* After examining appellant’s brief and the appellat e record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 8, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LESTER WILLIAM CRAYTON, Defendant - Appellant. No. 03-3359 (D.C. No. 03-CR-20032-01-GTV)

(D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , MURPHY and McCONNELL , Circuit Judges.

Defendant Lester Crayton pled guilty to one count o f using a facility of interstate commerce to attempt to entice a minor in to engaging in sexual activity in violation of 18 U.S.C. § 2422(b). The district court sentenced Defendant to 108 months’ imprisonment. On appeal, defendant cha llenges his sentence,- 2 -

arguing that (1) the district court improperly appl ied various provisions of the U.S. Sentencing Guidelines in calculating his offen se level; and (2) the district court violated the Sixth Amendment when it enhanced Defendant’s sentence based upon court-found facts, contrary to United St ates v. Booker , 125 S. Ct. 738 (2005). For the reasons stated below, we AFFIRM De fendant’s sentence.

BACKGROUND On May 17, 2002, Defendant sent an Internet chat re quest to an undercover detective who was posing as a 14-year-old girl in an Internet chatroom. The detective responded to Defendant’s overtures. Defe ndant asked the purported minor numerous sexually oriented questions, describ ed graphic sexual activity to her, and asked her to send him a picture of herself. Defendant then sent her computer generated images as examples of nude photo s that he had received from other minors. He also offered to teach her about s ex, masturbated as the detective looked on via webcam, and offered to buy the minor a bus ticket from Illinois to Kansas so that they could engage in sexual relation s. Law enforcement officials maintained contact with D efendant, posing as the same 14-year-old female. Defendant again discu ssed providing the minor with bus transportation to Kansas in chats on May 2 9, June 6, and June 18, 2002. During these and other chats, Defendant described s exual acts he would perform- 3 -

on the minor and made plans to photograph her in va rious stages of undress. On June 24, detectives received a bus ticket addressed to the fictional minor. On June 27, 2002, police set up surveillance at the Kansas bus stop at which the minor was scheduled to arrive. Police ob served Defendant waiting there and approached him for questioning. Defendan t admitted that he bought the bus ticket and mailed it to the minor, and that his purpose was to have sexual contact with her and to take photographs of her. Defendant pled guilty to one count of using a facil ity of interstate commerce to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The district court determined that Defendant’s initial base offense level was 27, applying USSG § 2G1.1(c)(1)’s cross reference to USSG § 2G2.1 because the offense involved “seeking by no tice or advertisement ... a person less than 18 years of age to engage in sexua lly explicit conduct for the purpose of producing a visual depiction of such con duct.” The court then increased Defendant’s offense level by two levels u nder USSG § 2G2.1(b)(1)(B) because the intended victim was under 16 years old, and another two levels under USSG § 2G2.1(b)(3)(B)(i) because the offense involv ed use of a computer to persuade, induce, entice, coerce or facilitate the travel of a minor to engage in sexually explicit conduct for the purpose of produc ing sexually explicit material. Finally, the court decreased Defendant’s offense le vel three levels for acceptance1 The district court applied the 2001 version of the U.S. Sentencing

Guidelines Manual. - 4 - of responsibility pursuant to USSG § 3E1.1, bringin g his total offense level to 28. Defendant’s criminal history category was III, and his guideline range was 97 to 121 months. The court sentenced him to 108 months’ imprisonment. 1

DISCUSSION Defendant challenges three aspects of the district court’s sentencing decision. First, he argues that USSG § 2G1.1(c)(1) ’s cross reference was not applicable because his crime was an attempt. Secon d, he argues that this cross reference did not apply because he did not seek “by notice or advertisement” a minor to engage in sexually explicit conduct for th e purpose of producing a visual depiction. Third, he contends that USSG § 2G2.1(b) (1)(B)’s two-level enhancement for offenses involving a victim under 1 6 years old was improper because his intended victim turned out to be fictio nal. In addition to challenging the district court’s application of the guidelines, Defendant argues he is entitled to be resentenced under Booker , because the district court enhanced his sentenced based upon court-found facts. We exercise jurisdiction under 18 U.S.C. § 3742(a), and review the district court’s legal interpretation of the Sentencing Guid elines de novo . See United- 5 -

States v. Coldren , 359 F.3d 1253, 1255-56 (10th Cir. 2004). We reje ct each of Defendant’s arguments and AFFIRM his sentence. I. Interpretation of the sentencing guidelines A. USSG § 2G1.1(c)(1)’s cross reference may apply i n attempt cases Under the federal sentencing guidelines, attempt cr imes are generally governed by USSG § 2X1.1. See U.S. Sentencing Guidelines Manual § 2X1.1 (2001). “[W]here a defendant is convicted of an attempt crime not itself covered by a specific offense guideline, calculation of the defendant’s sentence must be pursuant to § 2X1.1.” United States v. Martinez , 342 F.3d 1203, 1205 (10th Cir. 2003) (USSG § 2X1.1 can apply even when the attemptcrime and the completed offense are included in the same statute). When an attempt crime is not expressly covered by a nother guideline, USSG § 2X1.1(a) first directs the sentencing court to calculate the defendant’s offense level pursuant to the guideline applicable to the substantive offense. More specifically, the court must apply “[t]he base level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established wi th reasonable certainty.” See U.S. Sentencing Guidelines Manual § 2X1.1(a) (2001) . “Under 2X1.1(a), the base offense level will be the same as that for the substantive offense. But the only specific offense characteristics from the guid eline for the substantive offense2 Section 2X1.1(b)(1) states: “If an attempt, decre ase by 3 levels, unless

the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense orthe circumstances demonstrate that the defendant was about to complete all such a cts but for apprehension or interruption by some similar event beyond the defen dant’s control.” In the instant case, the district court held that this offense lev el reduction did not apply, and Defendant has not contested that holding on appeal. - 6 - that apply are those that are determined to have be en specifically intended or actually occurred.” Id. at § 2X1.1 cmt. 2. USSG § 2X1.1(b) then directs t he court to reduce that offense level in certain circu mstances not applicable here. 2
The substantive offense in the instant case was ent icing a minor into engaging in sexual activity by use of a facility of interstate commerce, and the guideline section applicable to that offense is USS G § 2G1.1. That guideline contains certain cross references, including § 2G1. 1(c)(1): “If the offense involved causing, transporting, permitting, or offe ring or seeking by notice or advertisement, a person less than 18 years of age t o engage in sexually explicit conduct for the purpose of producing a visual depic tion of such conduct, apply § 2G2.1.” See U.S. Sentencing Guidelines Manual § 2G1.1(c)(1) (2 001). Defendant acknowledges that USSG § 2X1.1 directs co urts to take into account the base offense level in the substantive o ffense guideline and all applicable adjustments, but contends that cross ref erences are not “adjustments.” Accordingly, he suggests that the court should have ignored USSG § 2G1.1(c)(1)’s cross reference provision. We disa gree. Section 2X1.1(a)’s- 7 -

direction to apply the substantive base offense lev el and any applicable adjustments requires the court to apply any relevan t cross references. USSG § 1B1.5 provides express guidance about how we should interpret instructions to apply other offense guidelines. Wi th exceptions not applicable here, “[a]n instruction to use the offense level fr om another offense guideline refers to the offense level from the entire offense guideline (i.e., the base offense level, specific offense characteristics, cross refe rences, and special instructions).”
See U.S. Sentencing Guidelines Manual § 1B1.5(b)(1). Further, other courts have concluded that USSG § 2X1.1(a)’s reference to “adju stments” includes any “specific offense characteristics, cross references , or special instructions contained in the particular guideline.” See United States v. Cabrera , 288 F.3d 163, 168-69 (5th Cir. 2002) (emphasis added) (quotation omitted). We likewise hold that the district court correctly applied USSG § 2X1.1(a). That guideline directed the court to apply USSG § 2 G1.1 (including its cross reference provisions) in calculating Defendant’s of fense level. B. Defendant sought a minor victim “by notice or ad vertisement” In the alternative, Defendant argues that even if U SSG § 2X1.1 generally requires consideration of cross references located in the applicable substantive offense guideline, USSG § 2G1.1(c)(1) did not applyto the facts of this particular case. That cross reference applies when:- 8 -

[T]he offense involved causing, transporting, permi tting, or offering or seeking by notice or advertisement, a person less t han 18 years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. U.S. Sentencing Guidelines Manual § 2G1.1(c)(1) (20 01). Defendant does not contest that his offense involved seeking a minor t o engage in sexually explicit conduct for the purpose of producing a visual depic tion of such conduct. He argues only that he did not do so “by notice or adv ertisement.” In particular, he asserts that the term “notice or advertisement” inc ludes only widely disseminated communications, not Internet instant messaging. We do not need to decide the scope of the phrase “n otice or advertisement” because we can affirm this sentence enhancement on alternative grounds. We conclude that USSG § 2G1.1(c)(1) was applicable foran alternative reason not relied upon by the district court. In attempt case s, USSG § 2X1.1 directs courts to apply relevant adjustments to the applicable sub stantive base offense level based on conduct that was “specifically intended.” See U.S. Sentencing Guidelines Manual §§ 2X1.1(b)(1), 2X1.1 cmt. 2. He re, it is beyond doubt that Defendant specifically intended to “cause” a minor to engage in sexually explicit conduct for the purpose of producing a visual depic tion. See United States v. Whitesell , 314 F.3d 1251, 1255 (11th Cir. 2002) (defining th e term “causing” in a similar guideline as “producing an effect, result, or consequence” or “being responsible for an action or result”). That is eno ugh to trigger USSG- 9 -

§ 2G1.1(c)(1)’s cross reference in this case, as “the phrase ‘by notice or advertisement’ does not modify ... ‘causing.’” See United States v. Crandon , 173 F.3d 122, 129 n.5 (3d Cir. 1999) (interpreting USSG § 2G2.2(c)(1), a cross reference identical to § 2G1.1(c)(1) in all respect s relevant to this case).
C. Defendant’s Intended Victim was Less Than 16 Ye ars Old Defendant also challenges his two-level enhancementpursuant to USSG §§ 2G2.1(b)(1)(B). That enhancement provides for an increase of two offense levels when “the offense involved a victim who had ... attained the age of twelve years but not attained the age of sixteen years.” U.S. Sentencing Guidelines Manual § 2G2.1(b)(1)(B) (2001). Defendant does notdeny that he intended to victimize a 14-year-old girl, but contends only that this enhancement does not apply because the intended victim did not actually exist and because the officers with whom he communicated were not less than 16 years old. We reject Defendant’s argument. Because Defendant was convicted of an attempt, USSG § 2X1.1(a) instructed the sentencing court to apply “any adjus tments ... for any intended offense conduct that can be established with reason able certainty.” See U.S. Sentencing Guidelines Manual § 2X1.1(a) (1991) (emp hasis added); see also id. at § 2X1.1 cmt. 2 (“[T]he only specific offense charac teristics ... that apply are those that are determined to have been specifically inten dedor actually occurred.”)3 This court granted Defendant’s request to file supp lemental briefs

after the Supreme Court decided Booker

. - 10 - (emphasis added). As the guidelines make clear, th e focus of our analysis is whether Defendant intended to victimize a person un der 16 years of age. It is not relevant that he was ultimately unable to do so due to circumstances outside his control. In light of the undisputed evidence that Defendant’s intent was to engage in sexual activity with a 14-year-old (not an under cover officer), we hold that the district court properly applied USSG § 2G2.1(b)(1)( B)’s two-level enhancement.
II. Booker claim Defendant argues, for the first time on direct appe al, 3 that he is entitled to resentencing in light of Booker . Bookerapplies “to all cases on direct review.” Booker , 125 S. Ct. at 769. Nevertheless, because Defenda nt did not raise this claim before the district court, we review only forplain error. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “P lain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights.” Id. (quotation omitted). If Defendant meets these thr ee requirements, then, “[u]nder the fourth prong of plain-error revi ew, [this] court may exercise its discretion to notice forfeited error only if it ser iously affects the fairness, integrity, or public reputation of judicial proceed ings.” Id. at 736.

In Booker , the Court “reaffirm[ed that] [a]ny fact (other th an a prior conviction) which is necessary to support a s entence exceeding- 11 -

the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendantor proved to a jury beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. As a result, the Court held that mandatory application o f the Guidelines violates the Sixth Amendment when judge-found facts , other than those of prior convictions, are employed to enhance a sentence. Gonzalez-Huerta , 403 F.3d at 731. “To remedy this constitutional infirmity created by applying judge-found facts to mandatory sentencing guidelines, the [Booker ] Court severed the provision of the Sentencing Ref orm Act making application of the Guidelines mandatory,” 18 U.S.C. § 3553(b)(1). United States v. Dazey , 403 F.3d 1147, 1174 (10th Cir. 2005). “[T]here are two distinct types of error that a cou rt sentencing prior to Bookercould make.” Gonzalez-Huerta , 403 F.3d at 731. First, the sentencing court could violate the Sixth Amendment “by relying upon judge-found facts, other than those of prior convictions, to enhance adefendant’s sentence mandatorily.” Id. Second, even though the district court did not vi olate the Sixth Amendment, “a sentencing court could err by applyin g the Guidelines in a mandatory fashion, as opposed to a discretionary fa shion, even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fac t of a prior conviction.” Id. at 731-32. In this case, Defendant asserts the district court violated the Sixth Amendment when the court used judge-found facts to enhance Defendant’s- 12 -

sentence. We disagree. There was no Sixth Amendme nt error here because Defendant, when he pled guilty, admitted the facts necessary for the district court to apply the guideline enhancements the court used in calculating Defendant’s sentence. Specifically, Defendant admitted to usin g a computer to approach and engage a person Defendant thought was a fourteen ye ar-old-girl in sexually explicit conversations for over one month; requeste d the girl send him sexually explicit photographs and sent her examples of sexua lly explicit photographs he asserted other minors had sent him; attempted to pe rsuade the girl to have sex with him; “used his web cam to knowingly expose the minor to sexually explicit images of the defendant;” and sent the girl a bus t icket so that she could travel to meet Defendant and have sex with him. When authori ties arrested Defendant as he was waiting for the girl’s bus to arrive, Defend ant admitted that he intended to have sex with, and take sexually explicit photograp hs of, the girl. There was, then, no constitutional Bookererror in this case. The district court did, however, commit non-constit utional plain error when the court treated the guidelines as mandatory rathe r than only advisory. See United States v. Williams , 403 F.3d 1188, 1199-1200 (10th Cir. 2005); Gonzalez-Huerta , 403 F.3d at 732. We need not decide if this erro r affected Crayton’s substantial rights because Crayton, in any event, cannot meet the plain-error test’s fourth prong. See United States v. Sierra-Castillo , 405 F.3d- 13 -

932, 941 (10th Cir. 2005); Gonzalez-Huerta , 403 F.3d at 736. Crayton has failed to meet his burden of showing that this plain error“seriously affects the fairness, integrity, or public reputation of judicial proceed ings” such that we should exercise our discretion to notice and correct the e rror. Gonzalez-Huerta , 403 F.3d
at 736-37. The non-constitutional error in this case – that the District Court applied the Guidelines mand atorily – is only error insofar as it runs afoul of the Court’s remedyfor the unconstitutional implications of the Guidelines. T his disconnect between the constitutional violation and the remedy makes Booker unique. While there is no doubt that the remedy cu res the constitutional violations going forward, usually th e cure for a constitutional violation directly relates to the co nstitutional violation. The fortuity of the Court’s choice to excise [the s tatutory provision that makes the guidelines advisory] instead of a re medy more directly related to the underlying constitutional problem, i s key to our determination that the District Court’s erroneous –though not constitutionally erroneous – mandatory application of the Guidelines is not particularly egregious or a miscarriage of j ustice. Id. at 738; see also Sierra-Castillo , 405 F.3d at 941. Further, Crayton points to nothing in the record th at would suggest that, had the district court known it had discretion to g o outside the applicable guideline range, the district court would have done so in Crayton’s case to impose a shorter sentence. See Gonzalez-Huerta , 403 F.3d at 738-39. There is, then, “no reason to suppose that the Guideline sent ence is anything but fair and reasonable” in this case. United States v. Trujill o-Terrazas , 405 F.3d 814, 820- 14 -

(10th Cir. 2005). In fact, because the district co urt imposed a sentence within the applicable guideline range, Crayton “received a sen tence similar to the sentence most similarly historied defendants in the United S tates would have received for the crime for which he was convicted.” Gonzalez-Hu erta , 403 F.3d at 743 (Ebel, J., concurring). Moreover, even in applying the guidelines in a mand atory way, the district court still retained discretion to impose a sentenc e on Crayton anywhere in that applicable guideline range. See United States v. Lawrence , 405 F.3d 888, 908 (10th Cir. 2005). The district court chose to exer cise that discretion by imposing a 108-month sentence, which fell in the middle of t he applicable range of 97-121 months. In doing so, the district court rejected D efendant’s request for a sentence at the lowest end of the range. There is, then, no “reason to think that the district judge would have imposed a less severe sentence in the exercise of his post-Bookerdiscretion.” United States v. Riccardi , 405 F.3d 852, 876 (10th Cir. 2005); see also United States v. Ambort , 405 F.3d 1109, 1118, 1120-21 (10th Cir. 2005) (declining to notice and correct constitution al plain-error under Booker where district court, in applying guidelines in man datory manner, imposed sentence at top of applicable guideline range); Law rence , 405 F.3d at 906, 908 (declining to notice and correct constitutional pla in error under Bookerwhere- 15 -

district court, in applying guidelines in mandatorymanner, imposed sentence above lowest end of the applicable guideline range)

. For these reasons, then, “[c]ore notions of justice would not be offended if this court declined to notice a sentencing error th at had no effect on [Crayton’s]
sentence.” Lawrence , 405 F.3d at 908; see also Gonzalez-Huerta , 403 F.3d at 739. We, therefore, decline to notice and correct the non-constitutional Booker error evident in this case.
CONCLUSION For these reasons, we hold that the district court calculated Defendant’s offense level correctly, and we therefore AFFIRM hi s sentence.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge