                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAR 17 2004
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 03-4187
          v.                                          District of Utah
 PAUL JEFFREY WILLIAMS,                         (D.C. No. 02-CR-0030-ST)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.          **




      This appeal raises but one issue, namely, the scope of the the United States

Sentencing Guidelines (USSG) § 2G2.1(b)(3)(B)(ii) sentence enhancement for

using a computer to solicit sexually explicit conduct from a minor. Holding that

it is irrelevant under the Sentencing Guidelines whether a defendant would have




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(g). The cause is therefore ordered submitted without oral argument.
exploited his victims even without the use of a computer, we affirm the district

court’s decision to enhance the sentence here.

                                    Background

      Pursuant to a validly executed search warrant, Air Force officials in April

2002 seized defendant Paul Williams’s computer and related items located in his

dormitory room at Osan Air Base in South Korea. The data on this computer

contained over 900 pages of instant message communications between Williams

and his wife Dee Dee. During these chats, Paul Williams repeatedly asked Dee

Dee Williams to take pictures of his nine-year-old step-daughter’s genitalia and

send him the images over the internet. Williams once communicated online

directly with the victim, asked her to pick out a sex toy from Dee Dee Williams’s

collection, take pictures of herself using it, and send the images to him over the

internet.

      During an interview after their arrest, Dee Dee Williams admitted that Paul

Williams would use the internet to send her from Korea sexually explicit images

of her children taken before he left the country. After pleading guilty to six

counts in the indictment, Paul Williams underwent a psycho-sexual assessment,

during which he admitted that he allowed the victim to see pornographic images

on the internet and in his own collection when they resided together. These, he

said, would answer the girl’s questions about how to use his wife’s sex toys.


                                         -2-
       At the sentencing hearing, Williams objected to the application of USSG §

2G2.1(b)(3)(B)(ii) to enhance his sentence level. The district court found that

the section applied to each of the six counts of sexual exploitation of children, 18

U.S.C. § 2251, to which Williams pleaded guilty.

                                        Discussion

       We review for clear error the district court’s factual findings and give due

deference to the court’s application of the guidelines to the facts    . See United

States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997),        cert. denied , 523 U.S.

1079 (1998). However, we review de novo the threshold legal question of how to

interpret the language of § 2G2.1(b)(3).      See id.

       Section 2G2.1(b)(3) instructs sentencing courts to increase a defendant’s

sentence if his offense involved “the use of a computer or an Internet- access

device to . . . solicit participation with a minor in sexually explicit conduct.”

USSG § 2G2.1(b)(3)(B)(ii). In      United States v. Reaves     we stated that

       Congress’s concerns [in instructing the United States Sentencing
       Commission to mandate sentence enhancements for the use of
       computers to commit child-pornography related offenses] were not
       limited to a pedophile’s ability to use a computer to directly contact
       increased numbers of children via the internet. Instead, Congress
       emphasized a broader concern with the ability to exploit a child’s
       general fascination with computer technology. Thus, it appears
       Congress was not merely interested in punishing specific ways of
       using a computer to lure young victims. Rather, Congress wanted to
       punish more generally the fact that the perpetrator used a computer at
       all.


                                             -3-
253 F.3d 1201, 1205 (10th Cir. 2001). The defendant in        Reaves never used the

internet to directly ask his victims to participate in child pornography; rather, he

would send them pornographic images which would then inspire them to engage

in sexually explicit conduct. We held that § 2G2.1(b)(3) nonetheless did apply,

for the verb “solicit” was broad enough to include luring a victim into engaging in

sexually explicit conduct without directly asking him to participate.     Id.

       We hold that § 2G2.1(b)(3) applies in this case as well. Williams argues

that “none of the charges in the present case arose from or as a consequence of

[an internet exchange]. Rather, the present case arose because of Mr. Williams’s

direct personal solicitation of the children in the home as a step-parent.” Aplt.

Br. at 14. This argument reads a limitation into § 2G2.1(b)(3) – namely, that it

only applies to a defendant who exploits children      solely through the use of

computers – that the language does not support. On the contrary, the only facts

that must exist in order for the enhancement to apply are 1) that the defendant

have solicited a minor 2) in sexually explicit conduct 3) through the use of a

computer or internet-access device. It is undisputed that all these facts exist in

this case. Indeed, unlike the court in   Reaves , which resolved an ambiguity as to

the meaning of the verb “to solicit,” we cannot see how the language of the

Sentencing Guidelines could fail to be interpreted so as to apply to Williams.




                                            -4-
      The logic behind Williams’s argument is that enhancing his sentence will

not accomplish the purpose of Congress and the Sentencing Commission, which is

to protect children from computer-related exploitation, for, as a step-father, he

would have exploited the victim even if he did not have internet access. Even if

we were, however, to look past the statute’s plain meaning, we would still find

that enhancing Williams’s sentence does indeed protect children from computer-

related exploitation. Assuming Williams would have exploited his victim without

the use of a computer, the use of a computer made the exploitation easier and

more frequent, by enabling him to exploit his victim from halfway around the

world. Thus, by applying § 2G2.1(b)(3) to cases such as Williams’s, we achieve

Congress’s objective of protecting children from exploitation through the use of

computers.

      The ruling of the District Court is AFFIRMED.


                                               Entered for the Court


                                               Timothy M. Tymkovich
                                               Circuit Judge




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