                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2054

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

E RIK D. Z AHURSKY,
                                            Defendant-Appellant.


            Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 2:06 CR 109—Rudy Lozano, Judge.



   A RGUED O CTOBER 17, 2011—D ECIDED F EBRUARY 2, 2012




 Before B AUER, P OSNER, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. This is Erik Zahursky’s second
appeal to this court. In 2007, a jury convicted Zahursky
of attempting to coerce or entice a minor to engage
in sexual activity in violation of 18 U.S.C. § 2422(b)—an
offense for which Zahursky received a 262-month
prison term. Zahursky appealed, challenging both his
conviction and a sentencing enhancement based on
§ 2G1.3(b)(2)(B) of the sentencing guidelines. We affirmed
2                                              No. 11-2054

the conviction, but we vacated Zahursky’s sentence
and remanded, ruling that § 2G1.3(b)(2)(B) was inap-
plicable. On remand, the district court, relying in part
on § 2G1.3(d) of the guidelines, sentenced Zahursky to
210 months in prison. Zahursky appeals again, arguing
that our earlier ruling precludes not only the section (b)
enhancement, but also the section (d) enhancement.
Although § 2G1.3(d) may not apply, we find that
Zahursky has forfeited this argument and therefore
affirm his sentence.


                             I
  In 2006, Zahursky, using the pseudonym “gracepace101,”
began a chat room correspondence with “Sad_Shelly200”
(Shelly), a fictitious 14-year-old girl created by the U.S.
Secret Service. (The record does not reveal why that
agency had become involved, but no one has made any-
thing of it.) Shortly thereafter, Zahursky began corre-
sponding with “holly1989cutie” (Holly), who represented
herself to be 14 years old, but whose actual identity is
unknown. We need not describe these conversations
in depth here apart from noting that they were graphic;
some of the details can be found in our previous
opinion, United States v. Zahursky, 580 F.3d 515, 517-20
(7th Cir. 2009). It suffices to say that Zahursky expressed
a strong desire to have sex simultaneously with Shelly
and Holly, and he prompted them to contact each other.
They never did, and his correspondence with Holly
ended. Undeterred, Zahursky made plans to have a
threesome with the fictitious Shelly and her (also ficti-
tious) friend Lindsey.
No. 11-2054                                               3

  While en route to meet Shelly and Lindsey, Zahursky
was arrested. As we noted, he was eventually convicted
of attempting to persuade, induce, entice or coerce a
minor to engage in sexual activity in violation of 18 U.S.C.
§ 2422(b) and was sentenced to 262 months of imprison-
ment. This sentence was based, in part, on two provi-
sions of the sentencing guidelines: first, an enhance-
ment under U.S.S.G. § 2G1.3(b)(2)(B) for “unduly
influenc[ing] a minor,” based on his correspondence
with Holly; and second, a pseudo-count enhancement
under § 2G1.3(d), which was also based on his correspon-
dence with Holly. (A “pseudo-count” appears to be the
term used by the Sentencing Commission staff to
describe an uncharged offense. See Thomas W. Hutchison
et al., Federal Sentencing Law and Practice § 3D1.2 (2012
ed.).)
  In 2009, Zahursky appealed his sentence, asserting
that the undue influence enhancement should not have
been applied when his advisory guidelines offense
level was calculated. We found merit in this argument,
writing that “§ 2G1.3(b)(2)(B) cannot apply where the
defendant and the minor have not engaged in
prohibited sexual conduct.” Zahursky, 580 F.3d at 526.
Finding that the record failed to contain any evidence
that Zahursky and Holly had ever met—or even that
Holly was a minor—we remanded for resentencing. Id.
at 527-28. On remand, Zahursky received a lower sen-
tence of 210 months. The recalculated guidelines sen-
tence no longer included the subsection (b)(2)(B) enhance-
ment, but it still contained the section (d) enhancement.
Zahursky now appeals the use of § 2G1.3(d) to enhance
his advisory guideline offense score.
4                                                 No. 11-2054

                              II
  Where a conviction under 18 U.S.C. § 2422(b) involves
multiple minors, U.S.S.G. § 2G1.3(d) directs a sen-
tencing court to treat the relevant conduct with each
person as if it were a separate count. Unlike the statute,
however, the guideline (that is, § 2G1.3(d)) does not
contain an “attempt” provision. This means that the
government must prove that each relevant person was
a minor. See United States v. Coté, 504 F.3d 682, 687-88
(7th Cir. 2007) (explaining relevance of the attempt provi-
sion). The guideline defines the term “minor” expansively:
for purposes of § 2G1.3(d), a minor is either (1) a person
who has not attained the age of 18 years, (2) a person,
whether fictitious or not, who is represented by a law
enforcement officer to be under the age of 18 and
available for sexually explicit conduct, or (3) an under-
cover law enforcement officer who represented herself
to be less than 18 years old. U.S.S.G. § 2G1.3 app. n.1.
  The enhancement under § 2G1.3(d) cannot be based
on the first of these definitions, for reasons similar to
those we discussed in our earlier opinion. There we
were considering an enhancement under U.S.S.G.
§ 2G1.3(b)(2)(B). The relevant definition of “minor” for
section (b) is narrower than it is for section (d). Section (b)
“does not apply in a case in which the only ‘minor’ . . .
involved in the offense is an undercover law enforcement
officer.” U.S.S.G. § 2G1.3(b) app. n.3(B), ¶ 2. Thus, a
person is a minor for subsection (b) purposes only if
she is less than 18 years old. The record here contained
no evidence to that effect. Zahursky, 580 F.3d at 527.
No. 11-2054                                               5

   The government was therefore required to prove
that Holly was either a law enforcement officer or the
fictional creation of such an officer. Indeed, we sug-
gested that this was a possibility in our earlier opinion.
Id. But Zahursky correctly notes that just as we have no
way of verifying that Holly was a 14-year-old female,
we also cannot know whether she was a law enforce-
ment agent, or if she was anyone else. Critically,
however, we lack this clarity largely because Zahursky’s
first appeal made no mention of § 2G1.3(d). Zahursky
chose in his first appeal to focus on the undue influence
enhancement described in § 2G1.3(b)(2)(B). If he had
complained on that appeal about the section (d)
pseudo-count enhancement, then we might have ordered
an evidentiary hearing on Holly’s identity or age and
remanded for resentencing on these grounds as well.
But he did not, and so he has forfeited this line of attack.
  Our remand in Zahursky’s first appeal did not give
him an unfettered right to introduce any and all new
sentencing arguments that occurred to him. Just because
some of the facts underlying the sentencing enhance-
ments overlap does not mean that a narrow challenge
on one ground (here, the undue influence enhancement)
also sweeps in other grounds (here, the pseudo-count
enhancement treating each minor as if there had been
a separate count of conviction). This is especially so
because the relevant definition of minor is different for
the two enhancements. Compare U.S.S.G. § 2G1.3 app.
n.1 with U.S.S.G. § 2G1.3 app. n.3(B), ¶ 2. The district
court accordingly was entitled to refuse to hear
Zahursky’s new challenge. As we recently said, “when a
6                                               No. 11-2054

case is generally remanded to the district court for re-sen-
tencing, the district court may entertain new arguments
as necessary . . . but it is not obligated to consider any
new evidence or arguments beyond that relevant to the
issues raised on appeal.” United States v. Barnes, 660
F.3d 1000, 1007 (7th Cir. 2011) (emphasis added).
  By failing to raise the issue in his first appeal, Zahursky
forfeited his right to challenge the application of the
pseudo-count enhancement under § 2G1.3(d), and
the district court was not obliged to consider this new
argument on remand. We therefore A FFIRM Zahursky’s
sentence.




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