In 2021, Gary Lee Hodges connected online with a persona named 'Alice,' who claimed to have an 11-year-old and a 13-year-old daughter. Hodges engaged in extensive conversations about engaging in 'family sexual relations' with the children. Unbeknownst to Hodges, Alice and her daughters were fictitious personas created by federal law enforcement officers in West Virginia. Hodges traveled from Montana to West Virginia to meet them, where he was arrested upon arrival. He pleaded guilty to two counts of attempted enticement of a minor under 18 U.S.C. § 2422(b). At sentencing, the district court applied two enhancements under U.S.S.G. § 2G1.3: a two-level enhancement for using a computer to entice a minor, and an eight-level enhancement because the offense involved a minor under age 12. Hodges did not object to these enhancements at the time. The court calculated a sentencing range of 324 to 405 months and sentenced him to 324 months followed by 15 years of supervised release. Hodges later filed a motion under 28 U.S.C. § 2255, which led to the vacation of his original judgment and the opportunity to appeal the sentencing enhancements, which he now challenges on the grounds that the enhancements cannot apply to fictitious minors.
The Fourth Circuit reviewed the application of the enhancements for plain error because Hodges failed to object in the district court. To prove plain error, Hodges needed to show that an error occurred, that the error was plain or obvious, and that it affected his substantial rights. The court first addressed whether the term 'minor' in the Guidelines unambiguously excluded fictitious persons. The court found that dictionary definitions of 'minor' were silent on whether the person must be real, and the plain language of the Guidelines did not resolve the ambiguity. The court noted that the underlying statute, 18 U.S.C. § 2422(b), has been interpreted by multiple circuits to apply to attempts involving fictitious minors, making it anomalous to exclude fictitious minors from the sentencing enhancements that flow from that conviction. Furthermore, the court reasoned that the purpose of the enhancements is to punish specific conduct—such as using a computer to entice a minor—rather than the actual harm inflicted on a real victim. Because the term 'minor' was ambiguous, the court turned to the Sentencing Guidelines commentary, which explicitly defines 'minor' to include 'an individual, whether fictitious or not, who a law enforcement officer represented to a participant… had not attained the age of 18 years.' The court held that this commentary falls within the zone of ambiguity and is entitled to deference as the official position of the Sentencing Commission. Consequently, the district court did not err in applying the enhancements. Even assuming there was an error, the court found it was not 'plain' because there was no settled law from the Supreme Court or the Fourth Circuit establishing that such application was erroneous, and the lack of uniform contrary authority in sister circuits meant the error was not obvious.
The decision confirms that federal sentencing enhancements for child enticement offenses apply even when the minor involved is a fictitious persona created by law enforcement. This resolves the ambiguity in the Fourth Circuit regarding the definition of 'minor' in U.S.S.G. § 2G1.3, aligning the Guidelines with the interpretation of the underlying criminal statute. The ruling limits the ability of defendants to challenge sentencing calculations based on the non-existence of the victim, provided the defendant believed the victim was real. The judgment is affirmed, and no remand is ordered.