RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0362p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DENNIS LAY,

 Defendant-Appellant.

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No. 07-4062

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 07-00048—John R. Adams, District Judge.

Argued: January 16, 2009

Decided and Filed: October 13, 2009 

Before: MERRITT, ROGERS, and WHITE, Circuit Judges.

_________________

COUNSEL

ARGUED: Donna Maria Grill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Toledo, Ohio, for Appellant. Michael A. Sullivan, ASSISTANT UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Donna Maria Grill, OFFICE OF

THE FEDERAL PUBLIC DEFENDER, Toledo, Ohio, Dennis G. Terez, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Michael A. Sullivan,

ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

ROGERS, J., delivered the opinion of the court. WHITE, J. (pp. 21-22), delivered

a separate concurring opinion. MERRITT, J. (pp. 23-32), delivered a separate opinion

concurring in part and dissenting in part.

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OPINION

_________________

ROGERS, Circuit Judge. Dennis Lay appeals the sentence he received following his

guilty plea to one count of traveling with intent to engage in illicit sexual conduct. Despite

Lay’s arguments to the contrary, the sentencing court properly applied an enhancement for

1
No. 07-4062 United States v. Lay Page 2

unduly influencing a minor after finding that Lay failed to rebut the applicable presumption

that he had unduly influenced the much younger victim. The district court also permissibly

applied an enhancement for use of a computer to entice the minor, even though none of

Lay’s discussions with the minor about sexual activity occurred via computer. Lay did not

qualify for a reduction for acceptance of responsibility because the district court found that

Lay did not testify truthfully in all relevant respects, despite professing to accept

responsibility. Furthermore, Lay’s sentence is substantively reasonable, though Lay will

face significant restraints on his freedom when he is on supervised release. We thus affirm

Lay’s sentence.

I. Background

Dennis Lay, a decorated U.S. Air Force veteran in his mid-50’s, was working as a

truck driver in California. In June of 2006, he made acquaintance online with the minor

victim in this case, whom we will refer to as “M.V.” M.V. appears to have initiated the

online contact. Lay and M.V. exchanged messages online for a period of about two months.

By sometime in July, they had begun communicating by telephone as well, though not

openly. Lay made several calls to M.V.’s home phone that M.V.’s mother answered; when

she answered, Lay hung up. Lay eventually sent a package to M.V. with a mobile phone,

clothing, and over $200.

In early July, M.V.’s mother advised Ohio police that M.V. claimed to be in love

with Lay and wanted to travel to California to live with him. An investigating officer,

having discovered the mobile phone Lay had sent, used that phone to call Lay. Lay initially

claimed that he had no knowledge that M.V. was only fifteen. However, the officer pointed

out that M.V. had emailed pictures to Lay, and that Lay had sent clothing appropriate for a

fifteen-year-old to M.V. Lay tried to change the subject by arguing that the police should

be investigating M.V.’s mother for abusing M.V. The officer told Lay that M.V. was not

bruised, as Lay claimed that M.V. had told Lay. The officer asked Lay for his address, birth

date, and Social Security number; Lay hung up.

Despite being informed by the officer of M.V.’s age, Lay continued communicating

with M.V. M.V. claimed that all conversations after late July were by phone, not by

computer. In November, Lay mailed an envelope to a friend of M.V.’s with instructions for
No. 07-4062 United States v. Lay Page 3

the friend to deliver the contents to M.V. Inside was another envelope containing two

letters, four pictures (one of Lay), a plastic ring sizer, a music CD, a half-dollar coin, and

$200.

One of the letters discussed Lay’s relationship with M.V. In it, Lay claimed that

there was “NOTHING that will ever keep us apart,” said that “I REALLY love you,” and

said that he wanted to “hug and kiss [you], and never stop.” In the second letter, Lay advised

M.V. not to say anything out loud on the phone about Lay’s visiting M.V. in Ohio out of fear

of being overheard. Lay also said that he would call and tell M.V. he couldn’t come to Ohio,

so as to deceive potential eavesdroppers. But Lay wrote that he had made arrangements to

fly to Ohio to see M.V. at the end of 2006. Lay informed M.V. that he had made hotel

reservations in a nearby Ohio town for a room with a king-size bed and room service. He

advised M.V. not to mention Lay’s plans to anyone because if Lay were discovered, his

“goose will be cooked.”

Before his trip, Lay continued to talk to M.V. by phone. Many of their conversations

were sexually explicit. In addition, they discussed a plan in which Lay would leave a

message on M.V.’s answering machine directed to M.V.’s mother. The message would

advise the mother that Lay was the father of one of M.V.’s friends, that he was inviting M.V.

to spend the holiday weekend with his family, and that he would pick up M.V. on Friday,

December 29th, for a visit to last through January 1st.

Lay flew from California to Ohio on schedule for his liaison with M.V. At the

baggage claim in the Ohio airport, FBI agents arrested him pursuant to a warrant obtained

after Lay boarded his flight. Without telling M.V., M.V.’s mother had reported the contents

of the last package to the police, and had given consent for police to record the last week of

phone calls between Lay and M.V.

II. Judicial Proceedings

In January 2007, a federal grand jury indicted Lay with one count of knowingly

traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in

violation of 18 U.S.C. § 2423(b). That statute criminalizes traveling in interstate commerce
No. 07-4062 United States v. Lay Page 4

with the intent to engage in sexual activity with a minor under the age of 16 who is at least

four years younger than the defendant. See 18 U.S.C. §§ 2423(f), 2243(a). 

In March 2007, Lay pled guilty to the charge. During the hearing for the entry of

plea, the prosecution stated the facts of the case that the prosecution believed it was prepared

to prove. The prosecution’s statement included an assertion that Lay had left the answering

machine message that was intended to get M.V.’s mother to let M.V. go off with Lay. Lay

acknowledged engaging in the conduct described in the prosecution’s statement.

In July 2007, the district court held a sentencing hearing. In addition to

recommending a three-level reduction for acceptance of responsibility, the prosecution

recommended three Sentencing Guidelines enhancements. These were a two-level

enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a minor to engage in

prohibited sexual conduct, a two-level enhancement under U.S.S.G. § 2G1.3(b)(3)(B) for

use of a computer to entice a person to engage in prohibited sexual conduct with a minor,

and a two-level enhancement under U.S.S.G. § 3B1.4 for using a minor in the commission

of the crime. Lay testified at the sentencing hearing in order to contest these enhancements.

A. Sentencing Testimony

Lay testified that M.V. had initiated contact over the Internet. Lay claimed that at

first he responded to long, unsolicited emails from M.V. with brief replies, but that their

relationship gradually evolved into a friendship. He also testified that about two months into

their relationship, they stopped using the Internet to communicate, instead only talking by

phone. Lay gave more details about the relationship, and he began testifying about M.V.’s

claims of “family problems.”

At that point, the district court interrupted and warned Lay’s counsel that “you may

very well be, because of some of this testimony, jeopardizing whatever three-level

acceptance of responsibility . . . . So if you’ve got some testimony regarding objections,

specific objections, I will hear it, but I’m not going [to] entertain this long litany that

arguably could be interpreted as a lack of acceptance of responsibility and offer an excuse

for the conduct, so be forewarned.”
No. 07-4062 United States v. Lay Page 5

Lay resumed testifying. Among other things, he testified that it was M.V.’s idea that

Lay travel to Ohio for a visit. He testified that M.V. “was upset” when Lay indicated that

he would be unable to come because of work. He also testified that none of the

conversations relating to the trip to Ohio occurred on a computer.

Lay testified that M.V. had mentioned being in counseling for running away from

home four times. He also testified that M.V. had claimed to be abused and told “a story of

woes,” including a claim that M.V.’s mother and sister exchanged Christmas gifts, but did

not give M.V. any gifts for Christmas.

Lay concluded his direct examination by stating that “You know, I admit what I did

coming back to Ohio was terribly wrong and I am the adult here and I accept full

responsibility for that. My mistake was when I found out [M.V.’s] real age, I didn’t stop it.

I allowed myself to become closer to [M.V.] and I didn’t stop it. That was my mistake and

that was what I pled guilty to. And I take full responsibility for that.”

Under cross-examination, Lay claimed to be “just learning how to use things” on his

computer, claimed that he was “not very experienced with computers,” and claimed that he

did not “know how to email pictures.” But he admitted that he knew how to scan pictures

and that he had booked his Ohio trip flights and hotel online.

Lay further claimed, in response to the prosecutor’s questions, that he had no idea

that M.V. was fifteen for the first “couple of months” of their relationship. Lay claimed that

during this initial period, while having near-daily phone conversations with M.V., Lay never

thought that M.V. sounded like a child, and M.V. never mentioned school or family

problems to Lay. Lay also claimed that he never asked what M.V. did for a living, despite

assuming that M.V. was twenty-five.

Lay admitted that, in response to perceived abuse, he made disparaging comments

about M.V.’s mother and sister. He admitted saying, regarding the mother, “That woman

needs help. She needs to be looked at. She needs to—she’s got a problem.”

Lay also admitted that he sometimes quizzed M.V. on schoolwork, and gave advice

on things like styling M.V.’s hair. He admitted sending M.V. gifts and money.
No. 07-4062 United States v. Lay Page 6

Lay denied having left the deceptive answering machine message for M.V.’s mother,

although he admitted that he had discussed the subject with M.V. He said “I don’t recall

ever talking to the voice mail.” The prosecution played a tape recording in court, apparently

of Lay leaving the deceptive message, and then asked Lay if he remembered leaving the

message. Lay said “I don’t recall, but that is—what is that referring to?” Lay later stated

that M.V. “asked me leave a message” but that Lay told M.V. “that that was against my

better judgment, but we were talking about things that, you know—I can’t make out exactly

what that is. If that’s me.” On further questioning, “I don’t know if there was voice mail

that they had. If it’s been recorded, I don’t know what it’s from.”

On being asked about the conversation in which he and M.V. had specifically

discussed leaving the message, Lay claimed that “I didn’t know it was being recorded, but

I don’t know that there was even voice mail there.” He claimed to have told M.V. “Let’s call

this all off,” and that M.V. “got very upset with me” and was “asking me, ‘You need to say

this. You need to say that,’ but I didn’t know this was being recorded.” Lay also claimed,

“I didn’t know that they had an answering machine. It never came on.”

In response to repeated playing of tapes of conversations between Lay and M.V.

regarding the message, Lay continued to claim that “I wasn’t aware that I was leaving a

message on the answering machine.” “Those are the things [M.V.] asked me to say, yes.

We were practicing it over and over. Like I said, I wasn’t aware I was being recorded.”

When asked, “That was you saying it, right?” Lay responded, “Yeah, I would say

that was—you know, that was my voice. Like I said, I’m—I wasn’t aware I was being

recorded when we were saying this.” Lay continued to deny leaving the message.

When asked how he expected to spend a weekend with M.V. when he had not left

the message, Lay claimed that M.V. had told him, “I can get away for the weekend.” Lay

further said, “I didn’t know that [M.V.] was going to use that or recorded that to be used that

way. I was just informed that it’s okay if I come and spend the weekend.”

In response to further questions, Lay admitted that when he traveled to Ohio, he

knew that M.V. was fifteen. “And you had every intention [of] engaging in sexual activity
No. 07-4062 United States v. Lay Page 7

when you arrived in Ohio, didn’t you?” “I accepted responsibility for that, yes.” “Is that a

yes?” “Yes.”

The prosecutor had Lay repeat his claim that Lay only traveled to Ohio at M.V.’s

insistence. The prosecutor then asked if Lay had told M.V., “I just can’t wait to hold you

for real. It will be the best day of my life when that day comes.” Lay responded, “That’s

quite possible, yes.”

The prosecution did not present any witnesses. The court heard argument on the

various sentencing enhancements proposed by the prosecution.

B. Undue Influence

With respect to the enhancement for unduly influencing a minor, Lay argued that it

was M.V.’s idea for Lay to come to Ohio and that M.V. lied to and manipulated Lay. Lay

thus suggested that the sentencing enhancement for undue influence would be inappropriate

because M.V. supposedly had influenced Lay just as much as Lay had influenced M.V.

The court rejected this argument and applied the enhancement, discounting M.V.’s

statements because M.V. was “vulnerable” and “troubled,” and had been “lured into this

relationship by [an] individual who is 38 years older” than M.V.

The court anticipated the acceptance of responsibility issue. In its discussion of

undue influence, the court stated, “I think the record will speak for itself, but particularly

with the defendant’s demeanor, his answers to the question[s], arguably this is a situation

where the defendant is attempting to shift all of the responsibility and the blame for this

conduct to the victim. . . . [T]hat is not acceptance of responsibility.”

Returning to the undue influence enhancement, the court stated “Your argument is

pretty much . . . this 15-year-old lured or caused this [53]-year-old man . . . lured him into

this conduct and we both know that isn’t the case, number one; number two, this individual

. . . was obviously troubled and the defendant in this case continued to lure [M.V.] with gifts,

with money, with packages, even after he knew and had been confronted with the fact” that

M.V. was fifteen.
No. 07-4062 United States v. Lay Page 8

The court further stated

I think it is clear that the defendant otherwise unduly

influenced the minor to engage in sexual conduct. There

has not been a showing that would rebut the [Sentencing

Guidelines’] presumption [of undue influence] based upon

the substantial difference in age between the participant and

the minor.

I would indicate that the court believes that clearly the

defendant through the use of his packages, his money, his

cell phone as well as his conversations, admitted

conversations with this young, troubled 15-year-old, clearly

contrary to what has been argued here, the manipulator was

the defendant. The manipulator was not the victim, and I

am convinced that this is the case and it is clear the

defendant, as we will address later, has not at least in my

mind under the guidelines acknowledged responsibility for

this conduct, in fact, contrary thereto.

He has spent the most part of the morning on the witness

stand trying to blame the victim that all of this conduct, that

his trip to . . . Ohio was . . . precipitated by the victim, not

by himself.

Let’s be clear, there’s no dispute that Mr. Lay arrived here

with a hotel room that he had booked with a king size bed in

it so that he and this 15-year-old could sleep together.

There’s no doubt what the intent was when he came to town.

C. Use of a Computer to Entice

Lay argued that the enhancement for using a computer to entice a minor was

inappropriate because the evidence showed that none of the communication about sexual

conduct had occurred via computer. After pointing to the testimony and statements that

indicated such, he noted that the prosecution had not produced evidence to the contrary and

suggested that if such evidence existed, “they would have attached the emails and they

would have had them in your hands.”

The court overruled the objection, stating “it’s undisputed that the defendant met the

victim in this case through the use of a computer.” “The portion of the advisory guidelines

that the court would reference would be the use of a computer or interactive computer

service to entice, encourage, offer, to engage in prohibited sexual conduct with a minor.”
No. 07-4062 United States v. Lay Page 9

“[C]ounsel has called to my attention testimony of his client as a basis for the court not

imposing the enhancement, and I will note for the record that . . . unfortunately, I find the

defendant’s testimony with regard to his use of a computer to be not credible and

disingenuous at best.” The court noted that Lay had admitted having a scanner, booking

reservations for airline tickets and a hotel stay online, and knowing how to use chatrooms.

“So . . . I do not believe much of his testimony when he attempts to minimize his

sophistication that comes to the use of technology.”

The court then held, while noting that “perhaps it’s a matter for further review,” that

merely using a computer to contact, communicate with, and entice a fifteen-year-old to begin

a relationship was sufficient for the enhancement to apply.

D. Use of a Minor

Lay contested the enhancement for use of a minor in committing the offense. The

prosecution sought this enhancement because Lay had sent his last package of gifts for M.V.

to a minor friend of M.V.’s. The minor friend was to give the package to M.V., thus

allowing M.V. not to receive the package at home, where it would be subject to detection by

M.V.’s mother. Lay argued that the evidence did not show that Lay knew that the friend was

a minor. The prosecution argued that circumstantial evidence supported Lay’s knowledge

of the friend’s status as a minor. The district court ruled for Lay and did not apply the

enhancement; the prosecution does not appeal this ruling.

E. Lay’s Statement

Lay exercised his right to be heard before the court pronounced sentence and made

the following statement:

Well, Your Honor, like I stated when I was on the witness

stand, I am the adult here in this situation and I accept full

responsibility for my actions and I know it was terribly

wrong. I’ve abused drugs in the past or I was under the

influence of drugs while this was transpiring and now that

I’ve been sober for the last nine months, I see with a clear

head just how terribly wrong this really was. That’s why I

also requested the drug treatment program.
No. 07-4062 United States v. Lay Page 10

But I accept full responsibility for my intentions here and I

know how bad it looks in the eyes of the public and I would

like to apologize to the victim’s mother. I know it’s caused

problems for her, and I think it’s time we move on and we

both get our lives back together again.

And I will seek counseling or treatment for my situation and

I don’t think a lengthy prison sentence would actually

benefit me as much as counseling would, as well as the drug

treatment, but like I said, I accept responsibility for

everything that I’ve done here. I am dreadfully sorry for it.

F. Acceptance of Responsibility

In calculating an advisory Guidelines range, the district court noted that Lay’s base

offense level was 24. The two two-level enhancements resulted in an adjusted offense level

of 28. The district court then denied Lay any reduction for acceptance of responsibility.

After reading relevant portions of the Guidelines, the court stated:

In this particular matter, the court has had the opportunity to

see and observe the defendant’s demeanor and to consider

his testimony as it relates to numerous instances of relevant

conduct.

. . . [O]ne important part is the defendant’s testimony when

confronted with the tape-recorded statements that are clear.

It’s clear to the court from listening to the tapes that these

are—in fact, clearly a layman listening to the voice would

be well aware that the recorded conversations are those of

the defendant with the minor in this case, and it’s clear that

even confronted with that very compelling evidence the

defendant clearly attempted to deny and/or avoid admitting

what is readily apparent to this court that indeed the

telephone conversations that were played were calls made

by this defendant.

. . . [T]he defendant’s testimony in this case was nothing

more than an attempt to divert and to cast blame and

[aspersions] on the defendant’s victim in this matter.

The court noted that M.V. “is clearly, without any doubt . . . troubled.” It noted the

lack of “a male figure” in M.V.’s life, and said that Lay “preyed upon” M.V.’s

“vulnerabilities, did so with the use of transferring gifts, money, and other conduct through

his numerous telephone calls, his own admissions, speaking for considerable periods of time
No. 07-4062 United States v. Lay Page 11

on almost a daily basis with this victim” in order “to engage in sexual conduct with this 15-

year-old.”

The court further stated:

. . . It’s also clear that this defendant in careful reading of his

testimony is attempting to—in my notes, it’s just

overwhelming to me that this defendant clearly attempts to

argue that, in fact, he was the one who had been lured into

this conduct by the 15-year-old. . . . He was doing things

against his better judgment, him being the 53-year-old, but

yet this 15-year-old in his mind was the one in essence

persuading him to engage in this conduct.

And I am without any doubt, any doubt in my mind, that this

defendant does not accept responsibility for his conduct.

While he has pled, while he has verbalized what he

verbalized, what he hopes will be sufficient information for

the court to grant him the acceptance of responsibility, his

testimony reveals otherwise. And his testimony reveals an

individual who believes that this 15-year-old is at fault for

this conduct and this 15-year-old is not, and that is the

tragedy here that his—he does not understand and does

not—is not willing to admit he is the adult and he is the

predator and that he is the one who’s preyed upon this

individual.

And for those reasons, I would say for any reviewing court,

that not only the testimony, but the demeanor and the

attitude of the defendant fully supports the court, in my

mind, not granting, nor will I grant acceptance of

responsibility under these circumstances.

G. Sentence

The district court noted that the adjusted offense level of 28, coupled with Lay’s

Criminal History Category of I, produced a Guidelines range of 78-97 months. The court

then sentenced Lay to imprisonment for 84 months, followed by 20 years of supervised

release. Among the conditions of supervised release were that Lay will be required to

“submit any proposed changes to residence and/or employment to the probation officer at

least 20 days prior to obtaining the intended changes,” Lay will be “prohibited from

accessing any online computer service at any location, including employment or education,

without prior written approval of the U.S. probation officer or the court,” that Lay will be
No. 07-4062 United States v. Lay Page 12

required to consent to periodic unannounced searches of and installation of monitoring

software or hardware on any computer systems he may use, and that Lay will be required to

submit his “place of business” to warrantless search by the probation office “based upon

. . . evidence of the violation of a condition of release.”

Lay appeals his sentence, arguing that it is both procedurally and substantively

unreasonable.

III. Analysis

Because the district court’s factual findings are not clearly erroneous, see United

States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005), and because the legal conclusions

based on these findings were correct, see United States v. King, 516 F.3d 425, 427 (6th Cir.

2008), Lay’s sentence is not unreasonable.

A. Undue Influence

The district court properly applied the Sentencing Guidelines enhancement for undue

influence of a minor. The court found that Lay had not made a factual showing sufficient

to overcome the applicable rebuttable presumption that the age difference between Lay and

M.V. indicated undue influence. This finding is not clearly erroneous.

Lay’s testimony, if believed, is consistent with a situation in which a willing minor

sought out sexual activity with an adult. But not only did the district court find Lay not

credible, it found facts that are consistent with a manipulative adult’s building a relationship

with a minor for the purpose of eventual sexual activity. These facts, along with the

applicable presumption of undue influence created by Lay’s greater age, support the

application of the undue influence enhancement.

The Sentencing Guidelines provision states “If (A) the offense involved the knowing

misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate

the travel of, a minor to engage in prohibited sexual conduct; or (B) a participant otherwise

unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels.”
No. 07-4062 United States v. Lay Page 13

1

Subsection (A) of this provision conceivably could have applied to Lay’s leaving of the

deceptive answering machine message for M.V.’s mother—a knowing misrepresentation of Lay’s identity

to facilitate the travel of M.V. to engage in prohibited sexual conduct. But the prosecution sought the

enhancement only under subsection (B).

U.S.S.G. § 2G1.3(b)(2).1 The Guidelines Commentary states that to determine whether

the undue influence provision in subsection (B) applies,

the court should closely consider the facts of the case to

determine whether a participant’s influence over the

minor compromised the voluntariness of the minor’s

behavior.

In a case in which a participant is at least 10 years older

than the minor, there shall be a rebuttable presumption,

for purposes of subsection (b)(2)(B), that such participant

unduly influenced the minor to engage in prohibited

sexual conduct. In such a case, some degree of undue

influence can be presumed because of the substantial

difference in age between the participant and the minor.

Id. § 2G1.3 cmt. n.3(B). The Commentary is “authoritative.” Stinson v. United States,

508 U.S. 36, 38 (1993).

Although evidence suggested that M.V. proposed a meeting with Lay, that M.V.

lied to Lay about being abused, and that M.V. initiated the original communication with

Lay, these facts do not prove that M.V. was not unduly influenced. And these facts are

consistent with a victim who has been influenced by a sexual predator. The district court

did not find that Lay had never discussed sex with M.V. before M.V. suggested that Lay

visit, nor did it find facts that supported an adult’s being taken in by a fifteen-year-old’s

tale of woe.

The district court may not have given certain facts as much weight as Lay would

have preferred, but it did not “ignore” them. The district court’s factual findings—that

Lay, in pursuit of a sexual liaison, continued to ply a vulnerable and troubled fifteenyear-old with gifts and attention—are not clearly erroneous. An appellate court may not

reverse a finding of fact “simply because [it] would have decided the case differently,”

but must affirm unless “left with the definite and firm conviction that a mistake has been

committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quotations omitted). The
No. 07-4062 United States v. Lay Page 14

district court had before it a record which may have supported an alternate outcome, but

that does not justify reversal under a clearly erroneous standard.

Nor did the district court err by ignoring the victim in its inquiry. The “victimfocused inquiry” we required in United States v. Chriswell makes this enhancement

inapplicable if no victim exists to be influenced. 401 F.3d 459, 469 (6th Cir. 2005).

Some evidence that the minor was in fact influenced thus must appear in the record—as

it does here with the district court’s finding that M.V.’s particular troubled

characteristics gave Lay a vulnerable victim to influence with his manipulative tactics.

But a district court does not err merely because, as part of “closely consider[ing] the

facts of the case,” it considers the extent to which the defendant engaged in manipulative

behavior as bearing on the question of whether the defendant has rebutted the

presumption that he unduly influenced the minor.

Cases in which district courts found that a defendant did not unduly influence a

victim do not support a different outcome in this case. For instance, the Eighth Circuit

upheld as not clearly erroneous a district court’s factual finding that the defendant “did

nothing that compromised [the minor’s] volition, however misguided it may have been.”

United States v. Myers, 481 F.3d 1107, 1112 (8th Cir. 2007). Where evidence could be

construed both for and against an argument that the minor was not influenced, the

appellate court deferred to the district court’s factual findings on the question, as we do

in this case.

Furthermore, “involvement of a minor” is not an impermissibly “double counted”

element, as Lay argues. Lay pled guilty to traveling with the intent to engage in

impermissible sexual conduct with a minor. The district court applied an enhancement

for unduly influencing the minor to engage in impermissible sexual conduct. The travelwith-intent conduct set Lay’s base offense level, and the undue-influence conduct

supported an enhancement. Improper double counting occurs when “precisely the same

aspect” of the defendant’s conduct is “factor[ed] into his sentence in two separate ways.”

United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999). No such double counting

is involved here. A criminal can travel to engage in impermissible sexual conduct with
No. 07-4062 United States v. Lay Page 15

a minor without unduly influencing a minor, so applying an enhancement for undue

influence when the criminal does unduly influence a minor is not double counting.

United States v. Wise, 278 F. App’x 552, 563 (6th Cir. 2008).

The district court properly applied the undue influence enhancement.

B. Use of a Computer

The district court’s application of the use of a computer enhancement was not

reversible error because Lay began his pursuit of an inappropriate sexual relationship

while using a computer to communicate with M.V. This enhancement may be applied

even if the defendant did not send specific sexual requests by computer.

Although Lay did not explicitly propose sexual relations in a computer message,

Lay communicated via computer with M.V. for one to two months with the apparent

intention of having prohibited sexual relations with M.V. Enticement does not require

crude specification of intent. When a predator uses a computer to make friends with a

potential victim, the enhancement may apply because the predator is using a computer

to entice the minor to engage in prohibited sexual conduct, even if the minor does not

yet realize the predator’s intent.

To allow a predator to use a computer to develop relationships with minor

victims, so long as the ultimate consummation is first proposed through offline

communication, would not serve the purpose of the enhancement. The computerprovided threat of anonymous one-to-many communications by a sexual predator exists

whether the predator uses the Internet to make explicit proposals of sexual activity or

merely to strike up friendships with potential victims. Either course allows the predator

to contact more potential victims, and to make initial contacts more insidiously, than

would be possible offline. Application of the enhancement in this case was therefore

warranted.

This is not a case in which a defendant and a victim, after an innocent encounter

via computer, developed a relationship offline that subsequently evolved into an

inappropriate sexual relationship. Lay admitted to communicating with M.V. by
No. 07-4062 United States v. Lay Page 16

2

This fact alone calls into question the plausibility of Lay’s account. Lay would have the district

court believe that after a month or two of sending terse responses to emails about mundane events, Lay

innocently decided to mail a package of money, adolescent clothes, and a telephone to a person he still

believed to be twenty-five, and not until after some significant number of furtive calls did Lay discover

that M.V. was fifteen and attempting to communicate without parental knowledge. “Innocent” online

friendships do evolve into offline contacts, but these facts hardly suggest such a case. The district court’s

decision to draw reasonable inferences about Lay’s intentions rather than crediting his testimony is thus

not clearly erroneous.

computer for about two months, and the district court did not find Lay’s attempts to

minimize the significance of his computer communications credible. Moreover, the

computer communication ceased only at the time Lay began plying M.V. with gifts,

including the phone that replaced the computer as a means of communication.2 That is

enough, on these facts, to uphold application of the enhancement for using a computer

to entice the minor.

The only possible problem with the application of the enhancement on these facts

is an inconsequential citation error. The text of the provision provides for a two-level

increase if “the offense involved the use of a computer or an interactive computer service

to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in

prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage

in prohibited sexual conduct with the minor . . . .” U.S.S.G. § 2G1.3(b)(3).

However, the presentence report appears to have erred by citing subsection (B)

of this provision, and the district court and parties echoed that error. Subsection (B),

which applies when the defendant entices “a person” to engage in illegal sexual conduct

with the minor, does not apply without three people—the defendant, the minor, and the

third person who is being enticed. The district court and parties made arguments as if

proceeding under subsection (A), which applies when the defendant uses a computer to

entice the minor directly. Nevertheless, they all cited subsection (B), which by its terms

does not appear to apply to Lay’s situation. But Lay does not argue that this citation

error undermines his sentence, and the error appears to be of no consequence. There is
No. 07-4062 United States v. Lay Page 17

3

Because Lay did not object to the presentence report’s citation of the wrong subsection before

sentencing, he forfeited his right to object below on that ground. See Fed. R. Crim. P. 32(f)(1) (requiring

the filing of written objections within 14 days of receipt of the PSR). Moreover, Lay did not make any

argument about this error in this court, nor did anyone discuss this error at oral argument. If there was

error, it was not plain error as contemplated by Fed. R. Crim. P. 52(b). Plain error review is only available

to correct an error that “affect[s] substantial rights” so as to “seriously affect the fairness, integrity or

public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993) (quotation

omitted). The unobjected-to citation of the wrong subsection of an applicable Guidelines enhancement,

when all parties argued as if the proper subsection had been cited, is not such an error because it makes

no difference to Lay’s substantial rights. Had Lay objected to the PSR on this ground, the probation officer

could have merely revised the PSR to cite the proper subsection, see Fed. R. Crim. P. 32(f)(3) (permitting

revision “as appropriate” after receiving objections), and the parties would have made the same arguments

that they made under the wrong subsection.

thus no reason not to uphold the application of the enhancement as if the parties and

court had cited subsection (A).3

Because Lay used a computer to persuade, induce, or entice M.V. to engage in

prohibited sexual conduct, the district court appropriately applied the use of a computer

enhancement.

C. Acceptance of Responsibility

The district court’s denial of the reduction for acceptance of responsibility was

not erroneous, notwithstanding Lay’s guilty plea and statement purporting to accept

responsibility. The court explicitly found Lay to be not credible or honest while

testifying on certain relevant matters. “I do not believe much of his testimony when he

attempts to minimize his sophistication that comes to the use of technology.”

“[D]efendant clearly attempted to deny and/or avoid admitting what is readily apparent

to this court that indeed the telephone conversations that were played were calls made

by this defendant.” As the district court had the opportunity to observe Lay’s demeanor

while he testified, its findings are entitled to deference. And “[d]enial of the reduction

for acceptance of responsibility is proper if the court believes the defendant testified

untruthfully.” United States v. Bonds, 48 F.3d 184, 189 (6th Cir. 1995); see also

U.S.S.G. § 3E1.1(a) cmt. n.1(a).

The record does not reflect that the district court’s findings are clearly erroneous.

It is true that a sympathetic reading of Lay’s testimony suggests that, rather than

frivolously contesting the facts surrounding the answering machine message, perhaps he
No. 07-4062 United States v. Lay Page 18

was genuinely confused about the source of the recordings that the prosecution played.

But this most sympathetic reading of his testimony, without the advantage of observing

his demeanor, is not required in light of the district court’s findings. See U.S.S.G.

§ 3E1.1(a) cmt. n.5. And the fact that Lay, at his entry of plea hearing, admitted leaving

the message undermines his attempts at the sentencing hearing to deny leaving the

message.

Lay argues that the district court misinterpreted his testimony as an attempt to

“blame the victim,” but that Lay actually admitted his guilt, including all the elements

of the charged offense. But admitting the elements of criminal conduct while

“constantly attempt[ing] to mischaracterize that conduct, ‘spin’ it, so to speak, and

minimize [the defendant’s] responsibility” will support a finding that a defendant has not

accepted responsibility. United States v. Wolfe, 71 F.3d 611, 616 (6th Cir. 1995); see

also U.S.S.G. § 3E1.1(a) cmt. n.3.

Lay argues that upholding his sentence will put defendants in an impossible

position of being unable to contest improper sentencing enhancements without

jeopardizing credit for acceptance of responsibility. But this argument ignores the courtfound facts of this case. The district court did not find Lay to be fully forthright or to

have admitted all relevant conduct. Had the court made such findings, and also denied

credit for acceptance of responsibility, a quite different case might be presented. There

is no reason to assume that in some other case a defendant who had not unduly

influenced a minor would not be able to present evidence rebutting the presumption of

undue influence without jeopardizing credit for acceptance of responsibility. See, e.g.,

Myers, 481 F.3d at 1112 & n.7 (defendant successfully contested the undue influence

enhancement while receiving credit for acceptance of responsibility). 

Certainly, the position of a defendant who must testify in order to contest an

improper enhancement requires the treading of a fine line. But the solution to that

dilemma is to testify honestly, without falsely denying relevant conduct. Regardless of

what the members of this panel might have done had they been required to pronounce
No. 07-4062 United States v. Lay Page 19

sentence on Lay, they cannot overturn the district court’s factual findings unless clearly

erroneous, which these findings are not.

D. Reasonableness of the Sentence

Lay’s arguments that his sentence is unreasonable are unavailing. To the extent

that Lay argues that his sentence is unreasonable because it is procedurally tainted, his

arguments are without merit as discussed above. To the extent Lay argues that his

sentence is substantively unreasonable for other reasons, he fails to show that the district

court abused its discretion by misweighing § 3553(a) factors or by imposing supervised

release conditions unrelated to public safety.

A sentence may only be overturned if the district court abused its discretion.

Gall v. United States, 128 S. Ct. 586, 597 (2007). A within-Guidelines sentence enjoys

a rebuttable presumption of reasonableness. United States v. Vonner, 516 F.3d 382, 389-

90 (6th Cir. 2008) (en banc). Lay offers little to rebut that presumption.

Lay’s arguments that the district court abused its discretion amount to a litany of

complaints about the way that the district court weighed the factors listed in 18 U.S.C.

§ 3553(a). It is true that a sentence may be substantively unreasonable if the district

court failed to consider pertinent § 3553(a) factors or gave “an unreasonable amount of

weight to any pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir.

2006) (quotation omitted). But the court did not ignore the factors Lay complains did

not receive enough emphasis; it merely weighed them against the other listed factors and

sentenced Lay accordingly. The district court did not abuse its discretion.

Lay also argues that the conditions of his supervised release are too onerous and

will make it difficult for him to obtain employment. But “where a condition of

supervised release is reasonably related to the dual goals of probation, the rehabilitation

of the defendant and the protection of the public, it must be upheld.” United States v.

Bortels, 962 F.2d 558, 560 (6th Cir. 1992) (citation omitted). The conditions of which

Lay complains are designed to protect the public from potential recidivism. The public

has an obvious interest in monitoring the Internet use, employment, living arrangements,
No. 07-4062 United States v. Lay Page 20

and social affairs of those who have been convicted of sexual offenses against minors,

to prevent opportunities to commit such crimes again. While this interest would not

justify every conceivable restraint on the liberty of a convicted felon, Lay offers no

reason in this case to conclude that the district court improperly balanced the legitimate

interests of society against his liberty interests. Nor has Lay presented any reason that

his age should make a difference to this analysis. Lay does not show that the district

court abused its discretion in imposing the supervised release component of his sentence.

IV. Conclusion

For the foregoing reasons, we affirm Lay’s sentence.
No. 07-4062 United States v. Lay Page 21

______________________

CONCURRENCE

______________________

WHITE, Circuit Judge, concurring. I concur and write separately to make some

additional observations regarding the undue-influence enhancement. Judge Merritt’s

straightforward analysis directly and fairly presents the issue – on this record, where all

indications are that the minor victim was anxious to meet with and have a sexual

relationship with Lay, and that the minor victim initiated communications with Lay to

that end, was the district court’s finding of undue influence within the meaning of

§ 2G1.3(b)(2)(B) erroneous as a matter of law because it was not based on a victimfocused inquiry? I agree with Judge Rogers that while the district court reasonably could

have concluded otherwise, the record is adequate to support the conclusion that the

presumption of undue influence based on the age discrepancy was not rebutted.

The district court properly began its analysis with a recognition of the rebuttable

presumption of undue influence that applies where the defendant is at least ten years

older than the victim. This presumption can of course be overcome, and the court is

directed to “closely consider the facts to determine whether a participant’s influence over

the victim compromised the voluntariness of the victim’s behavior.” Accepting that the

focus must be on whether the victim’s voluntariness was compromised, I conclude that

a district court’s consideration of “voluntariness” can go beyond the victim’s perception

of his or her conduct. That is, the victim may believe that his or her participation is

entirely voluntary, and may send that message to the defendant, but if the court

concludes that there were specific identifiable factors or needs operating in the victim’s

decision-making process and that the defendant exploited, preyed upon, or even simply

catered to those factors or needs, leading to those factors or needs playing a significant

role in the victim’s “voluntary” participation, the court may properly conclude that the

rebuttable presumption has not been rebutted. Here, there was evidence to support that

the victim was lonely, felt mistreated by family members, and was searching for

emotional and material recognition. Accepting that the victim welcomed and
No. 07-4062 United States v. Lay Page 22

encouraged Lay’s interest, the court could nevertheless reasonably conclude that the

victim’s voluntariness was compromised by Lay’s providing the victim with the

emotional support and material possessions the victim sought.
No. 07-4062 United States v. Lay Page 23

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

MERRITT, Circuit Judge, concurring in part and dissenting in part. The district

court improperly added four points to Dennis Lay’s offense level at sentencing — two

for unduly influencing a minor and two for using a computer. The application of these

enhancements contravenes the clear, plain language of the Guidelines and should be

reversed. These two enhancements added approximately three years to Lay’s sentence.

Additionally, the twenty-year term of supervised release, which will not expire until Lay

is 82 (if he lives that long), is substantively unreasonable and should also be reversed.

I, therefore, respectfully dissent.

Section 2G1.3(b)(2)(B) of the Sentencing Guidelines provides for a two-point

sentence enhancement if the defendant “unduly influenced a minor to engage in

prohibited sexual conduct.” The application notes state that “[i]n determining whether

subsection (b)(2)(B) applies, the court should closely consider the facts of the case to

determine whether a participant’s influence over the minor compromised the

voluntariness of the minor’s behavior.” There is no indication here that the voluntariness

of the minor’s behavior was compromised, and much uncontroverted evidence that the

victim was a voluntary participant in, and partial instigator of, the planned sexual

conduct. This voluntariness in no way vitiates Lay’s conviction or his culpability for his

actions. But it does preclude the application of this sentencing enhancement.

The district court also added a two-point enhancement under § 2G1.3(b)(3)(B).

The majority concedes that this enhancement was clearly inapplicable, but dismisses this

as a mere citation error, concluding that the district court really meant to apply

§ 2G1.3(b)(3)(A). Even if we were permitted to swap in the enhancement that the

district court “should” have used, it would not change the result. Section 2G1.3(b)(3)(A)

provides for a two-point sentence enhancement “[i]f the offense involved the use of a

computer . . . [to] persuade, induce, entice, coerce, or facilitate the travel of, the minor

to engage in prohibited sexual conduct.” The majority admits that there is no evidence
No. 07-4062 United States v. Lay Page 24

that Lay ever discussed sexual activity over the computer with the victim. Indeed, all

evidence indicates that their relationship did not become romantic or sexual in nature

until after they had stopped communicating over the Internet. Since the enhancement

requires that the computer be used to “persuade, induce, entice, coerce, or facilitate the

travel of, the minor to engage in prohibited sexual conduct,” that should be the end of

the inquiry.

Finally, after serving seven years in prison, Lay will have to spend the next

twenty years of his life asking the probation office for permission any time he wants to

use a computer, apply for a job, or move to a new residence, among many other severe

restrictions. The combination of the onerousness and length of Lay’s term of supervised

release renders it substantively unreasonable.

I. Unduly Influencing a Minor

I agree with the majority that the application of the two-point enhancement for

unduly influencing a minor did not constitute impermissible double counting. But I

cannot agree that the facts of this case permit its application here. The authoritative

commentary makes explicit what is clearly implied by the use of the term “unduly

influenced” in the text: “the court should closely consider the facts of the case to

determine whether a participant’s influence over the minor compromised the

voluntariness of the minor’s behavior.” It is true that a rebuttable presumption of undue

influence applies here, since Lay was 38 years older than his victim. But when

uncontroverted evidence indicates that the voluntariness of the minor’s behavior was

never compromised, that presumption has been rebutted. 

The district court erred by focusing exclusively on Lay’s conduct and completely

overlooking the dispositive question: was the voluntariness of the victim’s behavior

compromised by the defendant’s actions? The district court justified the enhancement

by stating, “I would indicate that the court believes that clearly the defendant through

the use of his packages, his money, his cell phone as well as his conversations, admitted

conversations with this young, troubled 15-year-old, clearly contrary to what has been

argued here, the manipulator was the defendant.” These observations bear no logical
No. 07-4062 United States v. Lay Page 25

relationship to the question of the victim’s voluntariness. It may be possible in some

cases to use the defendant’s behavior to draw inferences about the voluntariness of the

victim’s behavior. But there has been no attempt to do so here. The district court simply

listed Lay’s actions, ignored the victim’s behavior entirely, and concluded without

analysis that the enhancement must apply. 

The majority’s approach is slightly different, but no less erroneous. Unlike the

district court, it acknowledges that “evidence suggested that [the victim] proposed a

meeting with Lay, that [he] lied to Lay about being abused, and that [he] initiated the

original communication with Lay.” But the majority concludes that “these facts are

consistent with a victim who has been influenced by a sexual predator.” This sets up an

unappealing Catch-22: If the facts show that the victim’s participation was involuntary,

the enhancement for undue influence will apply. And if the facts show that the victim’s

participation was voluntary, well, that just proves that he must have been “influenced by

a sexual predator.” 

The majority states that the district court’s factual finding that Lay sent the victim

gifts is not clearly erroneous. That is true, but beside the point — the question is

whether it was legal error to conclude from these facts that the victim was unduly

influenced, and this question requires us to examine the voluntariness of the victim’s

behavior, which the majority fails to do. Instead, it characterizes this as a purely factual

question that we may reverse only if we find clear error. But the applicability of the

enhancement is a mixed question of fact and law. I do not dispute the district court’s

findings about either Lay’s or the victim’s behavior; but I disagree that those facts can

serve as the basis for the legal conclusion that Lay unduly influenced the victim within

the meaning of §2G1.3(b)(2)(B).

Besides contravening the text and authoritative application notes, the majority

opinion stands in stark contrast to all reported decisions from the Courts of Appeals

interpreting the undue-influence enhancements, including binding precedent from this

Court. In United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005), we interpreted

U.S.S.G. § 2A3.2(b)(2)(B), which uses the same language and has the same application
No. 07-4062 United States v. Lay Page 26

notes as § 2G1.3(b)(2)(B). We considered the Oxford English Dictionary definitions of

the words “unduly” (“without due cause or justification; without proper regard to right

and wrong; unrightfully, improperly”) and “influence” (“to exert influence upon, to

affect by influence; to affect the mind or action of”), in conjunction with the application

notes, and concluded that “the court must engage in a victim-focused inquiry when

applying this subsection in every case.” Chriswell, 401 F.3d at 469. We also noted that

this approach was consistent with the background commentary to § 2A3.2, which “was

added to the Guidelines in 2000 to capture those cases where ‘coercion, enticement, or

other forms of undue influence by the defendant . . . compromised the voluntariness of

the victim’s behavior and, accordingly, increased the defendant’s culpability for the

crime.’” Id. at 463-64 (quoting U.S. SENTENCING GUIDELINES MANUAL § 2A3.2 cmt.

background (2000)). Although the Chriswell court differed in certain respects from

previous decisions by the Seventh and Eleventh Circuits, the three courts were

unanimous on the only point that is relevant here: when there is a real child victim (as

opposed to a case involving a police officer posing as a child), the applicability of the

undue-influence enhancement must be determined by focusing on the victim’s behavior

and asking whether its voluntariness was compromised by the defendant’s actions. See

United States v. Mitchell, 353 F.3d 552, 558 (7th Cir. 2003) (surveying various legal

definitions of undue influence and concluding that each “requires an actual target of

influence and contemplates a situation where the ‘influencer’ has succeeded in altering

the behavior of the target”); United States v. Root, 296 F.3d 1222, 1234 (11th Cir. 2002)

(noting that “the voluntariness of a real child victim’s actions would be dispositive if an

undercover agent were not involved”); id. at 1236 (Kennedy, J., concurring in part and

dissenting in part) (noting that the enhancement “requires examination of the effect on

the victim”).

More recently, in United States v. Myers, 481 F.3d 1107 (8th Cir. 2007), the

Eighth Circuit affirmed the district court’s conclusion that the § 2G1.3(b)(2)(B)

enhancement should not apply, despite the presumption of undue influence that existed

because of the discrepancy in age between defendant and victim. The court noted that

Myers had put on evidence showing that the victim had “possessed some inclination to
No. 07-4062 United States v. Lay Page 27

leave home before she even encountered Myers and had contemplated running away

with” another man. Id. at 1112. Furthermore, the victim “characterized the plan for her

to run away and marry Myers as ‘both of [their] ideas,’ agreed that Myers ‘didn’t have

to do anything to convince [her] to go to Kentucky,’ and stated that she anticipated that

she would at some point have sex with Myers.” Id. The court affirmed the district

court’s conclusion that “despite the difference in their ages, Myers did nothing that

compromised [the victim’s] volition, however misguided it may have been.” Id. 

The Myers approach focuses on the victim’s volition, and whether it was

overborne, and accepts the possibility that a victim could have been a willing participant,

even if that willingness seems misguided or grotesque to the court. This is the proper

approach to take in these cases, and the one that the majority should have followed here.

Indeed, it is not clear how a presumption of undue influence could be rebutted, except

by showing that the victim’s actions were consistently voluntary. The argument in favor

of focusing on the defendant’s behavior, presumably, is that when the defendant takes

certain actions — for example, plying the victim with gifts or flattery, emphasizing his

greater knowledge and life experience — we should infer that the victim’s actions in

response were not truly voluntary, even if they appear to be to outside observers, or even

to the victim himself. But, at a minimum, a sentencing judge should be explicit that he

is considering the defendant’s actions for the purpose of drawing inferences about the

voluntariness of the victim’s behavior. Simply citing the defendant’s actions

disapprovingly does not meet the requirements of § 2G1.3(b)(2)(B) and its application

notes.

Had we followed the proper approach, the outcome here would be clear. All

evidence suggests that the victim initiated the relationship with Lay, called Lay

frequently, deceived Lay about his home life and living situation in order to win his

sympathy, was the first to suggest that Lay visit him, and planned an alibi that would let

him get away to spend the weekend with Lay (with an expectation that they would have

sexual relations then). The victim professed to be in love with Lay and wanted to go to

California to live with him. When informed of the police investigation, the victim stated
No. 07-4062 United States v. Lay Page 28

a desire not to get Lay in trouble, thought the police should apologize to Lay, and

mentioned the possibility of suicide, apparently at the prospect of Lay’s arrest. This

evidence indicates that the victim’s volition was not compromised, and suffices to rebut

the presumption that Lay unduly influenced the victim. 

Traveling interstate for the purpose of engaging in sexual activity with a minor

is a crime, whether the minor’s involvement is consensual or not. Properly applied,

though, the enhancement for undue influence sensibly distinguishes cases involving

consensual conduct from those more culpable cases in which the defendant’s actions

compromise the voluntariness of the minor’s behavior. The majority eviscerates this

distinction by allowing district courts to apply the enhancement to cases like this one

where all the evidence suggests that the victim’s participation in the relationship was

entirely voluntary.

II. Use of a Computer

The district court increased Lay’s sentence under U.S.S.G. § 2G1.3(b)(3)(B),

which provides a two-point enhancement “[i]f the offense involved the use of a computer

or an interactive computer service to . . . entice, encourage, offer, or solicit a person to

engage in prohibited sexual conduct with the minor.” As the majority concedes, this

enhancement is clearly inapplicable, since its plain language requires the defendant to

have used a computer to interact with “a person” other than the minor. The majority

waives this away, however, as “an inconsequential citation error.” But this is not a

simple matter of the parties quoting the language of one provision while inadvertently

citing to another. The Presentence Report, the district court, and the prosecution (at

sentencing and on appeal) refer repeatedly to the language of § 2G1.3(b)(3)(B),

including the direct references to “a person” other than the minor. It was a mistake, but

not a typographical or inconsequential one; it was a substantive error that stems from the

underlying problem in this case — the district court’s disregard for the text of the

enhancements it was applying.

Assuming arguendo, though, that the majority is correct — that the parties’

consistent and repeated quotation of the language of § 2G1.3(b)(3)(B) was in fact just
No. 07-4062 United States v. Lay Page 29

1

The date range that Lay gave — beginning some time in July and ending between mid August

and early September — permits but in no way requires the majority’s conclusion that Lay and the victim

corresponded online for “two months.” As I explain below, the length of the correspondence is irrelevant

to the question at hand. But the majority seems to believe otherwise, so I note in passing that its

conclusions about the duration are only ambiguously supported by the record.

an uncanny series of slips of the pen, rendering us free to substitute § 2G1.3(b)(3)(A) in

its place — the enhancement is still inapplicable. Section 2G1.3(b)(3)(A) provides for

a two-point enhancement “[i]f the offense involved the use of a computer or an

interactive computer service to . . . persuade, induce, entice, coerce, or facilitate the

travel of, the minor to engage in prohibited sexual conduct.” Ignoring the final clause

of this provision, the district court held that “the mere fact that the defendant used a

computer to contact this 15-year-old and to communicate with [the victim] and to entice

[the victim] to begin this relationship was sufficient for the offense characteristics to be

applicable.” The Sentencing Commission is certainly free to create an enhancement that

applies whenever a defendant uses a computer to start a relationship that subsequently

becomes sexual. But it has not done so. The enhancement only applies when the

defendant uses a computer to entice (etc.) a minor to engage in prohibited sexual

conduct. The record clearly indicates that this did not happen here.

Lay testified that his first contact with the victim occurred some time in July

2006, when he received an unsolicited invitation from the victim to chat online. The

victim’s online profile said that the victim was 25 years old. There is nothing in the

record about the content of this chat session. Soon thereafter, the victim sent Lay a

series of emails, discussing quotidian events like “a picnic at a park, [and] things that . . .

the victim was doing over the weekend.” Lay would usually send short responses, “two

or three lines” long, saying, “‘Wow, that was nice. It must have been exciting,’” or

something similar. After communicating “off an on” like this until “mid to late August

or early September,”1

 their correspondence shifted entirely to the telephone, at the

victim’s request. At the outset, their phone conversations were of the same nature as

their email correspondence — that is, they talked “primarily” about the victim’s interest

in soccer, plus “every day things” like the weather and the minor tribulations of Lay’s

job as a truck driver. Lay testified that over “a period of several months,” their
No. 07-4062 United States v. Lay Page 30

relationship gradually became “more of an intimate friendship,” and at some point

during this time Lay realized that the victim was younger than he had first believed.

When asked directly whether any of the conversations that dealt with his visit to Ohio

was “ever carried out by way of a computer,” Lay answered “No, sir, never.” None of

these statements was called into question on cross-examination. Nor does the victim’s

statement suggest anything different, except to the extent that he said that their

correspondence was conducted entirely over the phone beginning in late July, rather than

August or September, as Lay recalled. Nowhere in the record is there any evidence that

their online correspondence was at all sexual in nature. In other words, nothing in the

record supports the conclusion that Lay used a computer to “persuade, induce, entice,

coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct.”

The majority offers three arguments to avoid what should be the obvious

conclusion. First, it conjectures that Lay conducted the online correspondence with “the

apparent intention of having prohibited sexual relations” with the minor. Where this

factual allegation comes from is entirely unclear. But even if it is true, Lay’s subjective

intentions while corresponding with the victim are irrelevant to the question of whether

Lay enticed him to engage in sexual conduct. Second, the majority says that disallowing

the enhancement here would contradict the purpose of the enhancement. If we imagine

that the purpose of the enhancement is to lengthen the sentence of any offender who

meets his victim online, then that might be true. But the enhancement’s purpose, which

is best articulated by the text and application notes, is to lengthen the sentence of an

offender who uses a computer to entice a minor to engage in prohibited sexual conduct,

since a computer facilitates anonymous, one-to-many communication in a way that, say,

a phone conversation does not. Finally, the majority distinguishes this from “a case in

which a defendant and a victim, after an innocent encounter via computer, developed

a relationship offline that evolved into an inappropriate sexual relationship.” But the

only distinction between that hypothetical case (in which the majority would apparently

find the enhancement inapplicable) and this one is the number of innocent online

correspondences that occurred before the relationship developed offline into an

inappropriate sexual one. Again, this distinction bears no relation to the language of the
No. 07-4062 United States v. Lay Page 31

enhancement, and its rationale is completely unexplained. The applicability of the

enhancement should turn on how the computer was used, not on the number of

correspondences.

The first paragraph of the majority opinion states that “none of Lay’s discussions

with the minor about sexual activity occurred via computer.” This fact should have been

dispositive, and the enhancement for using a computer to entice a minor to engage in

prohibited sexual conduct should not apply.

III. Substantive Reasonableness

Lay’s twenty-year term of supervised release will start to run when his sevenyear prison sentence ends, at which time he will be 62 years old. In addition to the

standard conditions of supervised release, the district court imposed a litany of special

conditions, including several related to Lay’s new status as a sex offender. Among other

things, Lay must not: have any contact with any person under the age of 18, unless his

or her parent or legal guardian is present or Lay notifies the parent or guardian about his

conviction; associate or correspond with anyone who “has a sexual interest [in] or

attraction to minors”; reside within direct view of schools, parks, playgrounds, youth

centers, or other facilities used primarily by minors; or use any online computer service

— including at work or in an educational capacity — without prior written approval.

Lay also must: get prior approval for all residential and employment decisions; install

monitoring software on his computers; provide the probation office with his passwords

and Internet history; submit to periodic unannounced searches of his computer; and

submit to warrantless searches of his person, residence, vehicle, and place of business.

These conditions will undoubtedly make it very difficult for Lay to find a job or

reintegrate himself into society. Perhaps it could be said that the conditions themselves,

though extremely onerous, are “reasonably related to the dual goals of probation, the

rehabilitation of the defendant and the protection of the public.” United States v. Ritter,

118 F.3d 502, 504 (6th Cir.1997). But for twenty years? A condition of supervised

release must “involve[] no greater deprivation of liberty than is reasonably necessary for

the purposes” of § 3553. 18 U.S.C. § 3553(d). I cannot see how it is reasonably
No. 07-4062 United States v. Lay Page 32

necessary to require a man in his sixties, seventies, and eighties, with no prior criminal

history, to sacrifice so many of his liberties in the name of protecting the public. I would

conclude that the twenty-year sentence of supervised release, with its long list of libertyinfringing conditions, is substantively unreasonable.

IV. Conclusion

Lay’s actions were clearly criminal, as he acknowledged. But in our rush to

condemn the wrongness of his actions, we should still strive to apply the law

disinterestedly, looking closely at the facts to determine whether they fit within the

language of the Sentencing Guidelines. Because all relevant evidence points to the

conclusion that the voluntariness of the victim’s actions in this case was never

compromised, and that Lay never used a computer to entice the victim to engage in

prohibited sexual conduct, the two sentencing enhancements at issue should be reversed.

And because Lay’s twenty-year term of supervised release is greater than necessary to

comply with the goals of sentencing, his sentence should be vacated as substantively

unreasonable. For these reasons, I respectfully dissent.