleged

minor’s father); United States v. Blazek, 431 F.3d 1104, 1106–07 (8th Cir. 2005) (describing a

fifteen-month exchange with an undercover agent).           But middling solicitations, even brief

solicitations, are still solicitations. And by propositioning his victims in person, Bishop came

closer to achieving his objective than the perpetrators he tries to distance himself from.

       Bishop adds that we have previously distinguished solicitation from attempt, see United

States v. Dolt, 27 F.3d 235 (6th Cir. 1994), suggesting his solicitation convictions should not count.

Not exactly. Dolt held that a solicitation to commit drug trafficking did not necessarily require

that the defendant “himself intend to engage in” the “criminal conduct” enumerated in § 4B1.1 of

the Sentencing Guidelines under the categorical approach. Id. at 239. But when asking whether



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this five-level enhancement applies, we consider the character of Bishop’s past conduct, not the

label of the offense he was charged with (or, for that matter, whether he was charged with an

offense at all). See U.S.S.G. § 2G2.2 cmt. n.1. We thus do not have to decide whether all

solicitations of minors could be charged under § 2422(b). Bishop’s could have been, and that’s

all that matters.

        Even if the district court erred in concluding that the enhancement applies to Bishop, any

error was harmless. See United States v. Susany, 893 F.3d 364, 368 (6th Cir. 2018). The district

court noted, twice, that it would have given Bishop the same sentence even if his guidelines range

had been lower—even in other words if it had accepted Bishop’s argument about the proper

interpretation of § 2G2.2(b)(5). In the course of rejecting Bishop’s argument for a downward

variance, it initially noted that it would “vary up” to 240 months for “the same reasons that . . .

there’s no basis for var[ying] down.” R. 29 at 43. Later, the court noted that, without this

enhancement, Bishop would have had a guidelines range of 151 to 188 months. But in view of

Bishop’s long history of “acting out toward real kids,” the court indicated that it would have

“var[ied] up” to the statutory maximum of 240 months anyway—an increase of about 28 percent.

R. 29 at 44–45. A variance of this magnitude would not be substantively unreasonable on this

record. See Gall v. United States, 552 U.S. 38, 47 (2007); United States v. Ruska, 926 F.3d 309,

313 n.5 (6th Cir. 2019).

        We affirm.




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