U.S. vs. Patterson

James Patterson appeals several
issues related to his sentence for violation of 18 U.S.C.
§ 2423(a), which prohibits transporting a minor in interstate
commerce with intent that the minor engage in
prostitution. Among the issues presented is one of first
impression in this circuit: whether 18 U.S.C. § 2423(a) is
a “crime of violence” such that application of the career
offender guideline is appropriate in this case.

For the reasons explained below, we affirm the judgment
of the district court except with regard to the
district court’s enhancement of Patterson’s sentence for
“use of a computer.” On that issue we reverse and remand
for further proceedings consistent with this opinion.

I. Background
A. Factual Background
In 2005, James Patterson, a forty-two year old man,
met a fourteen year old girl (the “victim”) in Memphis,
Tennessee. The victim had run away from a group
home and had no money. Patterson encouraged her to
engage in prostitution. The victim began working as a
prostitute in a Memphis crack house for a pimp named
Larry Nelson. About two weeks later, Patterson asked
the victim if she would like to travel to Chicago. He told
her that in Chicago, prostitution was internet-based and
that she would not have to engage in “street-walking” to
solicit customers. Defendant’s counsel admitted to the
district court that defendant “held out” internet prostitution
as “something more attractive” than what the
victim had been doing at the time. The victim agreed to
travel with Patterson to Chicago.

On October 31, 2005, Patterson drove the victim
from Memphis to Schaumburg, Illinois. For two weeks,
the victim worked as a prostitute for Patterson. During
this time, the victim gave Patterson all of the money she
earned and stayed in his hotel. Another minor female
working as a prostitute for defendant’s half-brother
posted prostitution advertisements for the victim on
internet sites such as Craigslist. These advertisements
contained naked photos of the victim. The other
prostitute arranged the victim’s calls to johns through
the internet and drove her to calls as well.

Patterson used physical violence against the victim
several times. On one occasion, Patterson shoved the
victim against a wall and slapped her. On another occasion,
Patterson punched the victim, knocking her off a
chair, and stomped on her while she was on the floor.
After this incident, Patterson told the victim to take a
shower and prepare to work the street. On a call later
that night, a john, who saw bruises on the victim,
offered to “rescue her.” The victim went to live with the
man’s son. From the son’s house, she called her mother
in Memphis. The victim’s family had apparently been
looking for her and had spread the word in Memphis
that she was a missing and endangered child.

B. Procedural Background
Patterson was charged with knowingly transporting a
minor in interstate commere with the intent that the
minor engage in prostitution in violation of 18 U.S.C.
§ 2423(a). Defendant pled guilty pursuant to a written
plea agreement. The agreement explained that the Guidelines
“in effect at the time of sentencing” were to determine
Patterson’s sentence. The agreement anticipated
that Patterson would have an offense level of 28 and a
criminal history category of IV, which resulted in an
“anticipated advisory Sentencing Guidelines range [of] 110
to 137 months’ imprisonment.” These calculations were
“based on the facts now known to the government.”
Additionally, the agreement stated:

Defendant and his attorney and the government
acknowledge that the above Guideline calculations
are preliminary in nature, and are non-binding predictions
upon which neither party is entitled to rely.

Defendant understands that further review of the
facts or the applicable legal principles may lead the
government to conclude that different or additional
Guideline provisions apply in this case. Defendant
understands that the Probation Office will conduct
its own investigation and that the Court ultimately
determines the facts and law relevant to sentencing,
and that the Court’s determinations govern the final
Guideline calculation. Accordingly, the validity of
this Agreement is not contingent upon the probation
officer’s or the Court’s concurrence with the above
calculations and defendant shall not have a right to
withdraw his plea on the basis of the Court’s rejection
of these calculations.

The agreement also stated, in another section, that
“[d]efendant further acknowledges that if the Court does
not accept the sentencing recommendation of the
parties, defendant will have no right to withdraw his
guilty plea.”

During the plea colloquy, Patterson was placed under
oath and stated that he was fully satisfied with his attorney’s
representation, had reviewed the plea agreement,
understood all of the agreement’s terms, and understood
the consequences of pleading guilty. The defendant told
the district judge that he understood that the judge
was not bound by the plea agreement. The court asked:
Do you understand that I will not be able to determine
the actual guideline sentencing range for your case
until after you have pled guilty and a presentence
report has been completed; because of that, the sentence
calculation that I make may be different from
what you and your attorney or even what the plea
agreement contains. Do you understand that?
A: Yes.

The original Presentence Investigation Report (“PSR”)
had not treated Patterson as a career offender under
U.S.S.G. § 4B1.1 because the government and probation
office did not know that Patterson’s term of imprisonment
for a 1983 conviction had ended within the last
fifteen years, a requirement for counting an offense for
the purpose of the career offender guideline. See U.S.S.G.
§§ 4B1.1, cmt. n.1; 4B1.2, cmt. n.3; 4A1.2(e)(1). After filing
the original PSR, the probation office learned from the
Tennessee Department of Corrections that Patterson had
been released within the last fifteen years for the 1983
conviction. Thus, after Patterson’s plea colloquy, the
probation office supplemented its original PSR to reflect
its view that Patterson should be treated as a career
offender on the basis of his conviction under 18 U.S.C.
§ 2423(a) and his 1983 and 1999 convictions. See U.S.S.G.
§ 4B1.1(a). Using the 2007 Guidelines, which were in
effect at the time of Patterson’s sentencing, the Supplemental
PSR recommended a Guidelines range of 210 to
262 months. The Supplemental PSR also recommended
applying, among others, offense characteristic enhancements
for “unduly influenc[ing] a minor to engage in
prohibited sexual conduct” and “use of a computer.” See
U.S.S.G. §§ 2G1.3(b)(2)(B); 2G1.3(b)(3).

After the probation office submitted the Supplemental
PSR, defendant filed a pro se motion to withdraw
his guilty plea, although he was represented by counsel
at the time of the filing. In the motion, Patterson argued
that his plea was not made knowingly or voluntarily. The
district court held a hearing on defendant’s motion.
Defendant was represented by counsel at the hearing, and
counsel expressed his opinion that Patterson’s pro se
motion had no merit.

The district court ruled that it would not consider the
merits of the motion because it was not filed by counsel.
The district court additionally stated that even if it had
considered the merits, it would have denied it on the
grounds that it “ha[d] no merit.” The court informed
Patterson that he could file a motion for substitution
of attorneys if he wished. Despite the district court’s
ruling, Patterson stated at the hearing that his counsel
“promised [him] a sentence that [he] didn’t get” (although
at the time of the hearing, he had not yet been sentenced).
Defendant also said that he had only had ten
minutes to look at the plea agreement before he pled
guilty. However, the district court reminded Patterson
that he had earlier stated under oath that he had
reviewed the agreement and understood its terms, which
defendant acknowledged.

The district court adopted the Supplemental PSR’s
Guidelines calculations and sentenced Patterson to 262
months in prison followed by five years of supervised
release. The defendant did not ask the district court to
vacate his plea at sentencing but did object to the Supplemental
PSR’s application of the career offender provision
as well as the “undue influence” and “use of a computer”
enhancements.

Patterson now appeals his sentence on a number of
grounds.

II. Discussion
A. Evidentiary Hearing Regarding Plea Withdrawal
Patterson’s first argument is that the district court
should have held an evidentiary hearing with regard to
his motion to withdraw his plea. The district court
rejected Patterson’s motion to withdraw his plea because
it was filed pro se at a time when Patterson was represented
by counsel; the district court also stated that the
motion was meritless. The government argues that the
district court was correct to reject Patterson’s motion
because it was never properly before the court and also
because Patterson did not meet his burden of showing a
fair and just reason for withdrawal of the plea.

Abuse of discretion is the standard of review for both
a district court’s denial of a motion filed pro se by a
defendant represented by counsel, see United States v.
Chavin, 316 F.3d 666, 671 (7th Cir. 2002) (“[W]hether a
defendant may act as co-counsel along with his own
attorney, is a matter within the discretion of the district
court.”) (citing United States v. Tutino, 883 F.2d 1125, 1141
(2d Cir. 1989)), and for a district court’s denial of an
evidentiary hearing, see Osagiede v. United States, 543 F.3d
399, 408 (7th Cir. 2008).

The decision regarding whether to allow a defendant to
represent himself when he is also represented by counsel
is “ ‘solely within the discretion of the trial court.’ ” Chavin,
316 F.3d at 671 (quoting Tutino, 883 F.2d at 1141)). A
defendant does not have a “right” to such an arrangement.
See United States v. Gwiazdzinski, 141 F.3d 784, 787
(7th Cir. 1998) (“A defendant does not have an affirmative
right to submit a pro se brief when represented by
counsel.”) (citation omitted); see also United States v.
Singleton, 107 F.3d 1091, 1101 n.7 (4th Cir. 1997) (noting
that “[t]he cases reiterating the principle that courts
are not required to allow defendants to split the responsibilities
of the representation with an attorney are myriad”).
Indeed, this court has stated that such arrangements
are disfavored. Chavin, 316 F.3d at 672.

Here, the district court rejected Patterson’s attempt at
self-representation and advised him that he could file a
motion for substitution of counsel if he wished. In light of
the district court’s wide discretion to reject pro se submissions
by defendants represented by counsel, and
because the district court presented Patterson with an
alternative avenue that Patterson declined to pursue, we
conclude that the district court’s denial of Patterson’s
motion without an evidentiary hearing was not an abuse
of discretion.

However, even if Patterson had properly raised this
issue through counsel, the district court would not have
abused its discretion by denying the motion without an
evidentiary hearing. Federal Rule of Criminal Procedure 11
allows a defendant to withdraw a guilty plea “after the
court accepts the plea, but before it imposes sentence if . . .
the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). But a
defendant who states at a plea colloquy that his plea
was “freely and knowingly given . . . faces an uphill battle”
in convincing a judge that his reasons for withdrawal are
“fair and just” because representations made at a plea
colloquy are under oath and are given a “presumption
of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th
Cir. 1995). We have stated that district courts are “generally
justified in discrediting the proffered reasons for
the motion to withdraw and holding the defendant to
[his] admissions at the [plea colloquy].” Id.

At the hearing on defendant’s pro se motion to withdraw
his plea, Patterson stated that his lawyer “promised
[him] a sentence that [he] didn’t get” and that he did not
have enough time to review the plea agreement. While
on their face, those reasons appear compelling, we have
stated that “[c]laims of involuntariness or confusion that
in the abstract seem like sufficient reasons to allow a
defendant to withdraw his plea, or at least look into the
matter further, may be insufficient in the context of a
record containing substantial indications of voluntariness
and lack of confusion.” United States v. Trussel, 961 F.2d
685, 689 (7th Cir. 1992); see also Messino, 55 F.3d at 1248
(citation omitted). “One especially important consideration
is the defendant’s answers to the questions posed at
his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here,
defendant’s reasons to withdraw his plea plainly contradicted
his sworn statements during the plea colloquy.
Moreover, Patterson’s attorney, who was present at the
hearing, told the court he believed the pro se motion
lacked merit. It is also worth noting that defendant
did not indicate to the district court (and has not indicated
on appeal) that he would have presented any
other evidence of involuntariness or confusion at a
putative evidentiary hearing. Thus, even if defendant
had properly requested an evidentiary hearing regarding
his request to withdraw his guilty plea, based on these
facts, and in light of the heavy burden shouldered by a
defendant when requesting to withdraw a guilty plea, we
could not conclude that the district court abused its
discretion when it denied an evidentiary hearing.

B. Patterson’s Plea
Patterson argues that, even aside from his request for
an evidentiary hearing, the district court should have
vacated his guilty plea because his plea agreement was
based on the parties’ “mutual mistake” regarding the
application of the career offender guideline, or, in an
alternative reading of the same events, because the government
“breached the agreement.” The government
maintains that Patterson’s “underestimat[ion of] his
sentence” at the time he entered his plea is not a valid
reason to permit him to withdraw his plea.

Because, as discussed above, Patterson never properly
requested that the district court vacate his guilty plea, we
review for plain error. Puckett v. United States, ___ U.S. ___,
129 S.Ct. 1423, 1428 (2009) (finding that Rule 52(b)’s plainerror
test applies to a forfeited claim that the government
failed to meet its obligations under a plea agreement).
Under plain error review, the defendant must
establish (1) an error (2) that was plain, (3) affected the
defendant’s substantial rights, and (4) seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings. Id. at 1429; United States v. Julian, 427 F.3d
471, 481 (7th Cir. 2005).

Our precedent establishes that plea agreements are
governed by ordinary contract principles. United States
v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). In Barnes, we
stated that there must be a “meeting of the minds” on all
essential elements of a guilty plea in order for the plea
to be valid, and that, “[a]t least in theory, ambiguity in
an essential term or a mutual mistake about the meaning
of such a term can invalidate [a plea].” Id. As in the
instant case, in Barnes, the defendant argued that his
plea was invalid because neither he, the prosecutor, nor
the court realized at the time of the plea colloquy that he
would be sentenced as a career offender. Id. Though
the Barnes court acknowledged that there must be a
meeting of the minds regarding the agreement’s essential
terms, it found that the defendant’s guilty plea, which
was made pursuant to then-Rule 11(e)(1)(B), did not
contemplate the actual punishment as an essential term
of the agreement. Id. Rather, the parties left “the determination
of a sentence to the discretion of the district
court, as guided by the sentencing guidelines and by
the applicable criminal statutes.” Id. Thus, the court concluded
that the plea agreement was valid and enforceable.

12 No. 08-2240
This case is similar to Barnes. While it is true that
Patterson’s plea agreement “anticipated” a sentence
lower than the one he ultimately received, the agreement
stated several times that it did not ultimately control
the sentence imposed by the district court. Specifically,
the agreement stated that its Guidelines calculations
were “non-binding predictions upon which neither party
is entitled to rely” and also that the defendant could not
withdraw his plea if the district court rejected the agreement’s
Guidelines calculations. Moreover, the agreement
explicitly stated that it is not a Fed. R. Crim.
P. 11(c)(1)(C) plea, in which the district court is bound by
the sentencing recommendations contained in the agreement.
See Barnes, 83 F.3d at 938 (noting that agreements
made under Rule 11(e)(1)(C)—a previous version of
Rule 11(c)(1)(C)—would include the defendant’s punishment
as an essential term). It is thus clear here, as in
Barnes, that the defendant’s actual sentence was not an
essential term of the agreement, so the agreement
cannot be voided because of “mutual mistake” with
regard to the sentence imposed.

Patterson also argues that the government breached the
agreement by arguing for a higher sentence after it
learned that Patterson was possibly eligible for sentencing
as a career offender. However, the government
never agreed to not argue for a different sentence. The plea
agreement specifically stated that “[d]efendant understands
that further review of the facts or the applicable
legal principles may lead the government to conclude
that different or additional Guideline provisions apply
in this case.” While Federal Rules of Criminal Procedure
11(c)(1)(B) and (C) allow formation of an agreement that
binds the government, Patterson’s agreement was not
made pursuant to these provisions. Accordingly, the
government did not breach the terms of the plea agreement.
See United States v. Linder, 530 F.3d 556, 564-65
(7th Cir. 2008) (rejecting argument that government
breached the plea agreement by advocating for an enhancement
where agreement was not made pursuant to
Federal Rules of Criminal Procedure 11(c)(1)(B) and (C)).

C. Career Offender Enhancement
The district court determined that Patterson was a
career offender under the Sentencing Guidelines. Predicate
to this conclusion was the district court’s finding that
Patterson’s conviction for transporting a minor in interstate
commerce for the purpose of prostitution was a “crime
of violence” under U.S.S.G. § 4B1.2. Patterson argues
that 18 U.S.C. § 2423(a) is not a crime of violence
under the Supreme Court’s decision in Begay v. United
States, ___ U.S. ___, 128 S.Ct. 1581 (2008), and that his
sentencing as a career offender was therefore error. The
government argues that 18 U.S.C. § 2423(a) is a crime
of violence because it presents a great risk of physical
injury to its victims and is a purposeful, aggressive,
and violent crime.

We review the district court’s interpretations of the
Sentencing Guidelines de novo. United States v. Howard,
352 F.2d 818, 831 (7th Cir. 2001).

The Sentencing Guidelines define a crime of violence as:

Any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.

U.S.S.G. § 4B1.2 (2006). The government claims that
Patterson’s offense falls under the second clause of the
second prong of this definition (sometimes called the
“residual clause”) because it “involves conduct that
presents a serious potential risk of physical injury to
another.” To determine whether a conviction qualifies as
a crime of violence, courts use a “categorical approach,”
under which the Court looks to the statutory elements
of the offense and not to the particular facts of the underlying
conviction. See Taylor v. United States, 495 U.S. 575,
600 (1990).

The Supreme Court’s decision in Begay analyzed
whether driving under the influence should be considered
a crime of violence under the Armed Career
Criminal Act (ACCA). See Begay, 128 S.Ct. at 1583.1 The
Court first determined that the example crimes listed in
the first clause of the second prong of the statute (“burglary,
arson, extortion, and crimes involving the use of
explosives”) limited the types of crime covered by the
residual clause (crimes “that present[ ] a serious potential
risk of physical injury to another”). The Court reasoned
that the residual clause covered only “crimes that are
roughly similar, in kind as well as in degree of risk posed,
to the examples themselves.” Id. at 1587. To help determine
whether the defendant’s crime is similar in kind to the
enumerated examples, Begay examined whether the
crime “typically involve[s] purposeful, ‘violent,’ and
‘aggressive’ conduct.” The Court found that drunk driving
was more appropriately understood as a crime of negligence
or recklessness rather than one of purpose and
deliberation and therefore concluded that drunk driving
was not a crime of violence. Id.

The Supreme Court recently applied the Begay test in
Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687 (2009).
In Chambers, the Supreme Court held that a convict’s
“failure to report” is not a crime of violence. Id. at 691.
Although the government claimed that failure to report
should be understood as a crime of violence because
individuals who fail to report are likely to use violence
to avoid recapture, the Court held that failure to report
was not a crime of violence because “the crime amounts
to a form of inaction, a far cry from the purposeful, violent,
and aggressive conduct potentially at issue when an
offender uses explosives against property, commits arson,
burgles a dwelling or residence, or engages in certain
forms of extortion.” Id. at 692. The Chambers Court did not
definitively indicate whether violence that may attend
a crime, but is not an element of the crime, should be
considered in determining whether to treat a statutory
violation as a “crime of violence.” The Court instead
stated that “even if we assume for argument’s sake the
relevance of violence that may occur long after an
offender fails to report, we are not convinced [by the
data presented by the government supporting that proposition
in this case].” Id. (surveying the data provided by
the government and concluding that it showed a relatively
low incidence of violence attending arrests of
individuals who had failed to report).

While there have been several circuit court decisions
prior to Begay holding that Section 2423(a) was a crime
of violence, see, e.g., United States v. Curtis, 481 F.3d 836,
838-39 (D.C. Cir. 2007); United States v. Carter, 266 F.3d
1089, 1090-91 (9th Cir. 2001), only one court has had
occasion to consider the question after Begay, see United
States v. Williams, 529 F.3d 1 (1st Cir. 2008), cert. denied, ___
U.S. ___, 129 S.Ct. 1580 (2009). In Williams, the First Circuit
focused first on the risk of harm accompanying a violation
of 18 U.S.C. § 2423(a), finding that “indecent sexual
contact crimes perpetrated by adults against children
categorically present a serious risk of physical injury.” Id.
at 5. The court was unpersuaded by the defendant’s
argument that his crime was not violent because he was
not “sexually active” in the commission of the offense
but rather, “merely facilitated others’ sexual contact
with the minor.” Id. Rather, the court found that by
transporting the minor with the intent that the minor
engage in prostitution, the defendant “placed the
minor in harm’s way and led ineluctably to a sex act . . .
between the minor and an older man unconcerned with
her welfare.” Id. The court also noted that the commercial
aspect of 18 U.S.C. § 2423(a)—as opposed to simple
seduction of a minor—increased the level of risk to the
minor because it increased the risk of physical abuse from
multiple partners and the risk of contracting a sexually
transmitted disease. Id. Finally, Williams noted that
Begay did not provide much guidance for its decision.

Because a new test is introduced and because the
Court’s decision is itself close, it is hard to be absolutely
certain how a majority of the Justices would
apply the test to the crime at issue here—a crime that
falls neither within the safe harbor of offenses with
limited scienter requirements and uncertain consequences
(like DUI), nor among those that have deliberate
violence as a necessary element or even as an
almost inevitable concomitant. Adjectives like “purposeful”
and “aggressive” denote qualities that are
ineluctably manifested in degree and appear in different
combinations; they are, therefore, imprecise aids.

Id. at 7. Despite the ambiguity contained in Begay, however,
the First Circuit found that, “[u]nlike DUI, [a violation
of 18 U.S.C. § 2423(a)] is purposeful and the perpetrator
is aware of the risks that the prostituted minor
will face” and that “the crime is implicitly (and sometimes
explicitly) aggressive, and coercion of the minor is
virtually inherent.” Id.

Title 18, Section 2423(a) makes it illegal to “knowingly
transport[ ] an individual who has not attained the age of
18 years in interstate or foreign commerce . . . with intent
that the individual engage in prostitution.” 18 U.S.C.
§ 2423(a). Defendant argues that transportation of a
minor in interstate commerce with the intent she engage
in prostitution is not “similar” in kind to the crimes listed
in Begay (burglary of a dwelling, arson, extortion, and
crimes involving explosives). He claims that the example
crimes all suggest the use of force or violence, which
18 U.S.C. § 2423(a) does not require. Patterson also
argues that the government’s emphasis on the social ills
associated with prostitution is misplaced. He points out
that 18 U.S.C. § 2423(a) does not punish prostitution, per
se, and notes that a violation of the statute does not even
require that prostitution take place.

The government argues that 18 U.S.C. § 2423(a) prohibits
purposeful, aggressive and violent conduct and therefore
is similar in kind to the crimes enumerated in the
statute. First, the government says that the crime is
“purposeful” because it requires the perpetrator to knowingly
transport a minor to another state as well as intend
that the minor to engage in prostitution. The crime is
therefore “deliberate,” unlike the strict liability offenses
contrasted in Begay, in which “the offender need not have
had any criminal intent at all.” Begay, 128 S.Ct. at 1586-87.
Second, the government contends that 18 U.S.C. § 2423(a)
contemplates “aggressive” conduct because commission
of the crime puts the perpetrator into a position of
power over the minor such that an element of coercion is
inherent in the crime. The government claims that the
crime, in this way, is “analogous to kidnaping,” which the
commentary to U.S.S.G. § 4B1.2 lists as an example of a
crime of violence. See U.S.S.G. § 4B1.2 cmt n.1. (However,
kidnaping requires that the defendant use force to
prevent the victim from escaping, an element not required
for a conviction under 18 U.S.C. § 2423(a).) Finally,
the government argues that 18 U.S.C. § 2423(a) is a “violent”
offense because the perpetrator must intend the
minor to engage in prostitution and therefore, according
to the government, “know[s] that the minor will
most likely be raped, assaulted, or abused by pimps and
customers.”

We agree with the government that the crime at issue
is “purposeful” and “aggressive.” The closest question
is whether a violation of 18 U.S.C. § 2423(a) is “violent.”2
On the one hand, Patterson is correct that the statute
does not contain as an element any use of violence or
force. On the other hand, the government is correct that
violation of the statute creates a significant risk of violence
against the victim by the perpetrator as well as third
parties. Ultimately, we are persuaded by the government’s
position that the risk of violence which attends a
violation of 18 U.S.C. § 2423(a) justifies its classification
as “violent” and that 18 U.S.C. § 2423(a) is therefore
“similar in kind” to the Guideline’s enumerated crimes.
While the Supreme Court has not definitively indicated
whether “attendant risks” should be taken into account
when analyzing whether a crime is similarly violent, see
Chambers, 129 S.Ct. at 692 (assuming “for the sake of
argument” that attendant risk of violence was relevant),
consideration of this factor would appear to be appropriate
in light of the fact that the second clause of
U.S.S.G. § 4B1.2(2) itself refers to the “potential risk”
inherent in crimes of violence. See U.S.S.G. § 4B1.2(2) (a
“crime of violence” is “burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another”) (emphasis added).

Consideration of risks attendant to commission of a
crime is also supported by U.S.S.G. § 4B1.2(2)’s explicit
enumeration of burglary as a crime of violence. Like
Section 2423(a), burglary does not require the use of force
or violence.3 But the Supreme Court reasoned in Taylor
that Congress included burglary among the “crimes of
violence” in the ACCA because
Congress thought that certain general categories of
property crimes . . . so often presented a risk of injury to
persons, or were so often committed by career criminals,
that they should be included in the enhancement
statute even though, considered solely in terms of
their statutory elements, they do not necessarily
involve the use or threat of force against a person.

Taylor, 495 U.S. at 597. Likewise here, a violation of 18
U.S.C. § 2423(a) does not require violent conduct, but it
presents a substantial risk that violence will occur. Moreover,
we agree with our colleagues in the First Circuit,
that it is “surpassingly difficult to see how burglary could
be treated as a violent crime yet child trafficking exempted.”
See Williams, 529 F.3d at 8.

A violator of 18 U.S.C. § 2423(a) engages in purposeful
conduct that exposes the crime’s victim to a foreseeable
risk of violence, physical injury, and disease. We therefore
conclude that 18 U.S.C. § 2423(a) is “similar in kind”
to the enumerated crimes in U.S.S.G. § 4B1.2(2) and is a
crime of violence for purposes of the Sentencing Guidelines.
See Begay, 128 S.Ct. at 1587; United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008).

D. “Undue Influence” and “Use of a Computer” Sentence
Enhancements

Patterson also objects to the district court’s enhancement
of his sentence for “Undue Influence” and “Use of a
Computer.” When reviewing a district court’s application
of sentencing enhancements, we review the district
court’s legal interpretations de novo, United States v.
Katalinic, 510 F.3d 744, 746 (7th Cir. 2007), and its factual
findings for clear error, United States v. Bryant, 557 F.3d
489, 500-01 (7th Cir. 2009). The clear error standard is
significantly deferential and an appellate court “may
only reverse a factual finding under this standard when
it is left with a ‘definite and firm conviction that a
mistake has been committed.’ ” United States v. Gerstein,
104 F.3d 973, 980 (7th Cir. 1997) (quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985)) (other citations
omitted).

1. Undue Influence
Sentencing Guideline § 2A3.2(b)(2)(B) requires a two
level enhancement where a participant “unduly influenced
the victim to engage in prohibited sexual conduct.” The
commentary to the Guideline instructs courts to closely
consider the particular facts of the case to determine
whether a “participant’s influence over the victim
compromised the voluntariness of the victim’s behavior.”
U.S.S.G. § 2A3.2, cmt. n.3. This court has stated that the
defining characteristic of undue influence is that it
involves “a situation where the ‘influencer’ has succeeded
in altering the behavior of the target.” U.S. v. Mitchell, 353
F.3d 552, 557 (7th Cir. 2003).

Here, the district court applied the enhancement
because the defendant “was the one” or “was one of the
people” who helped involve the victim with prostitution.
This finding was supported by the record. The defendant
was a forty-two year old man and the victim was a fourteen
year old girl at the time of the crime. The victim
testified to the grand jury that she had never worked in
prostitution before the defendant encouraged her to try
it. Moreover, the victim was destitute and penniless
when Patterson began urging her to travel to Chicago
with him to engage in internet-based prostitution, making
her more vulnerable to his influence.

Because the record supports the district court’s application
of the enhancement, and because there is no basis for
a definite and firm conviction that a mistake has been
committed, we affirm the district court’s application of
the “undue influence” enhancement.

2. Use of a Computer
Patterson argues—and the government concedes—that
the district court erred when it applied the U.S.S.G.
§ 2G1.3(b)(3) enhancement for “use of a computer.”

Under this provision of the Sentencing Guidelines, a
defendant’s offense level is increased two levels:
[i]f the offense involved the use of a computer or an
interactive computer service to . . . entice encourage,
offer, or solicit a person to engage in prohibited sexual
conduct with the minor . . . .

U.S.S.G. § 2G1.3(b)(3). The commentary, however,
further provides that “[s]ubsection (b)(3) is intended to
apply only to the use of a computer or an interactive
computer service to communicate directly with a minor
or with a person who exercises custody, care, or supervisory
control of the minor.” Id. § 2G1.3 cmt. n. 4. In this
case, no computers were used to “communicate directly”
with the victim or the victim’s custodian, so the enhancement
does not apply. We therefore reverse and remand
with regard to this enhancement in order to ensure that
it played no part in Patterson’s sentence.

E. Use of the 2007 Sentencing Guidelines
Finally, Patterson argues that the district court’s use of
the 2007 Sentencing Guidelines to calculate his sentence
violated the ex post facto clause of the Constitution.
Patterson never raised this argument before the district
court, so we review for plain error. See United States v.
Baretz, 411 F.3d 867, 875 (7th Cir. 2005).

Patterson’s argument is foreclosed by United States v.
Demaree, 459 F.3d 791, 795 (7th Cir. 2006), which held that
a change in the Sentencing Guidelines that expands the
guidelines range for a crime does not render application of
the later-Guidelines an ex post facto law. Defendant
argues that Demaree did not take Kimbrough v. United
States, 552 U.S. 85 (2007) or Gall v. United States, 552 U.S. 38
(2007) into account. However, the holding of Demaree
has been applied after Kimbrough and Gall, see, e.g., United
States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008), and
does not contradict those decisions. Defendant’s other
argument, notwithstanding Demaree, is that offenders
who win their sentencing appeals “run the risk of a
remand for a significantly longer sentence” under a new
version of the Guidelines. However, as the government
points out, 18 U.S.C. § 3742(g)(1) directs that defendants
who win their sentencing appeals be resentenced under
the Guidelines “in effect on the date of the previous
sentencing.”

Because Patterson has presented no compelling reason
to revisit Demaree, and because his argument regarding
the potential for higher sentences on remand has no
merit, we reject his contention that the district court plainly
erred by applying the 2007 Guidelines.

III. Conclusion
For the reasons explained above, we AFFIRM the judgment
of the district court except with regard to the “use of
a computer” sentence enhancement. With regard to that
issue, we REVERSE and REMAND for further proceedings
consistent with this opinion.