United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 16, 2021 Decided July 29, 2022

No. 19-3060

UNITED STATES OF AMERICA,

APPELLEE

v.

RODNEY DAVIS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cr-00026-1)

Robin M. Earnest, appointed by the court, argued the cause 

and filed the briefs for appellant.

Michael E. McGovern, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Chrisellen R. 

Kolb and John P. Mannarino, Assistant U.S. Attorneys.

Before: MILLETT, RAO, and WALKER, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: Rodney Davis pled guilty to traveling 

across state lines with plans to sexually abuse an eight-year-old 

child. Davis’ arrest was the result of a successful sting 
2

operation in which an officer posed as the father of a fictitious 

child and communicated with Davis. At sentencing, the district 

court applied an enhancement because “the victim had not 

attained the age of twelve years.” U.S.S.G. § 2A3.1(b)(2)(A). 

On appeal, Davis argues that this enhancement cannot apply to 

fictitious victims and claims that defense counsel rendered 

constitutionally deficient performance by failing to contest the 

enhancement’s application on that ground. We reject Davis’

ineffective assistance claim as meritless since the enhancement 

can apply even when the victim is fictitious. We also reject 

Davis’ remaining sentencing challenges as the right to appeal 

them was knowingly, intelligently, and voluntarily waived.

I.

In early 2018, Davis connected online with a “father”

offering his eight-year-old daughter for illicit sexual activities. 

Unbeknownst to Davis, the father was really an undercover 

officer running a sting operation for the Metropolitan Police 

Department–FBI Child Exploitation Task Force, and the eightyear-old was fictitious. Davis continued to chat online with the 

officer, coordinating how to sexually abuse the young girl. 

When the officer revealed the child’s age, Davis was “totally 

cool” and had no qualms. Davis’ primary concern was knowing

how to initiate sex acts with the child and whether there were 

any “ground rules” of what could and could not be done to the 

eight-year-old during “play time.” At various points during 

conversations with the officer, Davis graphically described 

fantasies of forcing the child to have oral sex, made plans to 

penetrate the child vaginally and anally, and suggested that the 

officer and Davis should “play[] with her simultaneously.”

Davis also expressed excitement and hope that this “good 

arrangement” would become a recurring engagement with the 

abusive acts steadily progressing at subsequent meetings.

After a few days of communications along these lines, the 

officer invited Davis to meet up in the District of Columbia to 
3

begin the planned sex acts with the child. That same day, Davis 

accepted the invitation, left work, and drove across state lines 

to the designated meeting point. Davis was arrested shortly 

after arrival.

The federal government charged Davis with one count of 

“travel[ing] in interstate commerce ... with a motivating 

purpose of engaging in ... illicit sexual conduct with another 

person.” 18 U.S.C. § 2423(b). Davis pled guilty to that charge

and admitted to traveling across state lines “for the purpose of 

engaging in a sexual act with an eight-year-old girl.” Davis also 

waived the right to appeal any sentence imposed as part of the 

plea agreement unless the claim was based on ineffective 

assistance of counsel. Satisfied that Davis was “fully 

competent and capable of” pleading guilty and that the decision 

was “knowing and voluntary,” the court accepted Davis’ guilty 

plea.

Both in the plea agreement and later sentencing 

memoranda, the parties agreed to a four-point sentencing 

enhancement. That enhancement applies when a defendant has 

committed or attempted to commit criminal sexual abuse 

against a “victim [who] had not attained the age of twelve 

years.” U.S.S.G. § 2A3.1(b)(2)(A) (“minor victim 

enhancement”). Instead of arguing against the enhancement’s 

applicability, Davis’ counsel asked for a downward variance to 

recognize that the “victim was not real.” The district court 

disagreed that a variance was warranted because, fictitious or 

not, Davis thought an eight-year-old was involved, planned to 

sexually abuse that girl, tried to effectuate those plans, and 

hoped to perpetuate that abuse in the future. Adopting the 

recommended Guidelines range and considering all the 

relevant factors, the district court sentenced Davis to 108 

months of imprisonment and 120 months of supervised release. 

Davis appealed.
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II.

Davis first claims that defense counsel rendered 

constitutionally deficient performance by failing to contest the 

minor victim enhancement’s application at sentencing since the 

enhancement does not apply to situations involving fictitious 

victims. Because this argument lacks legal merit, defense 

counsel’s failure to raise it is not constitutionally deficient 

performance.

To show ineffective assistance of counsel, “the defendant 

must show both error by counsel and prejudice to the defense.” 

United States v. Marshall, 946 F.3d 591, 595 (D.C. Cir. 2020) 

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). 

Not only must there be error, but the “[e]rror must be so serious 

that counsel was not functioning as the ‘counsel’ guaranteed 

the defendant by the Sixth Amendment.” Id. (cleaned up). A 

defendant cannot show that an error resulted in constitutionally 

deficient performance, however, if the allegation of error is 

meritless. United States v. Islam, 932 F.3d 957, 963–64 (D.C. 

Cir. 2019). As we have repeatedly held, “[c]ounsel’s failure to 

raise a meritless ... objection [is] not deficient performance.” 

United States v. Sitzmann, 893 F.3d 811, 833 (D.C. Cir. 2018)

(per curiam). 

To determine whether Davis’ claims have merit, we turn 

to whether the minor victim enhancement applies in situations 

where the victim was fictitious. See U.S.S.G. 

§ 2A3.1(b)(2)(A). Our circuit has yet to pass on this question, 

but the three circuits to consider the issue agree that fictitious 

victims can trigger this sentencing enhancement. See United 

States v. Angwin, 560 F.3d 549 (6th Cir. 2009); United States 

v. Graham, 413 F.3d 1211 (10th Cir. 2005); United States v. 

Lebovitz, 401 F.3d 1263 (11th Cir. 2005). We join them and 

hold that a victim’s fictitious nature will not foreclose 

application of the minor victim enhancement if a defendant 

intended to sexually abuse an individual the defendant thought 
5

“had not attained the age of twelve years.” See U.S.S.G. 

§ 2A3.1(b)(2)(A). Four points support our conclusion.

First, the minor victim enhancement is part of a Guidelines 

section that applies to offenses for “Criminal Sexual Abuse” 

and “Attempt[s] to Commit Criminal Sexual Abuse.” See id.

§ 2A3.1. Attempts to commit sexual abuse focus on a 

defendant’s intent and conduct directed at accomplishing that 

abuse. An offense could therefore fit within this Guidelines

section even if the defendant was “unable to complete the crime 

because the victims were fictitious.” United States v. Butler, 92 

F.3d 960, 963 (9th Cir. 1996). In Lebovitz, the Eleventh Circuit 

explained that a defendant’s “intent and conduct” were all that 

mattered in determining whether a defendant had “attempted 

[to commit] criminal sexual abuse,” not whether the defendant 

carried out or could have carried out his intentions against a 

fictitious victim. 401 F.3d at 1268. As the minor victim 

enhancement applies to completed and attempted sexual abuse, 

we decline to limit the enhancement’s applicability merely 

because the defendant tried, but was unable, to abuse a 

fictitious victim under twelve. See id. at 1270 (that a defendant 

“did not get to have sex with the girl because she did not exist 

is of no consequence to his sentence” because the Guidelines 

section also applies to attempts) (cleaned up).

Second, including fictitious children within the minor 

victim enhancement comports with Davis’ particular crime. 

Davis pled guilty to “travel[ing] in interstate 

commerce ... with a motivating purpose of engaging 

in ... illicit sexual conduct,” which is defined to include a 

sexual act with a person under the age of eighteen. 18 U.S.C. 

§ 2423(b), (f)(1) (emphasis added). The conviction “turned 

simply on the illegal purpose for which [Davis] traveled.” 

Lebovitz, 401 F.3d at 1268 (cleaned up). Because that purpose 

is what matters under Section 2423(b), we recently explained 

that when a defendant travels across state lines to engage in sex 
6

acts with a child that turns out to be fictitious, the impossibility 

of completing the crime is not a cognizable defense. United 

States v. Lieu, 963 F.3d 122, 126–27 (D.C. Cir. 2020). We held 

that a defendant is criminally liable so long as he “inten[ded] 

to engage in illicit sexual conduct” with an individual that the 

defendant “believes ... to be” under eighteen regardless of “the 

circumstances as they may have existed in fact.” Id. at 127 

(cleaned up). Both the Section 2423(b) offense and the minor 

victim enhancement turn on a defendant’s intent to commit 

abuse and therefore may encompass fictitious minors.

Third, the language and context of the minor victim 

enhancement focus on a victim’s characteristics, not the harm 

done to the victim. The enhancement applies if “the victim had 

not attained the age of twelve years.” U.S.S.G. 

§ 2A3.1(b)(2)(A). By contrast, other enhancements in Section 

2A3.1 apply, for example, “[i]f the victim sustained permanent 

or life-threatening bodily injury,” or “[i]f the victim was 

abducted.” Id. § 2A3.1(b)(4)(A), (b)(5). While these examples 

focus on harm to the victim, such as injury or abduction, the 

minor victim enhancement refers only to the victim’s age. The 

enhancement’s applicability therefore “does not ... depend on 

the effect of the defendant’s conduct upon the victim,” but 

rather the victim’s characteristics. See Angwin, 560 F.3d at 552 

(cleaned up).

Finally, because the word “victim” is defined to include 

undercover officers, we can infer that the enhancement turns 

on a victim’s characteristics as understood by the defendant, 

not necessarily as they exist in reality. The commentary to 

Section 2A3.1 explains that “‘[v]ictim’ includes an undercover 

law enforcement officer.” U.S.S.G. § 2A3.1 cmt. 1 (cleaned 

up); see also United States v. DeCarlo, 434 F.3d 447, 459 (6th 

Cir. 2006) (explaining this definition “eliminates any doubt” 

that undercover officers can trigger the minor victim 

enhancement). When an officer poses as a would-be victim, it 
7

is not the officer’s actual age that matters for purposes of the 

enhancement. Instead, in such situations we “punish the 

defendant’s intentions” based on the perceived “characteristics 

of the intended, albeit fictional, victim.” See Angwin, 560 F.3d 

at 552. “The targets of sting operations are not relieved of 

criminal liability merely because their intended victim turned 

out to be an undercover agent and not a child.” Graham, 413 

F.3d at 1220 (cleaned up). There is also no material difference 

between an officer posing as a child or, as in Davis’ case,

pretending to prostitute a fictitious one. In both situations “the 

defendant’s intent is the same,” and the minor victim 

enhancement applies. Angwin, 560 F.3d at 552.

We are unpersuaded by Davis’ counterarguments. Davis 

first maintains that “victim” is ordinarily understood to mean a 

person who has been “acted on and usually adversely affected,” 

but that a fictitious victim cannot be acted upon or affected. 

While Davis’ definition captures one ordinary meaning of 

“victim,” the minor victim enhancement has a specialized 

context. See United States v. Bronstein, 849 F.3d 1101, 1108 

(D.C. Cir. 2017) (an “elementary rule of statutory 

interpretation” is that “[w]ords receive their plain, obvious and 

common sense meaning, unless context furnishes some ground 

to control, qualify, or enlarge it”) (cleaned up). The minor 

victim enhancement applies to attempts and also includes a 

“victim” that turned out to be an undercover officer. U.S.S.G. 

§ 2A3.1(b)(2) & cmt. 1. In context, the minor victim 

enhancement can be triggered by fictitious victims.

Davis also argues our reading is incorrect because the 

enhancement does not use the word “minor,” a term used in a 

different Guidelines provision and explicitly defined to include 

“fictitious” individuals. See id. § 2A3.1(b)(6) & cmt. 1. Had the 

Sentencing Commission wanted the minor victim enhancement 

to include fictitious individuals, Davis argues, it would have 

used the word “minor” as it did in other enhancements. Davis 
8

assumes that because “minor” and “victim” are different 

words, they must carry mutually exclusive meanings. This 

assumption, however, is unwarranted because words 

sometimes express overlapping meaning, as indicated by 

context. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 

519, 540 (2013) (explaining no “canon of 

interpretation ... forbids interpreting different words used in 

different parts of the same statute to mean roughly the same 

thing”). Here, both terms are broad enough to include fictitious 

individuals, and we know they overlap: every “victim” under 

twelve will also be a “minor” as defined by the Guidelines. See 

U.S.S.G. § 2A3.1(b)(2)(A) & cmt. 1. Because the two terms 

overlap, no inference can be drawn from the fact that the minor 

victim enhancement refers to “victim” rather than “minor.”1

We join our sister circuits in holding that application of the 

minor victim enhancement turns on the defendant’s intent and 

the characteristics of the victim as perceived by the defendant. 

The enhancement can apply “whether the minor ‘victim’ is 

real, fictitious, or an undercover officer.” Lebovitz, 401 F.3d at 

1270 (cleaned up).

Davis intended to sexually abuse an eight-year-old girl and 

therefore the minor victim enhancement applied. Defense 

counsel’s failure to raise a meritless challenge did not 

constitute deficient performance. See Sitzmann, 893 F.3d at 

1 Davis also contends that by allowing fictitious individuals to be 

“victims,” other enhancements in Section 2A3.1 would make no 

sense. It would be absurd, Davis maintains, to say that a defendant’s 

sentence could be enhanced when a “[fictitious] victim was

abducted” since “the Guidelines were not intended to punish 

abducting a fiction.” As the issue is not before us, we decline to opine 

in the abstract on whether fictitious victims can trigger Section 

2A3.1’s other enhancements.
9

833. We therefore reject Davis’ ineffective assistance of 

counsel claim.

III.

Davis also claims that the district court committed 

substantive and procedural errors during sentencing by failing 

to announce the standard conditions of Davis’ supervised 

release; inadequately factoring Davis’ gender identity into the 

sentence; and rejecting evidence of sentencing disparities 

between Davis and similarly situated defendants. We cannot 

reach those arguments, however, as Davis waived the right to 

appeal them.

Without disputing that the sentencing challenges fall 

within the plain meaning of the appeal waiver, Davis contends

that the waiver can be set aside because of defense counsel’s 

constitutionally deficient advice to sign the plea agreement. 

That advice fell below constitutional standards, Davis 

maintains, because defense counsel should have told Davis not 

to concede the minor victim enhancement’s applicability in the 

plea agreement. But as we explained above, any failure to 

oppose the enhancement’s application was not constitutionally 

deficient performance.

Alternatively, Davis claims the district court’s violation of 

Federal Rule of Criminal Procedure 11 invalidates the waiver. 

Before accepting a guilty plea, Rule 11 obligates the district 

court to “inform the defendant of, and determine that the 

defendant understands, ... the terms of any plea-agreement 

provision waiving the right to appeal.” FED. R. CRIM. P.

11(b)(1)(N). The district court failed to discuss the right to 

appeal the sentence during the plea hearing with Davis in 

violation of this rule. But a violation of Rule 11 is considered 

“harmless error if it does not affect substantial rights.” FED. R.

CRIM. P. 11(h). In United States v. Lee, for instance, we rejected 

the argument that a Rule 11 error “automatically [made] an 
10

appeal waiver not knowing, intelligent, and voluntary.” 888 

F.3d 503, 506 (D.C. Cir. 2018) (emphasis removed). We 

explained it “makes little sense” to reject an appeal waiver 

“merely because it was not mentioned at the plea hearing” 

when the defendant’s waiver was otherwise knowing, 

intelligent, and voluntary. Id. Because the Rule 11 objection 

was not raised before the district court, our review is for plain 

error. Id. at 508 n.3. To set aside the appeal waiver, Davis bears 

the burden of showing that the Rule 11 error affected 

substantial rights, which means demonstrating the waiver was 

not, in fact, knowing, intelligent, or voluntary. Id. at 508.

Davis failed to make this showing. The record 

demonstrates that the written plea waiver was clear, and Davis 

attested to understanding and agreeing with its terms. Under 

the heading “Appeal Rights,” the plea agreement explained that 

Davis was waiving “the right to appeal the sentence in this case, 

including but not limited to any term of imprisonment, fine, 

forfeiture, award of restitution, term or condition of supervised 

release, authority of the Court to set conditions of release, and 

the manner in which the sentence was determined.” Davis 

signed the agreement, averring to have “read every page” and 

“fully underst[ood] ... and agree[d] ... without reservation.”

The colloquy during the plea hearing provides further

support of Davis’ awareness and understanding. The district 

court asked whether Davis had “read [the agreement] 

carefully,” “underst[ood] it,” and had “enough time to talk to 

[defense counsel] about it.” To each question, Davis 

responded, “Yes.” The court then asked defense counsel to 

“briefly summarize the terms of the plea agreement,” during

which counsel explained, among other things, that “[t]his is a 

case in which there is an appeal waiver.” The court then asked, 

“is this what you have agreed to?” Davis again said, “Yes.” 

Finally, the court asked whether Davis “ha[d] any confusions 

or questions about this agreement,” to which Davis responded, 
11

“No.” Davis reaffirmed accepting the terms of the plea 

agreement and the appeal waiver. 

In short, nothing in the record suggests Davis 

misunderstood or lacked awareness of the appeal waiver’s 

terms. See Lee, 888 F.3d at 508 (enforcing an appeal waiver 

when “the written plea agreement was crystal clear”; the 

defendant “signed the agreement” and “orally reaffirmed to the 

Court that he had read” the agreement without additional 

questions; and “no record evidence suggest[ed] that [the 

defendant] was confused or somehow misunderstood the 

appeal-waiver provision”). Rather, the waiver was “knowing” 

because Davis was “aware of and underst[ood] the risks 

involved in [the] decision” to waive the right to appeal. See

United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).

The district court’s Rule 11 error did not affect Davis’ 

substantial rights, and therefore we enforce the waiver and 

dismiss the remaining issues.

* * *

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.