In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2054

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIK D. ZAHURSKY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:06 CR 109—Rudy Lozano, Judge.

ARGUED OCTOBER 17, 2011—DECIDED FEBRUARY 2, 2012

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This is Erik Zahursky’s second

appeal to this court. In 2007, a jury convicted Zahursky

of attempting to coerce or entice a minor to engage

in sexual activity in violation of 18 U.S.C. § 2422(b)—an

offense for which Zahursky received a 262-month

prison term. Zahursky appealed, challenging both his

conviction and a sentencing enhancement based on

§ 2G1.3(b)(2)(B) of the sentencing guidelines. We affirmed
2 No. 11-2054

the conviction, but we vacated Zahursky’s sentence

and remanded, ruling that § 2G1.3(b)(2)(B) was inapplicable. On remand, the district court, relying in part

on § 2G1.3(d) of the guidelines, sentenced Zahursky to

210 months in prison. Zahursky appeals again, arguing

that our earlier ruling precludes not only the section (b)

enhancement, but also the section (d) enhancement.

Although § 2G1.3(d) may not apply, we find that

Zahursky has forfeited this argument and therefore

affirm his sentence.

I

In 2006, Zahursky, using the pseudonym “gracepace101,”

began a chat room correspondence with “Sad_Shelly200”

(Shelly), a fictitious 14-year-old girl created by the U.S.

Secret Service. (The record does not reveal why that

agency had become involved, but no one has made anything of it.) Shortly thereafter, Zahursky began corresponding with “holly1989cutie” (Holly), who represented

herself to be 14 years old, but whose actual identity is

unknown. We need not describe these conversations

in depth here apart from noting that they were graphic;

some of the details can be found in our previous

opinion, United States v. Zahursky, 580 F.3d 515, 517-20

(7th Cir. 2009). It suffices to say that Zahursky expressed

a strong desire to have sex simultaneously with Shelly

and Holly, and he prompted them to contact each other.

They never did, and his correspondence with Holly

ended. Undeterred, Zahursky made plans to have a

threesome with the fictitious Shelly and her (also fictitious) friend Lindsey.
No. 11-2054 3

While en route to meet Shelly and Lindsey, Zahursky

was arrested. As we noted, he was eventually convicted

of attempting to persuade, induce, entice or coerce a

minor to engage in sexual activity in violation of 18 U.S.C.

§ 2422(b) and was sentenced to 262 months of imprisonment. This sentence was based, in part, on two provisions of the sentencing guidelines: first, an enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for “unduly

influenc[ing] a minor,” based on his correspondence

with Holly; and second, a pseudo-count enhancement

under § 2G1.3(d), which was also based on his correspondence with Holly. (A “pseudo-count” appears to be the

term used by the Sentencing Commission staff to

describe an uncharged offense. See Thomas W. Hutchison

et al., Federal Sentencing Law and Practice § 3D1.2 (2012

ed.).)

In 2009, Zahursky appealed his sentence, asserting

that the undue influence enhancement should not have

been applied when his advisory guidelines offense

level was calculated. We found merit in this argument,

writing that “§ 2G1.3(b)(2)(B) cannot apply where the

defendant and the minor have not engaged in

prohibited sexual conduct.” Zahursky, 580 F.3d at 526.

Finding that the record failed to contain any evidence

that Zahursky and Holly had ever met—or even that

Holly was a minor—we remanded for resentencing. Id.

at 527-28. On remand, Zahursky received a lower sentence of 210 months. The recalculated guidelines sentence no longer included the subsection (b)(2)(B) enhancement, but it still contained the section (d) enhancement.

Zahursky now appeals the use of § 2G1.3(d) to enhance

his advisory guideline offense score.
4 No. 11-2054

II

Where a conviction under 18 U.S.C. § 2422(b) involves

multiple minors, U.S.S.G. § 2G1.3(d) directs a sentencing court to treat the relevant conduct with each

person as if it were a separate count. Unlike the statute,

however, the guideline (that is, § 2G1.3(d)) does not

contain an “attempt” provision. This means that the

government must prove that each relevant person was

a minor. See United States v. Coté, 504 F.3d 682, 687-88

(7th Cir. 2007) (explaining relevance of the attempt provision). The guideline defines the term “minor” expansively:

for purposes of § 2G1.3(d), a minor is either (1) a person

who has not attained the age of 18 years, (2) a person,

whether fictitious or not, who is represented by a law

enforcement officer to be under the age of 18 and

available for sexually explicit conduct, or (3) an undercover law enforcement officer who represented herself

to be less than 18 years old. U.S.S.G. § 2G1.3 app. n.1.

The enhancement under § 2G1.3(d) cannot be based

on the first of these definitions, for reasons similar to

those we discussed in our earlier opinion. There we

were considering an enhancement under U.S.S.G.

§ 2G1.3(b)(2)(B). The relevant definition of “minor” for

section (b) is narrower than it is for section (d). Section (b)

“does not apply in a case in which the only ‘minor’ . . .

involved in the offense is an undercover law enforcement

officer.” U.S.S.G. § 2G1.3(b) app. n.3(B), ¶ 2. Thus, a

person is a minor for subsection (b) purposes only if

she is less than 18 years old. The record here contained

no evidence to that effect. Zahursky, 580 F.3d at 527.
No. 11-2054 5

The government was therefore required to prove

that Holly was either a law enforcement officer or the

fictional creation of such an officer. Indeed, we suggested that this was a possibility in our earlier opinion.

Id. But Zahursky correctly notes that just as we have no

way of verifying that Holly was a 14-year-old female,

we also cannot know whether she was a law enforcement agent, or if she was anyone else. Critically,

however, we lack this clarity largely because Zahursky’s

first appeal made no mention of § 2G1.3(d). Zahursky

chose in his first appeal to focus on the undue influence

enhancement described in § 2G1.3(b)(2)(B). If he had

complained on that appeal about the section (d)

pseudo-count enhancement, then we might have ordered

an evidentiary hearing on Holly’s identity or age and

remanded for resentencing on these grounds as well.

But he did not, and so he has forfeited this line of attack.

Our remand in Zahursky’s first appeal did not give

him an unfettered right to introduce any and all new

sentencing arguments that occurred to him. Just because

some of the facts underlying the sentencing enhancements overlap does not mean that a narrow challenge

on one ground (here, the undue influence enhancement)

also sweeps in other grounds (here, the pseudo-count

enhancement treating each minor as if there had been

a separate count of conviction). This is especially so

because the relevant definition of minor is different for

the two enhancements. Compare U.S.S.G. § 2G1.3 app.

n.1 with U.S.S.G. § 2G1.3 app. n.3(B), ¶ 2. The district

court accordingly was entitled to refuse to hear

Zahursky’s new challenge. As we recently said, “when a
6 No. 11-2054

case is generally remanded to the district court for re-sentencing, the district court may entertain new arguments

as necessary . . . but it is not obligated to consider any

new evidence or arguments beyond that relevant to the

issues raised on appeal.” United States v. Barnes, 660

F.3d 1000, 1007 (7th Cir. 2011) (emphasis added).

By failing to raise the issue in his first appeal, Zahursky

forfeited his right to challenge the application of the

pseudo-count enhancement under § 2G1.3(d), and

the district court was not obliged to consider this new

argument on remand. We therefore AFFIRM Zahursky’s

sentence.

2-2-12