[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 3, 2007

N o . 06-13035

THOMAS K. KAHN

CLERK

D . C. Docket No. 05-00157-CR-2-JHH-RRA

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID L. VANCE,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Alabama

(A u g u st 3, 2007)

B efo re PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

A L A R C Ó N , Circuit Judge:

D a v id L. Vance appeals from the judgment of conviction and the District

C o u rt's sentencing decision. He contends that the District Court committed plain e rr o r in sustaining the prosecutor's objection to the admission of an extra-judicial statem en t. He also asserts that the District Court erred as a matter of law in c o n c lu d in g that he unduly influenced a minor to engage in prohibited sexual co n d u ct, and in enhancing his base offense level based upon its finding that his o f f en s e involved the use of a computer to solicit a minor to engage in prohibited sex u al conduct. We affirm because we conclude that the District Court did not ab u se its discretion in its evidentiary ruling, nor did it clearly err in its findings in su p p o rt of its sentencing decision.

I V iew in g the evidence in the light most favorable to the Government as the p r e v a ilin g party at trial, the record shows that, as part of an ongoing undercover s tin g investigation, Captain John Crane of the Birmingham, Alabama Police D ep artm en t posted a message on a Yahoo! web site serving a child pornography g ro u p called "texashottestteens." The subject line for that group was "Tiny Interest T r ip s ." Captain Crane's message advertised the availability of minors for sexual activ ity. Captain Crane's posted message reads as follows: "Tiny Interest C o m p an io n s. Lolita - VYB - VYG. Private travel opportunities available. (Costa R ica). Discretion assured. E-mail for details."1 T h e message listed "tinyinterest@yahoo.com" as the e-mail address. It also provided that if that e-mail address had been deleted by Yahoo!, the person p o stin g the advertisement could be contacted by using the e-mail address "x x tin y h o lz x x @ y a h o o .c o m ." C ap tain Crane testified that in this sting operation, he did not single out any p erso n to entice them to respond to his advertisement. Instead, he waited until he receiv ed a response to his advertisement. In his role as a feigned procurer, Captain C r an e 's message provided persons seeking to engage in prohibited sexual conduct w ith minors the opportunity to use him as their agent to carry out their intent.

On January 18, 2005, Mr. Vance sent an e-mail to Captain Crane in which h e stated "details please."2 Mr. Vance identified his e-mail address as "ro ck etp w r1 1 2 3 4 @ yah o o .co m ." Captain Crane responded as follows: I got your email inquiry. Tiny Interest Companions u tilizes a private aircraft and flight plan from a medium s iz ed airport. This insures privacy for our clients since a g r o u p - s ty le manifest is filed. The destination includes p riv ate clubs located in Costa Rica. These very exclusive clu b s offer a variety of choice of VYG's to VYB's.

Travel, accommodations for 2 nights / 3 days and c o m p a n io n are all included in the price. 25% is due at tak eo ff with the balance due prior to return. Specific q u estio n s, desires and expectations can be emailed but fo r obvious reasons, there is not a website and PayPal is n o t accepted.

2 All the correspondence between Captain Crane and Mr. Vance was by internet e-mail.

M r. Vance replied: "ive always wanted to go to costa rica what are ur p rices, and whats included." Captain Crane's response stated: A buddy of mine is a corporate pilot and the co m p an y lets him use the jet twice a year.

We go down to Costa Rica (we try to avoid th e U.S. anyway) from a private gate at a m ed iu m sized metro airport in the Southeast U S A . We stay at the Best Western D o w n to w n San Jose, which is about 14 m iles from the Juna Santamaria In tern atio n al Airport. The cost is about $58 d o llars a night which is included. The rate is $ 1 ,5 0 0 .0 0 which covers the trip, hotel, 2 N ig h ts with VYG / VYB (what age span w e re you interested in and what you wanted to do - no pain!!!) I send an email to our co n tact there to have things set up - you ch o o se the one you want at the club) and th at rate leaves a profit margin that my b u d d y and I split. If you are still interested, w e can go from there. We are looking at aro u n d the 18 of Feb. or 11th of March.

M r. Vance's next message stated: "What no drinks come on its first time d o w n there.What other islands are near?any pics i like to get a feel of what iam g o in [sic] going to see. g12 15." On February 2, 2005, Mr. Vance replied as fo llo w s: "i cant wait i bet its warm down there rip off what do u mean. fem 12-17 w h ats next." C ap tain Crane's next message stated: N ex t, I need to know what do you want to do with the g ir ls so we can line up the appropriate ages before we get th ere. 25% ($375) is required prior to departure. We [ sic ] way we do that is that you physically cut the money in half with a pair of scissors. Send half the bills with a p h o to co p y of the "front" of your passport (I don't want y o u r name or anything, but you have to have one to get b ack into the U.S. and I just want to make sure you do).

Bring the other half of the bills with you for when we get o n the jet going down. The balance ($1,125) is due b efo re we come back. If this is satisfactory, let me know alo n g with your expectations and I'll send you the ad d ress.

M r. Vance replied: "them with each other and inter core with m E of course w h at else give me ideas, about the other well no problem with money but passport i d o n t know can i black out every thing or just insure u i have one will be enough." In reply, Captain Crane stated: S ev eral things I wanted to let you know. We got the p lan e for the 11th of March. I emailed my contact in C o s ta Rica and he let me know what he had available. If yo u wanted two to have sex with each other and in terco u rse with you here is what he has initially set up f o r the nights there: M arg u arite - 12 years old Vittoria - 13 years old Maria - 15 years old Ju an ita - 17 years old I f you wanted two of a specific age, I can email him back so he can make arrangements. I did't want to commit to a n y th in g until I heard from you so let me know which o n e s interest you and he'll have them there. Believe me, th ey are very attractive....he has never let me down b efo re. I like mine a little younger and have already put m y order in.

L ast of all, you can mail me at: T .I. (for Tiny Interest) P .O . Box 5231 B irm in g h am , AL 35207 3 Mr. Vance responded: "that works for me now i can mix and match and tw o one night or how ever depending on how many nights we are there then.Or did i have to pick out of the bunch." Captain Crane replied: "We will be leaving from th e same city as my mailing address and it is a pain to transport 6 kids at one time.

If you are interested in two of them, let me know. That way my contact will be b rin g ing mine, my buddy's and your two." Mr. Vance replied: "that helps I don't h av e your original e-mail with the names but i think these will do 13 and 15 or v e r y close OK thks." On February 23, 2005, Captain Crane informed Mr. Vance that they should m eet on March 11, 2005, at the Birmingham Airport. On March 3, 2005, Captain C r an e sent another message to Mr. Vance explaining the details of the meeting. It p r o v id ed : O K , I will be in the baggage claim area of Birmingham A ir p o r t on Friday morning at around 6:30. If I remember rig h t, there is a small office area off to the left. I will be 3 The minors described by Captain Crane in this e-mail were fictitious. h a n g in g out there and you can meet me. I will wear tan k h ak i pants and a dark red (maroon) long sleeve shirt and carryin g a small black suitcase. I have a moustache and d ark hair...about 6 feet tall. We can go from there and w alk to the private aircraft terminal which is about 100 feet away. We will leave Friday around 7:00 am and we w ill come back Sunday afternoon, arriving about 5:00 p m . There are several hotels around the airport...a H o lid ay Inn Express and a Days Inn which are about a m ile and a half from the terminal (in case you got in early). If anything should come up (and I am really tru stin g you here) here is a number you can reach me at: 2 0 5 - 9 5 4 - 2 9 8 7 if there is anything else you need just let m e know. By the way, my name is John for when we m e et. Also just to make sure, the address I gave was TI, P .O . Box 5231, Birmingham, AL 35207 T a lk at ya later, Jo h n O n March 11, 2005, Captain Crane went to the Birmingham Airport to meet M r . Vance, if he chose to appear. Captain Crane was accompanied by law e n f o r c em e n t officers who were working undercover as an airline pilot, and as f ello w passengers on the proposed trip to Costa Rica. After Mr. Vance approached C ap tain Crane they proceeded to a private air terminal. There, Mr. Vance, Captain C ran e, and his fellow undercover law enforcement officers were arrested. The o fficers were arrested to maintain their undercover status.

A f te r Mr. Vance was arrested, Captain Crane searched a bag carried by Mr.

V an ce. It contained his driver's license, his passport, one-half of paper currency in th e amount of $375 and $553 that had not been cut, traveler's checks totaling $750, a n d a copy of an e-mail sent by Captain Crane on March 3, 2005, describing where M r . Vance should meet him on March 11, 2005. Mr. Vance's bag also contained th irteen condoms.

O n March 30, 2005, a federal grand jury indicted Mr. Vance for "knowingly attem p t[in g ] to travel in foreign commerce from the State of Alabama to a foreign co u n try for the purpose of engaging in illicit sexual conduct with other persons, in v io latio n of Title 18, United States Code, Sections 2423(b) and (e)." II A M r . Vance testified on his own behalf at trial. Mr. Vance's attorney asked M r . Vance why he responded to Captain Crane's Yahoo! message. Mr. Vance s ta te d : "Well, I figured by requesting details, I may or may not be able to gather m o r e information." Mr. Vance's attorney inquired further: "And with that in fo rm atio n , you were going to do what?" Mr. Vance replied: "Turn it in to Y ah o o ! to try to get it shut down as a group." M r. Vance testified that after he was arrested, law enforcement officers told h im that they were investigating "John."4 They told him they needed his help in g ath erin g information about John and the pilot. M r. Vance gave a statement to the officers. It was written down by one of th e officers. The statement reads as follows: M y name is David Vance. My birth date is August 2 8 , 1977. . . . I have an Internet account with SBC G lo b al. My screen name is D L V V A N C E 1 @ S B C g lo b al.n et. I have a Yahoo! e-mail ad d ress which is rocketpwr11234@yahoo.com.

I began corresponding by e-mail with a man who s aid he had a business called Tiny Interest. He advertised th at he would take people to Costa Rica to have sex with u n d erag e children. I corresponded with him to catch him a n d turn him into the police.

I told him I wanted to have sex with girls in the a g e range of 12 to 15 years old because I knew that was illeg al and that John, with Tiny Interest, would get in tr o u b le .

I started trying to catch pedophiles when child p o rn o g rap h y sites kept popping up on my computer. I lo o k ed at the pictures and thought they were bad. I lo o k ed at the FBI website and it said not to go to child p o r n o g r ap h y websites. But I did not know how to turn th em in if I didn't go to the websites. I realized I p ro b ab ly should not have gone to these websites.

M y wife has seen some child pornography pictures o n my computer. She did not approve of them but she tru sts me. I have been to Yahoo! groups and message b o ard s where people were trading child pornography. I to ld them I had a collection and I offered to send them p ic tu r e s, if they would send some first. None of them sen t any pictures. I did not have any pictures to send th e m .

S o m e groups have child pornography pictures p o sted in them. I have also seen child pornography p ictu re s on Kazaa. I do not like that program because it's lik e going into other people's computers, so I did not use it.

T h e last time I used Kazaa to view child p o rn o g rap h y was about 1999 or 2000, when I had my old co m p u ter. I never sent or received child pornography b ecau se I knew it was illegal and I have tried not to d o w n lo a d too much of it. So mostly I look at websites b u t did not download them.

W h e n I decided to respond to Tiny Interest, I was n o t sure if I really wanted to go through with it. But after I had sent the money in to John, I felt like I had invested to o much to go back.

I sent John $375 which were bills cut in half. I to ld John I wanted to have sex with a 13-year-old and a 1 5 - ye ar -o ld girl in Costa Rica. When we got there, I was g o in g to pretend that I was not interested in doing that.

I told my wife that I was going to Tennessee for a train in g course. I told my two cousins that I was going to C o s ta Rica for spring break. I did leave my wife a note, h o w ev er, that I was doing what I was doing for her and o u r children.

I know that having sex with a 13-year-old and a 1 5 -year-o ld girl was wrong in this country. I do not k n o w that it was wrong to fly outside the country and do th is. But I figured John was doing something illegal.

I have never had inappropriate conduct with ch ild ren . I wanted to catch John by going to Costa Rica.

I realize that the FBI and the police do not want people to try to catch pedophiles because, in doing so, they have to en g ag e in the same activities as pedophiles.

I make this statement voluntarily. No threats or promises h a v e been made to me.

T h is statement was entered into evidence as Defendant's Exhibit 1.

M r. Vance also made an oral statement to the police after his arrest. He told th e officers that he was "going to try to report as much as possible and shut down a s many groups as possible." He further told the officers: "I was going to go over th ere and then once I got there, I was going to pretend not to be interested, and go to the nightclubs instead." M r. Vance also testified that he left his wife a letter in a file cabinet in his h o m e which he had drafted two hours before he left on his trip. The letter stated: I am doing this to help children all around. I hope th is works and I don't end up dead. If so I love you guys v ery much and I hope u understand why I did this. I love m y children and hope to put people in jail were [sic] they b e lo n g .

I love you Babe M r. Vance further testified that prior to his trip, he informed his cousin, J am e s Aaron St. John, that he "was going to Costa Rica to help children to gather in fo rm atio n to stop John and that if anything happened to me, to take care of my f a m ily ." O n cross examination, the prosecutor questioned Mr. Vance as follows: "I w an t to refer, still looking at your interview [with the FBI after the arrest], Page 3, D e fe n s e Exhibit 3 [sic]. You said in that second paragraph, `I told my wife I was g o in g to Tennessee for a training course.' Do you see that?" Mr. Vance stated: "Y e s, sir." The prosecutor asked: "Of course that was a lie, wasn't it?" Mr.

V a n c e responded: "Yes, sir." The prosecutor then inquired: "When the FBI asked yo u about it, you [didn't] tell them, I told two cousins that I was going to Costa R ic a as part of my investigation to save children from being raped?" Mr. Vance rep lied : "That's correct." The prosecutor followed-up this question by asking: "The only thing you told the FBI, the day that you were interviewed about it is, I w as going on spring break to Costa Rica?" Mr. Vance responded: "Yes, sir." B Mr. St. John testified at trial as a defense witness. He testified that he spoke w ith Mr. Vance at a restaurant in Clovis, California in March of 2005, and on a telep h o n e call when Mr. Vance was in Birmingham, Alabama. Mr. Vance's co u n sel asked Mr. St. John: "What was [sic] the details of the conversation?" The G o v e rn m e n t objected, stating: "Your Honor, we're going to object to hearsay at th is point." Before the District Court could rule on the Government's objection, M r. Vance's counsel asked the witness: "What did you learn from David based on th at conversation? That he was not going to ­." Government counsel stated: "Same objection." The District Court sustained the objection. Mr. Vance's co u n sel did not object to the District Court's ruling that the extra-judicial statement w as inadmissible, nor did he make an offer of proof, or argue that the testimony w as admissible as a prior consistent statement to prove that his testimony was not a recen t fabrication.

T h e jury found Mr. Vance guilty as charged in the indictment.

III T h e presentence investigation report ("PSR") prepared for the District Court set forth a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B), on the ground th at Mr. Vance unduly influenced a minor to engage in prohibited sexual conduct; a n d a two-level enhancement under U.S.S.G. § 2G1.3(b)(3)(B), based on Mr.

V an ce's use of a computer to entice, offer, or solicit a person to engage in p ro h ib ited sexual conduct with a minor. The PSR recommended that Mr. Vance's to tal offense level should be 32. His criminal history category was III. His S en ten cin g Guidelines range was 151 to 188 months.

At his sentencing hearing, Mr. Vance objected to the application of the en h an cem en ts set forth in §§ 2G1.3(b)(2)(B) and 2G1.3(b)(3)(B). He argued that he could not have unduly influenced the minors as they were fictitious. He also a ss er te d that he did not use a computer to solicit a minor. He contended that C a p ta in Crane used a computer to solicit him to engage in prohibited sexual co n d u ct with a minor.

The District Court overruled Mr. Vance's objections. It held that the e x is te n c e of an actual minor was not necessary for an enhancement under § 2 G 1 .3 ( b ) ( 2 ) ( B ) . It also found that the sentencing enhancement was warranted b ecau se Mr. Vance "was directing someone, who had total control, over the variety o f suggested victims to supply the ones that [he] wanted." T h e District Court sentenced Mr. Vance to serve 180 months in prison, to be f o llo w e d by 300 months of supervised release. Mr. Vance has timely appealed fro m the judgment of conviction and the District Court's sentencing decision. We h a v e jurisdiction pursuant to 28U.S.C. § 1291 and 18U.S.C. § 3742(a)(1)-(2).

IV A M r. Vance contends that the District Court erred in sustaining the G o v ern m en t's objection to testimony by Mr. St. John regarding the substance of h is conversation with Mr. Vance. He argues before this Court that Mr. St. John w o u ld have testified that Mr. Vance told him he was going to Costa Rica to help ch ild ren . Mr. Vance maintains that this statement was admissible as a prior co n sisten t testimony.

"A district court is granted broad discretion in determining the admissibility o f a prior consistent statement under Fed.R.Evid. 801(d)(1)(B) and will not be r ev e r se d absent a clear showing of abuse of discretion." United States v. Prieto, 2 3 2 F.3d 816, 819 (11th Cir. 2000). However, "[w]here a party makes no o b jectio n in the trial court to the matter complained of on appeal, our review is for p la in error." Id. Plain error exists "only where (1) there is an error; (2) the error is p la in ; (3) the error affects the defendant's substantial rights in that it was p reju d icial and not harmless; and (4) the error seriously affects the fairness, in te g r ity or public reputation of a judicial proceeding." Id. Mr. Vance failed to arg u e to the District Court that the statement was admissible as a prior consistent s ta te m e n t. He also failed to make an offer of proof that he would present evidence th at Mr. Vance's testimony was not a recent fabrication. Therefore, we must rev iew the District Court's exclusion of the testimony for plain error.

Pursuant to Rule 801(d)(1)(B) of the Federal Rules of Evidence, a prior co n sisten t statement by a witness is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement," and th e statement is "consistent with the declarant's testimony and is offered to rebut a n express or implied charge against the declarant of recent fabrication or improper in flu en ce or motive." There are exceptions to this rule. First, "prior consistent statem en ts are treated as admissible non-hearsay only if they are offered to rebut a s p e cif ic allegation of recent fabrication, not to rehabilitate credibility that has been g e n e r a lly called into question." United States v. Drury, 396 F.3d 1303, 1316 (11th C ir. 2005) (emphasis in original). Second, to be admissible under Rule 8 0 1 (d )(1 )(B ) "the [prior] consistent statements must have been made before the a lle g e d influence, or motive to fabricate, arose." Tome v. United States, 513 U.S.

1 5 0 , 158 (1995). This Court has explained that the question "whether a witness h ad a motive to fabricate when prior consistent statements were made is plainly a q u e stio n of fact to be resolved by the trial court based precisely on the particular c ir cu m s ta n c es of an individual case" and that determination is entitled to great d eferen ce on review. Prieto, 232 F.3d at 821. The failure of Mr. Vance to argue th at Mr. St. John's testimony was admissible under Rule 801(d)(1)(B) deprived the D is tr ic t Court of the opportunity to make a finding regarding whether Mr. Vance h ad the motive to fabricate when he spoke to Mr. St. John.

M r. Vance contends that the Government impliedly accused him of fa b rica tin g his testimony that his intent, in responding to Captain Crane's ad v ertisem en t, was to gather evidence to assist law enforcement. During crosse x a m in a tio n , the prosecutor asked Mr. Vance why he had not told the officers after h is arrest that he had stated to Mr. St. John that the purpose of his trip was to help ch ild ren . Mr. Vance's written statement indicates that he informed Mr. St. John an d another cousin that he was going to Costa Rica for spring break.

Mr. Vance has failed to demonstrate that he did not have a motive to fab ricate his testimony before he spoke to Mr. St. John. At the time he spoke to M r. St. John, Mr. Vance had already sent e-mails to Captain Crane expressing his in terest in engaging in illegal sexual conduct with minors. The District Court did n o t commit plain error in excluding Mr. St. John's testimony regarding his co n v ersatio n s with Mr. Vance.

B M r. Vance contends that the District Court erred in overruling his objection to the imposition of a two-level base offense increase for unduly influencing a m in o r to engage in prohibited sexual conduct pursuant to U.S.S.G.

§ 2G1.3(b)(2)(B). He argues that there is no evidence that he exerted any influence o v e r a minor. He also maintains that § 2G1.3(b)(2)(B) is inapplicable where a d efen d an t has selected fictitious minors for prohibited sexual conduct from a list p r o v id e d by an undercover officer.

T h is Court reviews a District Court's interpretation of the Sentencing G u id elin es de novo, and its factual findings for clear error. United States v. Jordi, 4 1 8 F.3d 1212, 1214 (11th Cir. 2005). Section 2G1.3(b)(2)(B) provides that the b a s e offense level should be increased by 2 if "a participant [of the crime] o th e r w is e unduly influenced a minor to engage in prohibited sexual conduct." Application Note 1 of § 2G1.3 provides that "`Minor' means . . . an individual, w h eth er fictitious or not, who a law enforcement officer represented to a p articip an t (i) had not attained the age of 18 years, and (ii) could be provided for th e purposes of engaging in sexually explicit conduct." T h is Court held in United State v. Root, 296 F.3d 1222, 1233 (11th Cir. 2 0 0 2 ) that, under U.S.S.G. § 2A3.2 (2000),5 "an undercover officer playing the role o f a minor victim qualifies as a victim, thereby making an actual victim u n n ecessary." This Court reasoned that § 2A3.2 (2000) was enacted for the p u rp o se of "ensuring that offenders who are apprehended in undercover operations a re appropriately punished." Id. at 1234 (internal quotation marks omitted).

This Court held in Root that "when an undercover officer is the recipient of c o m m u n ic atio n s related to the commission of a sex crime offense and no actual ch ild is involved, a district court considering an undue influence enhancement, u n d e r § 2A3.2(b)(2)(B), must focus on the offender's conduct." Id. The Court ex p lain ed that a contrary "interpretation would [] undermine the Sentencing C o m m issio n 's stated purpose in amending the definition of victim under § 2A3.2 o f ensuring that offenders who are apprehended in an undercover operation are a p p r o p r ia te ly punished." Id. (internal quotation marks omitted).6 5 Application Note 1 to U.S.S.G. § 2A3.2 (2000) provided that: "Victim" includes "an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years." 6 In his brief, Mr. Vance reminds us that two of our sister Circuits have expressly declined to follow this Court's holding in Root that the sentencing enhancement set forth in § 2A3.2(b)(2)(B) is applicable in a sting operation where the minor is fictitious. See United States v. Mitchell, 353 F.3d 552, 562 (7th Cir. 2003) (holding that "[w]here the state of mind of the victim is critical, and perhaps dispositive, it simply cannot apply in the case where the victim has no state of mind whatsoever because she does not exist"); United States v. Chriswell, 401 F. 3d 459, 469 (6th Cir. 2005) (holding that "§ 2A3.2(b)(2)(B) is not applicable where the victim is an undercover agent representing himself to be a child under the age of sixteen"). We, of course, are bound to follow the In United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), this Court held th at sentencing enhancements can be applied even though the defendant only c o m m u n ic ate d with a male undercover officer who was posing as the father of a fictitio u s thirteen-year-old daughter. Id. at 1289-90. In Murrell, the defendant was co n v icted , under 18U.S.C. § 2422(b), of "using a facility of interstate commerce to attem p t to knowingly persuade, induce, entice, or coerce a minor to engage in u n la w f u l sexual activity." Id. at 1284. This Court held that the District Court p ro p erly enhanced the defendant's sentence under U.S.S.G. § 2G1.1(b)(2)(B) (2 0 0 3 ), a similar Sentencing Guidelines provision to § 2G1.3(b)(2)(B). Id. at 1289.

The 2003 version of § 2G1.1(b)(2)(B) 7 provided that a defendant should receive a tw o -lev el sentencing enhancement for "an offense involving a victim between the a g e s of twelve and sixteen." Id. at 1288 (internal quotation marks omitted).

This Court explained in Murrell that "[b]ecause the Sentencing Commission sp ecifically provided that undercover officers are victims for purposes of § 2G1.1, w e deduce that the enhancement is directed at the defendant's intent, rather than a n y actual harm caused to a genuine victim." Id. at 1289 (internal quotation marks o m itted ).8 "Thus, the enhancement applies whether the minor `victim' is real, f ic titio u s , or an undercover officer." Id.

In United States v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005), this Court a ff ir m e d the District Court's decision to enhance a defendant's sentence under U .S .S .G . § 2A3.1(b)(2)(A) (2003), after the defendant "pleaded guilty to traveling in interstate commerce with the intent to have sex with a minor, in violation of 18 U .S .C . § 2423(b)." Id. at 1265. The defendant in Lebovitz responded to an internet b u lle tin board message posted by then Lt. John Crane of the Birmingham Police D ep artm en t as part of a sting operation to catch pedophiles preying on children.

Id. The message was entitled "teengirls4men." Id. Lt. Crane, using an alias, em a ile d a response to the defendant, posing as a father with three fictitious children u n d er the age of twelve who would be available for sex. Id. at 1265-66. Section 2 A 3 .1 (b )(2 )(A ) (2003) provided that "[i]f the victim had not attained the age of tw elv e years" the base offense level should be "increase[d] by 4 levels."9 Relying o n Root, this Court held that an enhancement under § 2A3.1(b)(2)(A) was ap p licab le. Id. at 1268-70. It explained that "whether a victim is fictitious is irrelev an t to the application of a federal statute or sentencing guideline prohibiting s ex u a l conduct with a minor." Id. at 1268.

Here, Mr. Vance used his superior knowledge and resources in an attempt to u n d u ly influence the fictitious minors. He used his knowledge of computers and th e internet to contact people whom he believed would supply minors for sexual c o n d u c t. He also used his financial resources to pay the feigned procurer to act as h is agent in influencing the minors to satisfy his sexual desires.

Mr. Vance contends that § 2G1.3(b)(3)(B) is inapplicable to his conduct b ecau se he was not a direct participant in unduly influencing a minor to engage in p ro h ib ited sexual conduct. He argues that he "merely agreed, through a third party, to travel to Costa Rico to have illicit intercourse." We disagree. Mr. Vance p articip ated in attempting to unduly influence a minor by employing "John" to s u p p ly minors to engage in sexually explicit conduct. The fact that an agent was u s e d as an intermediary to effectuate Mr. Vance's influence over the minors su p p o rts the conclusion of undue influence. Mr. Vance used his superior k n o w led g e and financial resources to out-source the task of asserting undue in flu en ce on a minor.

As this Court explained in Lebovitz and Murrell, in interpreting similar G u id elin es sections, the focus is on the defendant's intent, not whether the victim is real or fictitious. See Lebovitz, 401 F.3d at 1269-70; Murrell, 368 F.3d at 1289.

Here, the jury rejected Mr. Vance's defense and found that Mr. Vance intended to h a v e sexual contact with real minors. The fact that the minors actually were fictitio u s does not change the applicability of the two-level enhancement pursuant to § 2G1.3(b)(2)(B). Accordingly, the District Court did not err in enhancing Mr.

V a n c e's base offense level pursuant to U.S.S.G. § 2G1.3(b)(2)(B).

C M r. Vance also maintains that the District Court erroneously applied the S en ten cin g Guidelines enhancement set forth in U.S.S.G. § 2G1.3(b)(3)(B) b e c au s e the District Court erroneously determined that it applies to the use of a co m p u ter by an undercover officer to provide the recipients of his internet message w ith the opportunity of hiring him to procure minors for prohibited sexual conduct.

P u r s u a n t to § 2G1.3(b)(3)(B), a District Court must apply a two-level in c r ea se to a defendant's base offense level "[i]f the offense involved the use of a co m p u ter or an interactive computer service to . . . entice, encourage, offer, or s o lic it a person to engage in prohibited sexual conduct with the minor." Application Note 4 to § 2G1.3 explains that "[s]ubsection (b)(3) is intended to ap p ly only to the use of a computer or interactive computer service to c o m m u n ic ate directly with a minor or with a person who exercises custody, care, o r supervisory control of the minor." As discussed above, in Murrell, an undercover officer posed as the father of a thirteen-year-old girl whom he agreed to rent to Murrell for prohibited sexual c o n d u c t. 368 F.3d at 1284-85. In its sentencing decision, the District Court im p o sed a two-level enhancement, pursuant to § 2G1.1(b)(5), because Murrell co m m u n icated with the "father," by using a computer. Id. at 1285. This Court affirm ed the enhancement, holding that, because Murrell used a computer to c o m m u n ic ate with the "father" and Murrell likely believed that the "father" e x e rc is ed control and authority over his minor daughter, the enhancement was p ro p er under § 2G1.1(b)(5)(A) and its commentary. Id. at 1289-90.

In this matter, Mr. Vance used a computer to direct his agent to provide m in o r girls for illicit sexual conduct. Mr. Vance's argument that the enhancement is inapplicable in his case because he did not personally solicit the minors ignores th e plain meaning of the language of § 2G1.3(b)(3)(B). H ere, as in other sting operations, Captain Crane, posing as "John," posted a m e ss ag e on a web site to provide sexual predators the opportunity to use "John" as th eir agent to provide minors for sexual activities. Mr. Vance took the opportunity p ro v id ed by Captain Crane. These facts squarely fit into the plain language of § 2G1.3(b)(3)(B). The District Court found that Mr. Vance believed that "John" h ad supervisory control over the minors because Captain Crane represented that he "o ffer[ed ] a variety of" underage girls and he would "line up the appropriate" girls an d make them available for Mr. Vance upon arriving in Costa Rica. Accordingly, w e conclude that the District Court did not err in applying a two-level en h an cem en t, pursuant to § 2G1.3(b)(3)(B), to Mr. Vance's base offense level.

A F F IR M E D .

* Honorable Arthur L. Alarcón. United States Circuit Judge for the Ninth Circuit, sitting by designation.

1 Captain Crane explained at trial that "Lolita" referred to an underage girl, "VYB" meant "very young boy," and "VYG" meant "very young girl."

4 Mr. Vance referred to Captain Crane as "John" because Captain Crane informed him on March 3, 2005, that that was his first name. law of this Circuit. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) ("it is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc or by the Supreme Court").

7 Section 2G1.1(b)(2)(B) (2003) provides that for crimes relating to "Promoting A Commercial Sex Act or Prohibited Sexual Conduct" "[i]f the offense involved a victim who had . . . (B) attained the age of 12 years but not attained the age of 16 years, increase [base offense level] by 2 levels."

8 Application Note 1 to U.S.S.G. § 2G1.1 (2003) provided that: `Victim' means a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, a commercial sex act or prohibited sexual conduct, whether or not the person consented to the commercial sex act or prohibited sexual conduct. Accordingly, "victim" may include an undercover law enforcement officer.

9 The 2003 version of § 2A3.1 provided that: "`Victim' includes an undercover law enforcement officer."