FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30597 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00034-RFC

ROBERT THAYER STEVENS,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Argued and Submitted

July 28, 2006—Portland, Oregon

Filed September 13, 2006

Before: Alfred T. Goodwin, A. Wallace Tashima, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Goodwin;

Dissent by Judge Graber

11247
COUNSEL

Mark S. Werner, Federal Defenders of Montana, Billings,

Montana, for the defendant-appellant. 

Marcia Hurd, Assistant U.S. Attorney, Billings, Montana, for

the plaintiff-appellee. 

OPINION

GOODWIN, Circuit Judge: 

Robert Stevens appeals a 30-year sentence imposed by the

district court after Stevens plead guilty to one count of

Receipt of Child Pornography and one count of Possession of

UNITED STATES v. STEVENS 11249
Child Pornography, both in violation of 18 U.S.C.

§ 2252A(a). For the reasons set forth below, we vacate the

sentence and remand for resentencing. 

I

The indictment and the plea agreement include only the

most basic description of Stevens’s criminal activities during

2003 and 2004. On count one, Receipt of Child Pornography,

Stevens admitted he “knowingly received a visual depiction

. . . of a minor engaging in sexually explicit conduct.” On

count two, Possession of Child Pornography, Stevens admitted he “knowingly possessed computer disks . . . which [he]

knew contained visual depictions of minors engaged in sexually explicit conduct.” The pre-sentence report, however, provides the sordid details of, among other things, Stevens’s

numerous online contacts with apparently underage girls,

which he accompanied with pornographic materials and sexual solicitations. 

The district court accepted the plea agreement and sentenced Stevens on November 18, 2005. In the course of calculating the defendant’s base offense level under the advisory

sentencing guidelines, the district court imposed a seven-level

enhancement pursuant to U.S.S.G. § 2G2.2(b)(2)(D), which

penalizes “distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of the

minor to engage in prohibited sexual conduct.” Stevens

objected to this enhancement because the pornographic materials at issue were not transmitted to a minor, but rather were

sent to a law enforcement officer posing as a minor. The court

overruled the objection, and sentenced Stevens to 20 years of

imprisonment on count one and 10 years of imprisonment on

count two, to be served consecutively. The district court

entered the final judgment and sentence on November 23,

2005, and Stevens timely appealed. 

11250 UNITED STATES v. STEVENS
II

Stevens’s sole contention on appeal is that the district

court’s application of U.S.S.G. § 2G2.2(b)(2)(D), as amended

in 2004, violated the constitutional prohibition against ex post

facto laws.1

[1] A district court generally applies the version of the Sentencing Guidelines in effect on the date of a defendant’s sentencing. U.S.S.G. § 1B1.11. However, the Ex Post Facto

Clause of the U.S. Constitution requires the defendant to be

sentenced under the guidelines in effect at the time of the

offense if the guidelines have undergone substantive changes

that would disadvantage the defendant. See United States v.

Alfaro, 336 F.3d 876, 881 (9th Cir. 2003). 

At both the time of sentencing and the apparent time of the

alleged conduct, U.S.S.G. § 2G2.2(b)(2)(D) provided a sevenpoint base offense level increase for offenses involving

“[d]istribution to a minor that was intended to persuade,

induce, entice, coerce, or facilitate the travel of, the minor to

engage in prohibited sexual conduct . . . .” But, as Stevens

points out, the scope of this subsection’s application changed

in 2004 when the Sentencing Commission expanded the definition of “minor.” 

[2] At the time Stevens committed the crimes, application

note 1 to U.S.S.G. § 2G2.2 defined “minor” as “an individual

who has not attained the age of 18 years.” In 2005, at the time

the district court imposed Stevens’s sentence, the Sentencing

Commission had amended the application note, so that it

defined “minor” as “(A) an individual who had not attained

the age of 18 years; (B) an individual, whether fictitious or

1We observe, however, that Stevens’s charged offenses did not involve

“distribution.” Were the issue before us, we would question the application of U.S.S.G. § 2G2.2(b)(2)(D) to offenses involving only “receipt” and

“possession.” 

UNITED STATES v. STEVENS 11251
not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be

provided for the purposes of engaging in sexually explicit

conduct; or (C) an undercover law enforcement officer who

represented to a participant that the officer had not attained

the age of 18 years.” 

Stevens argues that this modification is a substantive

change rather than a clarification, and that therefore the district court erred by retroactively applying the amended definition. We agree. 

[3] We have repeatedly stated that a guidelines amendment

is substantive unless it “plainly serve[s] to clarify pre-existing

law, rather than to alter it.” See United States v. Bishop, 1

F.3d 910, 912 (9th Cir. 1993). Our decisions also favor the

use of ordinary rules of construction to interpret guidelines

definitions and their amendments. See United States v. LopezSolis, 447 F.3d 1201, 1205 (9th Cir. 2006). “Under ordinary

rules of construction, the free-standing terms in the amended

definition . . . have distinct definitions.” 447 F.3d at 1205

n.10. Further, statutory construction which renders some

words surplusage is to be avoided, and while “definitions may

overlap, no definition should be completely subsumed within

another.” Id. 

[4] Applying these principles, we hold that the 2004

amendment is substantive, not clarifying. The Government’s

contention that the unamended definition of “minor,” a person

“who has not attained the age of 18 years,” includes a law

enforcement officer over the age of 18 who is posing as a person under the age of 18, conflicts with the unambiguous language of the definition. We cannot adopt such an

interpretation, as it would render the 2004 amendment unnecessary and meaningless. 

[5] In addition, although the Sentencing Commission’s

characterization of the amendment is not binding, we gener11252 UNITED STATES v. STEVENS
ally afford it some weight. See, e.g., United States v. Aquino,

242 F.3d 859, 865 (9th Cir. 2001). Here, the Commission

characterized the amendment as “expanding” the definition of

“minor,” which strongly suggests that the Commission considered the amendment to be a substantive one. U.S.S.G.,

Amendment 664, Supplement to Appendix C (November 1,

2004) (“In response to the increase in the use of undercover

officers in child pornography investigations, the amendment

expands the definition of ‘minor.’ ”) 

The district court, however, reached the opposite conclusion after relying on a decision of the Eleventh Circuit which

was published before the Sentencing Commission’s 2004

amendment, United States v. Morton, 364 F.3d 1300 (11th

Cir. 2004), vacated and remanded, 543 U.S. 1136, opinion

reinstated by 144 Fed. Appx. 804 (11th Cir.), and cert.

denied, 126 S.Ct. 785 (2005). 

In Morton, the Eleventh Circuit considered whether a base

offense level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4)

involving “a pattern of activity involved the sexual abuse or

exploitation of a minor” was properly imposed where the

“minor” in question was actually a law enforcement officer

masquerading as a minor. 364 F.3d at 1301. As in the present

appeal, the defendant argued that the enhancement was

improper because the definition of “minor” provided by the

Sentencing Commission was limited to “individual[s] who

ha[ve] not attained the age of 18 years.” 

The Eleventh Circuit affirmed the sentence, holding that

law enforcement officers posing as minors qualified as “minors” for purposes of the enhancement. The court observed

that subsection (b)(4) referenced both “minor” and “victim”

in defining relevant conduct. From there, the court noted that

the definition of “victim” provided by U.S.S.G. § 2A3.2 specifically included undercover law enforcement officers. The

court then reasoned that because the terms “minor” and “vicUNITED STATES v. STEVENS 11253
tim” were used interchangeably, it could expand the definition

of “minor” to be coextensive with “victim.” 

The Eleventh Circuit published its Morton opinion before

the Sentencing Commission amended the definition of

“minor” on November 1, 2004. It therefore did not have the

benefit of the Commission’s revisions, or its explanatory

notes, upon which we rely in considering the question presented in this appeal. 

Furthermore, after the Supreme Court vacated the opinion

in the wake of Booker v. United States, 453 U.S. 220 (2005),

see 543 U.S. 1136, the Eleventh Circuit reinstated its original

opinion in a short unpublished decision in 2005. See 144 Fed.

Appx. 804. Because that decision does not acknowledge the

Sentencing Commission’s 2004 amendment, id., we cannot

tell to what extent our sister circuit may have subsequently

considered and rejected the reasoning set forth above. But to

the extent that the Eleventh Circuit may still adhere to its

opinion in Morton, we respectfully disagree.

III

[6] By using the amended definition of “minor” and applying U.S.S.G. § 2G2.2(b)(2)(D), the district court increased

Stevens’s total offense level from 34 (151-188 months) to 41

(324-405 months). Despite the district court’s disdain for Stevens and the crimes he freely admitted to committing, we cannot say on this record that the court would have imposed the

same 360-month sentence had it not erred in its base offense

level calculation.2See United States v. Crawford, 185 F.3d

2The dissent argues that the district court’s error in misinterpreting

U.S.S.G. § 2G2.2(b)(2)(D) was harmless because Stevens’ actions constituted an attempt. That theory, however, was neither raised before the district court nor argued in the parties’ principal briefs. We therefore decline

to address it. See United States v. Belden, 957 F.2d 671, 674-75 (9th Cir.

1992). 

11254 UNITED STATES v. STEVENS
1024, 1029 (9th Cir. 1999). We therefore vacate the sentence

and remand for resentencing. 

The sentence is VACATED and the cause is REMANDED.

GRABER, Circuit Judge, dissenting: 

I respectfully dissent.

Any error arising from the district court’s interpretation of

the term “minor” as used in U.S.S.G. § 2G2.2(b)(2)(D) is

harmless. 

First, it is undisputed that Defendant sent pornographic

images of children to a law enforcement officer, believing and

intending that he was distributing the materials to a minor.

That act constituted an attempt to distribute the materials to

a minor as a matter of law, even though the officer was not

a minor. See United States v. Meek, 366 F.3d 705, 717-18 (9th

Cir. 2004) (holding that an actual minor is not required to sustain an attempt conviction under 18 U.S.C. § 2422, only that

the defendant believed that he was inducing a minor). Therefore, the § 2G2.2(b)(2)(D) enhancement was appropriate. See

id. cmt. n.1 (defining “distribution” as “any act, including

possession with intent to distribute, production, advertisement, and transportation, related to the transfer of material

involving the sexual exploitation of a minor”). 

Additionally, in reaching its sentencing decision, the district court clearly was motivated by Defendant’s atrocious

related conduct and self-centered attitude. The record shows

that the sentence would have been the same under the advisory system, regardless of which Guidelines section had

applied. 

For these reasons, I would affirm the sentence.

UNITED STATES v. STEVENS 11255