In United States v. Roman-Portalatin, 2012 U.S. App. LEXIS 8393 (1st Cir. 2012), the First Circuit upheld a sentence for persuading a minor to engage in unlawful sexual conduct and possession of child pornography despite the defendant's argument that an enhancement was erroneously applied.
The enhancement of USSG § 2G2.1(b)(6)(B)(ii) is applied for the use of a computer to "solicit participation with a minor in sexually explicit conduct for the purpose of producing sexually explicit material or for the purpose of transmitting such material live." It doesn't apply to direct communications with the victim, however, but instead only when the communications are with a third party. § 2G2.1(b)(6)(B)(i) is applied when the act is directly with the victim. Either way, it's a two-level enhancement.
The issue arose when the enhancement was suggested in the presentence report and a range of 168-210 months was established. Despite the defendant's plea agreement recommending 135 months, the sentencing judge imposed a 145-month sentence. On appeal, the defendant argued that the erroneous enhancement (which he had not objected to at sentencing) prejudicially affected him as the judge was calculating the sentence.
The First Circuit (in an opinion by Justice Souter, sitting by designation) held that even if the error had been preserved, it did not appear to affect the district court's decision as the defendant's plea admitted to the same level enhancement under § 2G2.1(b)(6)(B)(i). Also, a claim of ineffective assistance failed because at most, the attorney's act "would have resulted in substituting '(i)' for '(ii)'.
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