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Case number 19-3060, United States of America versus Ronnie Davis appellant.

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Ms.

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Ernest for the appellant, Mr. McGovern for the appellee.

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Good morning.

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Good morning, Your Honor.

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I will reserve three minutes of my time.

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May it please the court

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My name is Robin Ernest, and I represent appellant Rodney Davis in this appeal.

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Ms.

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Davis appeals her plea and sentencing from a single conviction of traveling to engage in sex with a minor on grounds of ineffectiveness.

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I'm sorry, I'm having a little trouble hearing you.

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Could you pull the microphone a little bit closer?

[00:00:47] Speaker 03:
Certainly, Your Honor.

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Is this better?

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I can also stand closer.

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Thank you.

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She appeals her plea and sentencing from a single conviction of traveling to engage with sex with a minor on grounds of ineffective assistance of counsel.

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Specifically, she claims counsel was deficient in advising her to agree to an incorrect statement of law in her plea.

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That statement was that four additional offense-level enhancements applied to her sentence under Section 283.1b, four offenses that involved a minor.

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To the contrary, the section's plain language

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Its enhancement supplied only to offenses involving victims.

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Its text does not even include the word minor, and victim and minor are defined differently.

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But what Ms.

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Davis knew, and what the record reflects, was that her offense did not involve an actual victim.

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In contrast, because the guidelines define minor to include a fictitious individual under age 18, Ms.

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Davis knew her offense involved a minor, and since minor was the term used in the plea agreement, she signed the agreement.

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Thus, Davis presents a colorable argument before this court that had counsel advised her that the plain language reading of Section 2A enhancements applied only to victims, not minors,

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as her agreement read, she would not have agreed to four additional enhancements for her victimless offense.

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And because the record does not allow this court to conclusively determine that Ms.

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Davis would have agreed to textually inapplicable enhancements in her plea, remand for an IAC hearing is warranted under U.S.

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versus Rashad.

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Ms.

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Davis's... Ms.

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Davis saw the pre-sentencing recommendation, the pre-sentencing report that... I'll do this.

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You saw the pre-sentence report, and that included a recommendation of the enhancement and made no objections to that.

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So that seems in tension with your argument that she was under the impression that she would not have such an enhancement.

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She did not see the pre-sentencing report until after she signed her plea and had her plea here.

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But she could have raised an objection at the sentencing hearing and said, I didn't know this was going to happen.

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She did not.

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Sorry for the interruption.

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Relying on her counsel to object or to not object to legal errors, her counsel, that is correct.

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He did not object to the court's extra text insertion of fictitious into the plain text of Section 2A in order to force the four additional enhancements.

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Did she speak at sentencing?

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She only spoke in sentencing and aliquotia.

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So after everything had been done.

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But she had an opportunity at that point to say, wait a minute.

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That if she had known your honor, if she had since the time of arrest, she had been detained in the DC jail.

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She was in solitary confinement because that's

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was the treatment at the time for transgender individuals.

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She did not have access to the guidelines in order to compare the language in her plea with the language in the guidelines in order to

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be able to determine that in fact the plea agreement misstated the guidelines.

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That the guidelines in fact did not apply to offenses involving a minor, which of course was her offense.

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She was smart enough to know that if the plea agreement had in fact said

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that the enhancements apply to offenses involving a victim, she knew that hers was a victimless offense.

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So she would have... What if she had, at this meeting, encountered not a fictitious child, but in fact, a super young looking police officer, and then had gotten that super young looking police officer that she thought was

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teenage child.

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I know eight years old probably isn't gonna work.

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Let's just say it's a it's a minor nonetheless.

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Um and transported that police officer across state lines for purposes of sexual misconduct.

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Would there be a victim in that case?

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So that actually is under a different um

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provision of the guidelines, but the way the guidelines define victim, it does include an undercover officer.

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So if the undercover officer had been posing as- But your textual arguments about victim involving actual crime, as the arguments in your brief, actual harm, physical injury, those types of things would apply just the same.

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The police officer is just as fictional a victim as the

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non-corporeal victim in this case?

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Except for the fact that the commentary for the offense

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guidelines under Section 2A expressly define an undercover officer who is posing as someone who is underage to actually include a victim.

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So under your hypothetical, yes, that would be a victim.

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So it seems clear that the Sentencing Commission wanted to capture fictional victims, at least if they are police officers.

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Why would they want to include that fictional victim, but not the type of fictional victim we have here?

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Because in both cases, there would be no actual, the charged conduct would not actually happen.

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Because in 2004, Your Honor, the commission expressly removed that type of travel offense from out of sentencing under Section 2A and provided a lower base offense level for it and provided a separate definition of minor.

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Minor includes a fictitious individual being offered by an undercover agent for

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sexual services, but it also can include an undercover officer who themselves is posing as an underage individual being offered for sex.

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So under the plain text structure of section, the travel offense guidelines, I will call them, it's actually section 2G.

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It allows for the hypothetical, Your Honor, that you expressly identified.

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And that would be when there is a victim in a undercover officer posing as an over, as an underage child.

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are an actual underage child, then that would be sentenced more severely under the cross-reference section of 2A3.1C, which was employed here.

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But because that's not the facts of this case, in fact, the undercover officer, the court did identify that in other cases,

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there had been an undercover officer had posed as an underage child.

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And in those cases, they were sentenced under the 2A, 3.1B enhancement sections identified here.

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If I recall correctly, at least two other circuits have rejected this very argument.

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How was it?

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And we had not spoken, have not yet spoken.

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How was it, how, how, it's going to be how that can meet the Strickland standard, given that the very argument has been rejected in other courts.

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The, um, the circuits that were identified by a Kelly, the cases that were identified by Kelly, um, which took a extra textual interpretation were cases which were adjudicating a sentence

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prior to the 2004 amendment so there was not the new offense travel offense guidelines had not been created so at that time the only route or.

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sentencing a travel offense, which is what Miss Davis was convicted of, was through Section 2A.

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So what they did in those cases was they looked to the intent of... Sorry.

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That section deals mainly with, it's titled sex abuse and attempted sex abuse.

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So those cases look to the general intent of those guidelines, which was, they felt, to punish sex abuse and attempted sex abuse the same.

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And that's one of the reasons that the commission in 2004 moved out travel offenses, because in those instances,

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don't necessarily have an actual victim.

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You have and use the definition of minor, which is what Ms.

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Davis was convicted of, traveling for illicit sex with a minor as defined differently from victim.

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So,

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Because there is this unclear language in the plea agreement that she read that she thinks now the enhancements are applicable to her case because it uses the language minor as opposed to the actual language in the guidelines, which is victim.

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She signs the plea agreement.

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She's not told she's not told otherwise.

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And her counsel doesn't object to the extra text reading of fictitious into those guide into the exact guideline language in order to force.

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application of the enhancements under Section 2A, which would not otherwise be applicable because they only deal with victims.

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And if I can just answer your sort of out-of-circuit question, if I could expand the bound that, Your Honor.

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Very quickly, kids.

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Thank you, your honor.

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The cases of U.S.

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versus Winston and U.S.

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versus Glover from this court both have said that for outer circuit cases that take an interpretation of a statute or guidelines that's contrary to the plain text.

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that this court is not bound by their reasoning, and especially in instances where, as here, the appellee does not address the textualist argument as to why it, in itself, would be wrong, then they are not inclined.

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And then US versus Winstead did not accept as controlling the out-of-circuit cases.

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Unless my colleagues have any questions.

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Thank you very much.

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We'll hear from the government now.

[00:12:01] Speaker 03:
Thank you.

[00:12:03] Speaker 01:
Good morning.

[00:12:16] Speaker 01:
May it please the court, Michael McGovern, on behalf of Appellee of the United States.

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Appellant's sentence should be affirmed because her counsel did not perform efficiently when he took the position.

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that a four-point sentencing enhancement applied given that the child appellant believed she was traveling across state lines to sexually abuse was only eight years old.

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With respect to the ineffective assistance claim, although appellant presents an issue of statutory interpretation that has yet to be decided by this circuit, the question before this court today is not whether it would adopt appellant's interpretation, but whether defense counsel's failure to adopt that interpretation at the time of appellant's plea fell below the wide range of reasonable professional assistance or competence demanded of attorneys in criminal cases.

[00:13:07] Speaker 01:
It did not.

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It was not obvious from the plain text of guidelines 2A3.1 that the undefined term victim excludes virtual victims that are not real children.

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In fact, far from being obvious at the time of the appellant's plea, three circuits, the sixth circuit, the 10th circuit, and the 11th circuit had rejected appellant's arguments.

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Those circuits looked to the fact- What's your answer to sort of the plain text argument that victim

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means a real person in any sort of ordinary use of that term.

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And actually under the guidelines, they describe things like 2A3.1B4 if the victim sustained permanent or life-threatening injury.

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There's repeated references throughout there to things that could only happen to an actual person.

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So how do you reconcile guidelines in that sense?

[00:14:06] Speaker 01:
Your honor, to the extent that the guidelines involve certain enhancements that could only apply to real or live victims, those couldn't possibly be applicable to a virtual victim.

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But those guidelines similarly would be inapplicable to victims of attempt crimes.

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And these guidelines were intended to provide the enhancements that were applicable not only to completed crimes, but also to a different meaning for victim for attempt crimes rather than completed crimes shows up is one word in the guidelines.

[00:14:41] Speaker 04:
I think we have to give it a single meaning.

[00:14:44] Speaker 01:
Yes, your honor.

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The government's contention is that the meaning of victim is the object of one's criminal conduct.

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And here the object of the criminal conduct of miss Davis was the virtual victim that was created by the law enforcement officer and that definition would apply to permit the enhancements to be applied to attempt crimes as well as.

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to completed crimes, which was clearly the intent of the Sentencing Commission.

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And the term victim, the definition that appellant has proposed that one has to suffer harm would exclude any type of enhancement or a victim to apply to any attempt crime, which is very clearly as the title of the section not was provided.

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Are there other places in the guidelines, you're more familiar with them than I am, that use victim

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refer to fictional victims or is this the only place?

[00:15:38] Speaker 01:
Well, your honor, I will note that in, um, and this is discussed, um, in, in the six 11th circuit cases that we cite in our brief, that the term victim, uh, was expansively defined in guideline two, a 3.2.

[00:15:54] Speaker 01:
This was at a time prior to the 2004 amendments.

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And at that time,

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In the 2000 amendments to that particular guideline, the Commission defined victim expansively to include, as Your Honor noted when speaking with the Pellants Council, undercover officers posing as underage individuals.

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Those individuals are not real underage individuals, rather they're fictitious individuals.

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And the commission was clear that the reason that it was doing this, and I'll quote from the language, the amendment adds several definitions, including clarifying that victim includes an undercover police officer who represents to the perpetrator of the offense that the officer was under the age of 16.

[00:16:36] Speaker 01:
This change was made to ensure that offenders who are apprehended in an undercover operation are appropriately punished.

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And so their amendment, which clarified and they referred to it as a clarification, clarified that victim's definition should include undercover police officers posing as underage individuals was to make sure to clarify that they intended to punish those caught in sting operations, which did not involve actual children.

[00:17:08] Speaker 04:
Are there other, are there other places in the guidelines that use this term victim in this expansive way?

[00:17:16] Speaker 01:
Your Honor, I'm not familiar enough to answer that question authoritatively.

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But I will note that one of the points that appellant makes is that the term victim would be absurd if it were to be included for the enhancement that a victim was abducted.

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But in fact, because these guidelines are punishing the intent of the individual, and they're meant to punish the culpability for one's criminal intent rather than the effect of their criminal conduct,

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If the undercover represents, I have abducted a child just intent.

[00:17:50] Speaker 04:
I mean, actions to effectuate that intent as well.

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Right.

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It's punishing the combination of intent and actions taken to someone could sit in their room and intend to do something.

[00:18:02] Speaker 04:
But what happened here is you had an intent and then steps were taken to effectuate that intent as well.

[00:18:09] Speaker 01:
That's correct, Your Honor.

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But as the Sixth and Eleventh Circuits noted, the purpose behind these particular enhancements, the reason these enhancements are adding time to the criminal punishment is because they are intending to punish the intent of the actor towards the individual's age, not the conduct.

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And again, they point to the fact that

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Inchoate crimes are punished in the same way that committed crimes are here.

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And when that's the case, when they're intending to punish them in the same way, it's because they are focused on the intent of the actor, that the criminal culpability arises from the actor's intent.

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Do the guidelines use the word victim for other inchoate crimes as well?

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I'm not sure that I can answer that authoritatively, Your Honor.

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I apologize.

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traveled across state lines with the intent to have sex with a minor.

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It didn't have a specific minor in mind.

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Would that violate 2423B?

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The question is, if the actor traveled

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with an intent to engage in a sex act with an individual?

[00:19:36] Speaker 01:
I can try to give a more specific hypothetical.

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Imagine someone lives in DC, writes in a diary, I'm going across state lines in order to find children to have sex with and then cross the state line.

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and then writes in the diary, I've now crossed the state line in order to have sex with children.

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That person doesn't have a specific child in mind.

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Is that a violation of 2425?

[00:20:22] Speaker 01:
Your honor, I believe that it would be, I believe that it would meet the elements.

[00:20:28] Speaker 01:
I haven't specifically looked at that issue, whether there would need to be a specific object of the sexual abuse.

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But I believe that if the intent element were met and the travel actus reus element were met, that yes, that would meet the definition.

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What about imagine

[00:20:52] Speaker 02:
Oh, that's okay.

[00:20:55] Speaker 01:
I see that my.

[00:20:57] Speaker 04:
I had a quick question about the appeal waiver in this case.

[00:21:01] Speaker 01:
Yes, your honor.

[00:21:01] Speaker 04:
The district court did not detail its terms at all, but in fact, even worse at sentencing described the context in which the appeal waiver would not apply, but didn't describe all of them.

[00:21:16] Speaker 04:
At transcript 143.

[00:21:19] Speaker 04:
Why is that not?

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serious problem for an appeal waiver to discuss a couple exceptions, but not all of them.

[00:21:31] Speaker 01:
I apologize, Your Honor.

[00:21:33] Speaker 01:
You referred to the transcript at

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143, the sentencing transcript at 143.

[00:21:37] Speaker 04:
I think it may be JA 143.

[00:21:39] Speaker 01:
Well, Your Honor, as an initial matter, I would note that any misdescription at sentencing wouldn't necessarily affect the validity of appeal waiver that was entered into knowingly, intelligently, and voluntarily during the plea hearing.

[00:21:52] Speaker 01:
And during the plea hearing, there was not a misdescription.

[00:21:55] Speaker 04:
Pleas can still be withdrawn or clarified at sentencing, right?

[00:22:00] Speaker 04:
The terms of it?

[00:22:02] Speaker 04:
What did you say?

[00:22:02] Speaker 04:
Wait a minute, I didn't realize that.

[00:22:07] Speaker 04:
before final judgment is entered?

[00:22:10] Speaker 04:
No judgment has been entered yet on this plea at this stage.

[00:22:17] Speaker 04:
I don't want to make that issue.

[00:22:18] Speaker 04:
What I want to know is, let's assume that I'm right that at least the district court would have the discretion and maybe the duty to revisit the voluntariness of a plea if it's raised prior to entry of judgment.

[00:22:32] Speaker 04:
And the district court misdescribes the scope of the appeal waiver.

[00:22:39] Speaker 04:
Is that a valid appeal waiver?

[00:22:43] Speaker 01:
Certainly, if the district court misdescribes an appeal waiver at the time that the appeal waiver is being entered, this court has found that the appeal waiver is only effective insofar as the court correctly described it, or insofar as the court described it.

[00:23:00] Speaker 01:
And so an appeal waiver that had misdescribed the contents

[00:23:06] Speaker 04:
Well, we have a situation where the district court didn't discuss the terms of it during the plea hearing.

[00:23:14] Speaker 04:
Didn't discuss at all other than the existence of an appeal waiver.

[00:23:18] Speaker 04:
And then his sentencing misdescribes his scope.

[00:23:23] Speaker 01:
I have not seen this court address a situation where that's occurred.

[00:23:26] Speaker 01:
That's why I'm asking you the question.

[00:23:28] Speaker 04:
If I knew our answer, I wouldn't need to.

[00:23:30] Speaker 01:
But again, I would point to Lee and in the Lee case, they specifically note that there was no description of the plea waiver at the plea hearing.

[00:23:43] Speaker 01:
And I believe I could be misremembering the case, but I believe there were statements in Lee which indicated that even a misdescription at the sentencing hearing wouldn't be

[00:23:54] Speaker 01:
relevant because the applicable time for determining the knowing and voluntary and intelligentness of the plea waiver would be at the time it was entered into.

[00:24:03] Speaker 04:
Well, the problem is whether district courts can confuse defendants before a final judgment is entered on that plea, right?

[00:24:09] Speaker 04:
No judgment has been entered on that plea.

[00:24:11] Speaker 04:
No final judgment.

[00:24:12] Speaker 01:
Correct.

[00:24:13] Speaker 01:
No judgment has been entered at that point, Your Honor, until following the sentencing hearing.

[00:24:17] Speaker 04:
Right.

[00:24:18] Speaker 04:
It would seem to be worse when a district court confuses.

[00:24:21] Speaker 04:
It's either you don't describe it at all,

[00:24:24] Speaker 04:
or describe it accurately, but misdescribing it seems to be the worst of all options, correct?

[00:24:31] Speaker 04:
I mean, that's the worst of all those options.

[00:24:34] Speaker 01:
Well, Your Honor, what I would note is that... Right, that's the worst of the three options.

[00:24:37] Speaker 04:
Don't describe, accurately describe, and misdescribe?

[00:24:40] Speaker 01:
Yes, Your Honor, misdescription would certainly be worse than failing to describe or accurately describing.

[00:24:48] Speaker 01:
But in this case, we didn't just have what happened at the plea hearing.

[00:24:53] Speaker 01:
We had an allegation with the appellant in which appellant admitted that they had discussed this plea agreement and all of its relevant provisions with their counsel.

[00:25:03] Speaker 01:
This was an appellant who had gone through and gotten a master's was the court found of high intelligence.

[00:25:10] Speaker 01:
And so there's no reason to believe on this record and certainly not that

[00:25:15] Speaker 01:
Appellant has pointed out that the appellant was confused about the terms of the plea waiver.

[00:25:19] Speaker 01:
The sole argument the appellant has made on appeal is that the plea waiver should not be valid because there was ineffective assistance of counsel with respect to the application of the enhancement guideline.

[00:25:30] Speaker 01:
And as we've argued, there was no ineffective assistance of counsel and that didn't vitiate the plea waiver or the validity of it.

[00:25:39] Speaker 04:
And can you just tell me, is it standard practice for district courts just to incorporate the standard terms of supervised release by reference or is, I don't know what the common practice is.

[00:25:51] Speaker 01:
Your honor, I also similarly, as I stand here today, I'm not aware of the common practice of whether they typically detail them or reference them by reference.

[00:26:01] Speaker 04:
Have you been involved in other cases where they were not detailed like this?

[00:26:06] Speaker 01:
Not that I can,

[00:26:08] Speaker 01:
I can't specifically recall.

[00:26:09] Speaker 01:
I don't know that I was focused on that issue in any of the other cases when I was reading the transcripts of various sentencing hearings that I have.

[00:26:19] Speaker 01:
Unless the court has any further questions, we respectfully request that you affirm the sentence.

[00:26:28] Speaker 04:
Ms.

[00:26:28] Speaker 04:
Ernest, we'll give you two minutes for rebuttal.

[00:26:36] Speaker 03:
Thank you, Your Honor.

[00:26:37] Speaker 03:
You may please the court.

[00:26:38] Speaker 03:
I just wanted to address more directly some of the questions that your court presented.

[00:26:42] Speaker 04:
I may need to readjust the microphone again.

[00:26:44] Speaker 04:
I think my hearing's getting worse with it.

[00:26:46] Speaker 03:
No, it's me.

[00:26:46] Speaker 03:
I'm sorry.

[00:26:49] Speaker 03:
Judge Walker, you asked the question whether or not victim was defined differently anyplace else in the guidelines.

[00:26:54] Speaker 03:
I do not know directly, but I do know that the

[00:26:57] Speaker 03:
that the travel offense guidelines under 2G do not even use the term victim.

[00:27:01] Speaker 03:
They use the term minor, and they do provide for an enhancement for offenses like Ms.

[00:27:07] Speaker 03:
Davis that allow for an additional eight-point enhancement for offenses involving a minor under the age of 12 like Ms.

[00:27:17] Speaker 03:
Davis's.

[00:27:18] Speaker 03:
Also, Judge Millett, you asked about the appeal waiver.

[00:27:25] Speaker 03:
In U.S.

[00:27:26] Speaker 03:
versus Gullen, the Justice Ginsburg writing for the court emphasized the importance of the court because these waivers are pre-sentencing.

[00:27:37] Speaker 03:
They're anticipatory of the court, in fact, going through the appeal waiver in Rule 11 and

[00:27:48] Speaker 03:
distinguishingly, in that instance when the court did not, then two things, the court said that the plea agreement was crystal clear and here we are presenting a colorable argument for ineffective assistance of counsel because the plea misstated law which Ms.

[00:28:08] Speaker 03:
Davis relied upon in relation to the enhancements and her counsel did not correct.

[00:28:14] Speaker 03:
And in those instances,

[00:28:16] Speaker 03:
then under both Lee and under Gullen, this court has refused to enforce an appeal waiver in a plea.

[00:28:26] Speaker 03:
I see my time is about to expire.

[00:28:28] Speaker 03:
Are there any other questions?

[00:28:30] Speaker 04:
Ms.

[00:28:30] Speaker 04:
Eners, you were appointed by this court to represent Ms.

[00:28:33] Speaker 04:
Davis in this appeal, and we are grateful to you for your assistance.

[00:28:37] Speaker 03:
Thank you very much.

[00:28:39] Speaker 04:
Thank you for your time.

[00:28:45] Speaker 03:
Case is submitted.