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UNITED STATES of America, Plaintiff-Appellee, v. Jack ALDRICH, Defendant-Appellant

United States Court of Appeals for the Eleventh Circuit2009-04-27No. No. 08-15556
566 F.3d 976

Summary

Holding. The court affirmed Aldrich's sentence, holding that the statutory definition of "sexual contact" under 18 U.S.C. § 2246(3) includes masturbation when performed with intent to arouse or gratify sexual desire, regardless of whether the actor also harms himself, and that the two-level sentencing enhancement was properly applied.

Jack Aldrich was convicted of using a computer to entice a minor to engage in sexual activity and received a 168-month sentence. At sentencing, the district court applied a two-level enhancement to Aldrich's offense level, finding that his act of masturbating in front of a web camera while communicating with someone he believed to be a minor constituted "sexual contact" under the sentencing guidelines. Aldrich challenged this enhancement on appeal, arguing that masturbation could not qualify as sexual contact because the statute's definition requires touching "any person," which he contended could not include himself.

The appellate court affirmed the enhancement and sentence. The court determined that the plain language of the statute demonstrates Congress's intent to include the offender himself within the phrase "any person," distinguishing this from the phrase "another person" used elsewhere in the statute. The court also rejected Aldrich's argument that because self-harassment is impossible, masturbation cannot constitute sexual contact. Since the statute uses "or" rather than "and" to connect the possible motives (abuse, humiliate, harass, degrade, or arouse), a defendant need only satisfy one of these intentions, not all of them. Finally, the court found no due process violation from the presentence report's characterization of the conduct.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether masturbation constitutes "sexual contact" under the sentencing guidelines
  • Interpretation of "any person" versus "another person" in statutory definitions
  • Whether all enumerated motives must be satisfied or only one
  • Due process challenge to presentence report characterization

Procedural posture

Aldrich appealed his 168-month sentence imposed by the district court, challenging the application of a two-level sentencing enhancement.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

BARKETT, Circuit Judge:

Jack Aldrich appeals his 168-month sentence for using a computer to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). Aid-rich argues that the district court erred in applying a two-level enhancement at sentencing under U.S.S.G. § 2G2.1(b)(2)(A) based on a finding that Aldrich’s masturbating for a minor female in front of his web camera constituted a “sexual contact.” Aldrich also raises a due process argument based on the alleged inaccuracy of the statement in his presentence investigation report (“PSI”) that Aldrich was masturbating “in front of’ a minor when in fact he was in front of his web camera.

Under U.S.S.G. § 2G2.1(b)(2)(A), a two-level increase applies to a defendant’s base offense level if the base offense involves “the commission of a sexual act or sexual contact.” A “sexual contact” is defined as “the intentional touching ... of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3) (emphasis added).

The district court applied the two-level enhancement based on its finding that the plain meaning of the phrase “any person,” as used in the definition of “sexual contact,” unambiguously referred to the touching of all people, including Aldrich himself, and that therefore, contrary to Aldrich’s position, masturbation constituted “sexual contact” for purposes of the enhancement. The district court also rejected Aldrich’s argument — made for the first time at sentencing — that “any person” could not include oneself, because it was not possible for Aldrich to “harass” himself, one of the six potential motives of § 2246(3). Aldrich argued that an individual must be able to perform all six prohibited acts under the statute in order to violate it. Finally, the district court rejected Aldrich’s argument that the rule of lenity should apply in his favor, because the statute was ambiguous and there was no controlling precedent. United States v. Santos, — U.S. —, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008). Aldrich reiterates his arguments on appeal, and we address each below.

The Supreme Court has held that the “starting point” of statutory interpretation is “the language of the statute itself.” Randall v. Loftsgaarden, 478 U.S. 647, 656, 106 S.Ct. 3143, 92 L.Ed.2d 525 (1986). The “cardinal canon” of statutory interpretation is that “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Finally, statutes should be construed so that “no clause, sentence, or word shall be superfluous, void, or insignificant.” United States v. Ballinger, 395 F.3d 1218, 1236 (11th Cir.2005) (quotations and citations omitted).

Based on our review of the record and the relevant law, we conclude as the district court did that the plain meaning of “sexual contact” under U.S.S.G. § 2G2.1(b)(2)(A) and 18 U.S.C. § 2246(3) includes the act of masturbating. The statute’s operative phrase “any person” applies to all persons, including Aldrich himself. We come to this conclusion based on our observation that § 2246(2)(D) defines a “sexual act” as the “intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” (emphases added). We believe that § 2246(2)(D) clearly indicates that Congress used the phrase “any person” when it meant to include the offender himself, as well as another individual, and the phrase “another person” when it meant to exclude the offender. Therefore, the use of the phrase “any person” in the § 2246(3) definition of “sexual contact” demonstrates Congress’s intent to include masturbation among the acts to which the definition and the § 2G2.1(b)(2)(A) enhancement was meant to apply.

We also reject Aldrich’s argument that because one cannot “harass” oneself, the definition of “sexual contact” must not include masturbation. Section 2246(3) uses the conjunction “or” instead of “and” in its list of potential motives; therefore a defendant need only intend to “abuse, humiliate, harass, degrade, or arouse or gratify” in order to violate the statute. Id. (emphasis added). That Aldrich could not do one of these things is immaterial so long as he could do another.

Finally, we find no merit to Aldrich’s due process argument, because the PSI did not contain invalid factual premises that infringed on Aldrich’s constitutional rights. Compare United States v. Stephens, 699 F.2d 534, 537 (11th Cir.1983). There is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera, and we see no other indication that Aldrich lacked proper notice of the sentence he faced. The judgment of the district court is

AFFIRMED.

. In fact, the "minor” was an undercover officer posing as a fifteen year-old female.

. We review a district courts finding of fact for clear error and its application of the Sentencing Guidelines de novo. United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir.2003). We also review "de novo questions of statutory interpretation.” United States v. Maupin, 520 F.3d 1304, 1306 (11th Cir.2008).

. Because we have held that the statute is unambiguous, the rule of lenity does not apply, and we therefore reject Aldrich’s argument on that issue.