In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2240

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES L. PATTERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06-CR-624—Ronald A. Guzman, Judge.

ARGUED APRIL 17, 2009—DECIDED AUGUST 5, 2009

Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. James Patterson appeals several

issues related to his sentence for violation of 18 U.S.C.

§ 2423(a), which prohibits transporting a minor in interstate commerce with intent that the minor engage in

prostitution. Among the issues presented is one of first

impression in this circuit: whether 18 U.S.C. § 2423(a) is

a “crime of violence” such that application of the career

offender guideline is appropriate in this case.
2 No. 08-2240

For the reasons explained below, we affirm the judgment of the district court except with regard to the

district court’s enhancement of Patterson’s sentence for

“use of a computer.” On that issue we reverse and remand

for further proceedings consistent with this opinion.

I. Background

A. Factual Background

In 2005, James Patterson, a forty-two year old man,

met a fourteen year old girl (the “victim”) in Memphis,

Tennessee. The victim had run away from a group

home and had no money. Patterson encouraged her to

engage in prostitution. The victim began working as a

prostitute in a Memphis crack house for a pimp named

Larry Nelson. About two weeks later, Patterson asked

the victim if she would like to travel to Chicago. He told

her that in Chicago, prostitution was internet-based and

that she would not have to engage in “street-walking” to

solicit customers. Defendant’s counsel admitted to the

district court that defendant “held out” internet prostitution as “something more attractive” than what the

victim had been doing at the time. The victim agreed to

travel with Patterson to Chicago.

On October 31, 2005, Patterson drove the victim

from Memphis to Schaumburg, Illinois. For two weeks,

the victim worked as a prostitute for Patterson. During

this time, the victim gave Patterson all of the money she

earned and stayed in his hotel. Another minor female

working as a prostitute for defendant’s half-brother
No. 08-2240 3

posted prostitution advertisements for the victim on

internet sites such as Craigslist. These advertisements

contained naked photos of the victim. The other

prostitute arranged the victim’s calls to johns through

the internet and drove her to calls as well.

Patterson used physical violence against the victim

several times. On one occasion, Patterson shoved the

victim against a wall and slapped her. On another occasion, Patterson punched the victim, knocking her off a

chair, and stomped on her while she was on the floor.

After this incident, Patterson told the victim to take a

shower and prepare to work the street. On a call later

that night, a john, who saw bruises on the victim,

offered to “rescue her.” The victim went to live with the

man’s son. From the son’s house, she called her mother

in Memphis. The victim’s family had apparently been

looking for her and had spread the word in Memphis

that she was a missing and endangered child. 

B. Procedural Background

Patterson was charged with knowingly transporting a

minor in interstate commere with the intent that the

minor engage in prostitution in violation of 18 U.S.C.

§ 2423(a). Defendant pled guilty pursuant to a written

plea agreement. The agreement explained that the Guidelines “in effect at the time of sentencing” were to determine Patterson’s sentence. The agreement anticipated

that Patterson would have an offense level of 28 and a

criminal history category of IV, which resulted in an

“anticipated advisory Sentencing Guidelines range [of] 110
4 No. 08-2240

to 137 months’ imprisonment.” These calculations were

“based on the facts now known to the government.”

Additionally, the agreement stated:

Defendant and his attorney and the government

acknowledge that the above Guideline calculations

are preliminary in nature, and are non-binding predictions upon which neither party is entitled to rely.

Defendant understands that further review of the

facts or the applicable legal principles may lead the

government to conclude that different or additional

Guideline provisions apply in this case. Defendant

understands that the Probation Office will conduct

its own investigation and that the Court ultimately

determines the facts and law relevant to sentencing,

and that the Court’s determinations govern the final

Guideline calculation. Accordingly, the validity of

this Agreement is not contingent upon the probation

officer’s or the Court’s concurrence with the above

calculations and defendant shall not have a right to

withdraw his plea on the basis of the Court’s rejection of these calculations. 

The agreement also stated, in another section, that

“[d]efendant further acknowledges that if the Court does

not accept the sentencing recommendation of the

parties, defendant will have no right to withdraw his

guilty plea.”

During the plea colloquy, Patterson was placed under

oath and stated that he was fully satisfied with his attorney’s representation, had reviewed the plea agreement,

understood all of the agreement’s terms, and understood
No. 08-2240 5

the consequences of pleading guilty. The defendant told

the district judge that he understood that the judge

was not bound by the plea agreement. The court asked:

Do you understand that I will not be able to determine

the actual guideline sentencing range for your case

until after you have pled guilty and a presentence

report has been completed; because of that, the sentence calculation that I make may be different from

what you and your attorney or even what the plea

agreement contains. Do you understand that?

A: Yes.

The original Presentence Investigation Report (“PSR”)

had not treated Patterson as a career offender under

U.S.S.G. § 4B1.1 because the government and probation

office did not know that Patterson’s term of imprisonment for a 1983 conviction had ended within the last

fifteen years, a requirement for counting an offense for

the purpose of the career offender guideline. See U.S.S.G.

§§ 4B1.1, cmt. n.1; 4B1.2, cmt. n.3; 4A1.2(e)(1). After filing

the original PSR, the probation office learned from the

Tennessee Department of Corrections that Patterson had

been released within the last fifteen years for the 1983

conviction. Thus, after Patterson’s plea colloquy, the

probation office supplemented its original PSR to reflect

its view that Patterson should be treated as a career

offender on the basis of his conviction under 18 U.S.C.

§ 2423(a) and his 1983 and 1999 convictions. See U.S.S.G.

§ 4B1.1(a). Using the 2007 Guidelines, which were in

effect at the time of Patterson’s sentencing, the Supplemental PSR recommended a Guidelines range of 210 to
6 No. 08-2240

262 months. The Supplemental PSR also recommended

applying, among others, offense characteristic enhancements for “unduly influenc[ing] a minor to engage in

prohibited sexual conduct” and “use of a computer.” See

U.S.S.G. §§ 2G1.3(b)(2)(B); 2G1.3(b)(3).

After the probation office submitted the Supplemental PSR, defendant filed a pro se motion to withdraw

his guilty plea, although he was represented by counsel

at the time of the filing. In the motion, Patterson argued

that his plea was not made knowingly or voluntarily. The

district court held a hearing on defendant’s motion.

Defendant was represented by counsel at the hearing, and

counsel expressed his opinion that Patterson’s pro se

motion had no merit.

The district court ruled that it would not consider the

merits of the motion because it was not filed by counsel.

The district court additionally stated that even if it had

considered the merits, it would have denied it on the

grounds that it “ha[d] no merit.” The court informed

Patterson that he could file a motion for substitution

of attorneys if he wished. Despite the district court’s

ruling, Patterson stated at the hearing that his counsel

“promised [him] a sentence that [he] didn’t get” (although

at the time of the hearing, he had not yet been sentenced). Defendant also said that he had only had ten

minutes to look at the plea agreement before he pled

guilty. However, the district court reminded Patterson

that he had earlier stated under oath that he had

reviewed the agreement and understood its terms, which

defendant acknowledged.
No. 08-2240 7

The district court adopted the Supplemental PSR’s

Guidelines calculations and sentenced Patterson to 262

months in prison followed by five years of supervised

release. The defendant did not ask the district court to

vacate his plea at sentencing but did object to the Supplemental PSR’s application of the career offender provision as well as the “undue influence” and “use of a computer” enhancements.

Patterson now appeals his sentence on a number of

grounds.

II. Discussion

A. Evidentiary Hearing Regarding Plea Withdrawal

Patterson’s first argument is that the district court

should have held an evidentiary hearing with regard to

his motion to withdraw his plea. The district court

rejected Patterson’s motion to withdraw his plea because

it was filed pro se at a time when Patterson was represented by counsel; the district court also stated that the

motion was meritless. The government argues that the

district court was correct to reject Patterson’s motion

because it was never properly before the court and also

because Patterson did not meet his burden of showing a

fair and just reason for withdrawal of the plea.

Abuse of discretion is the standard of review for both

a district court’s denial of a motion filed pro se by a

defendant represented by counsel, see United States v.

Chavin, 316 F.3d 666, 671 (7th Cir. 2002) (“[W]hether a

defendant may act as co-counsel along with his own

attorney, is a matter within the discretion of the district
8 No. 08-2240

court.”) (citing United States v. Tutino, 883 F.2d 1125, 1141

(2d Cir. 1989)), and for a district court’s denial of an

evidentiary hearing, see Osagiede v. United States, 543 F.3d

399, 408 (7th Cir. 2008).

The decision regarding whether to allow a defendant to

represent himself when he is also represented by counsel

is “ ‘solely within the discretion of the trial court.’ ” Chavin,

316 F.3d at 671 (quoting Tutino, 883 F.2d at 1141)). A

defendant does not have a “right” to such an arrangement.

See United States v. Gwiazdzinski, 141 F.3d 784, 787

(7th Cir. 1998) (“A defendant does not have an affirmative right to submit a pro se brief when represented by

counsel.”) (citation omitted); see also United States v.

Singleton, 107 F.3d 1091, 1101 n.7 (4th Cir. 1997) (noting

that “[t]he cases reiterating the principle that courts

are not required to allow defendants to split the responsibilities of the representation with an attorney are myriad”). Indeed, this court has stated that such arrangements are disfavored. Chavin, 316 F.3d at 672.

Here, the district court rejected Patterson’s attempt at

self-representation and advised him that he could file a

motion for substitution of counsel if he wished. In light of

the district court’s wide discretion to reject pro se submissions by defendants represented by counsel, and

because the district court presented Patterson with an

alternative avenue that Patterson declined to pursue, we

conclude that the district court’s denial of Patterson’s

motion without an evidentiary hearing was not an abuse

of discretion.

However, even if Patterson had properly raised this

issue through counsel, the district court would not have
No. 08-2240 9

abused its discretion by denying the motion without an

evidentiary hearing. Federal Rule of Criminal Procedure 11

allows a defendant to withdraw a guilty plea “after the

court accepts the plea, but before it imposes sentence if . . .

the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). But a

defendant who states at a plea colloquy that his plea

was “freely and knowingly given . . . faces an uphill battle”

in convincing a judge that his reasons for withdrawal are

“fair and just” because representations made at a plea

colloquy are under oath and are given a “presumption

of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th

Cir. 1995). We have stated that district courts are “generally justified in discrediting the proffered reasons for

the motion to withdraw and holding the defendant to

[his] admissions at the [plea colloquy].” Id.

At the hearing on defendant’s pro se motion to withdraw his plea, Patterson stated that his lawyer “promised

[him] a sentence that [he] didn’t get” and that he did not

have enough time to review the plea agreement. While

on their face, those reasons appear compelling, we have

stated that “[c]laims of involuntariness or confusion that

in the abstract seem like sufficient reasons to allow a

defendant to withdraw his plea, or at least look into the

matter further, may be insufficient in the context of a

record containing substantial indications of voluntariness

and lack of confusion.” United States v. Trussel, 961 F.2d

685, 689 (7th Cir. 1992); see also Messino, 55 F.3d at 1248

(citation omitted). “One especially important consideration is the defendant’s answers to the questions posed at

his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here,
10 No. 08-2240

defendant’s reasons to withdraw his plea plainly contradicted his sworn statements during the plea colloquy.

Moreover, Patterson’s attorney, who was present at the

hearing, told the court he believed the pro se motion

lacked merit. It is also worth noting that defendant

did not indicate to the district court (and has not indicated on appeal) that he would have presented any

other evidence of involuntariness or confusion at a

putative evidentiary hearing. Thus, even if defendant

had properly requested an evidentiary hearing regarding

his request to withdraw his guilty plea, based on these

facts, and in light of the heavy burden shouldered by a

defendant when requesting to withdraw a guilty plea, we

could not conclude that the district court abused its

discretion when it denied an evidentiary hearing.

B. Patterson’s Plea

Patterson argues that, even aside from his request for

an evidentiary hearing, the district court should have

vacated his guilty plea because his plea agreement was

based on the parties’ “mutual mistake” regarding the

application of the career offender guideline, or, in an

alternative reading of the same events, because the government “breached the agreement.” The government

maintains that Patterson’s “underestimat[ion of] his

sentence” at the time he entered his plea is not a valid

reason to permit him to withdraw his plea.

Because, as discussed above, Patterson never properly

requested that the district court vacate his guilty plea, we

review for plain error. Puckett v. United States, ___ U.S. ___,
No. 08-2240 11

129 S.Ct. 1423, 1428 (2009) (finding that Rule 52(b)’s plainerror test applies to a forfeited claim that the government failed to meet its obligations under a plea agreement). Under plain error review, the defendant must

establish (1) an error (2) that was plain, (3) affected the

defendant’s substantial rights, and (4) seriously affected

the fairness, integrity, or public reputation of the judicial

proceedings. Id. at 1429; United States v. Julian, 427 F.3d

471, 481 (7th Cir. 2005).

Our precedent establishes that plea agreements are

governed by ordinary contract principles. United States

v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). In Barnes, we

stated that there must be a “meeting of the minds” on all

essential elements of a guilty plea in order for the plea

to be valid, and that, “[a]t least in theory, ambiguity in

an essential term or a mutual mistake about the meaning

of such a term can invalidate [a plea].” Id. As in the

instant case, in Barnes, the defendant argued that his

plea was invalid because neither he, the prosecutor, nor

the court realized at the time of the plea colloquy that he

would be sentenced as a career offender. Id. Though

the Barnes court acknowledged that there must be a

meeting of the minds regarding the agreement’s essential

terms, it found that the defendant’s guilty plea, which

was made pursuant to then-Rule 11(e)(1)(B), did not

contemplate the actual punishment as an essential term

of the agreement. Id. Rather, the parties left “the determination of a sentence to the discretion of the district

court, as guided by the sentencing guidelines and by

the applicable criminal statutes.” Id. Thus, the court concluded that the plea agreement was valid and enforceable.
12 No. 08-2240

This case is similar to Barnes. While it is true that

Patterson’s plea agreement “anticipated” a sentence

lower than the one he ultimately received, the agreement

stated several times that it did not ultimately control

the sentence imposed by the district court. Specifically,

the agreement stated that its Guidelines calculations

were “non-binding predictions upon which neither party

is entitled to rely” and also that the defendant could not

withdraw his plea if the district court rejected the agreement’s Guidelines calculations. Moreover, the agreement explicitly stated that it is not a Fed. R. Crim.

P. 11(c)(1)(C) plea, in which the district court is bound by

the sentencing recommendations contained in the agreement. See Barnes, 83 F.3d at 938 (noting that agreements

made under Rule 11(e)(1)(C)—a previous version of

Rule 11(c)(1)(C)—would include the defendant’s punishment as an essential term). It is thus clear here, as in

Barnes, that the defendant’s actual sentence was not an

essential term of the agreement, so the agreement

cannot be voided because of “mutual mistake” with

regard to the sentence imposed.

Patterson also argues that the government breached the

agreement by arguing for a higher sentence after it

learned that Patterson was possibly eligible for sentencing as a career offender. However, the government

never agreed to not argue for a different sentence. The plea

agreement specifically stated that “[d]efendant understands that further review of the facts or the applicable

legal principles may lead the government to conclude

that different or additional Guideline provisions apply

in this case.” While Federal Rules of Criminal Procedure

11(c)(1)(B) and (C) allow formation of an agreement that
No. 08-2240 13

binds the government, Patterson’s agreement was not

made pursuant to these provisions. Accordingly, the

government did not breach the terms of the plea agreement. See United States v. Linder, 530 F.3d 556, 564-65

(7th Cir. 2008) (rejecting argument that government

breached the plea agreement by advocating for an enhancement where agreement was not made pursuant to

Federal Rules of Criminal Procedure 11(c)(1)(B) and (C)).

C. Career Offender Enhancement

The district court determined that Patterson was a

career offender under the Sentencing Guidelines. Predicate

to this conclusion was the district court’s finding that

Patterson’s conviction for transporting a minor in interstate

commerce for the purpose of prostitution was a “crime

of violence” under U.S.S.G. § 4B1.2. Patterson argues

that 18 U.S.C. § 2423(a) is not a crime of violence

under the Supreme Court’s decision in Begay v. United

States, ___ U.S. ___, 128 S.Ct. 1581 (2008), and that his

sentencing as a career offender was therefore error. The

government argues that 18 U.S.C. § 2423(a) is a crime

of violence because it presents a great risk of physical

injury to its victims and is a purposeful, aggressive,

and violent crime. 

We review the district court’s interpretations of the

Sentencing Guidelines de novo. United States v. Howard,

352 F.2d 818, 831 (7th Cir. 2001).

The Sentencing Guidelines define a crime of violence as:

Any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that—
14 No. 08-2240

Because the ACCA uses nearly identical language to the 1

career offender guideline, this court has considered Begay to be

extremely persuasive authority regarding § 4B1.2. See, e.g.,

United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008) (citing

United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008);

United States v. Howze, 343 F.3d 919, 924 (7th Cir. 2003)).

(1) has as an element the use, attempted use, or

threatened use of physical force against the person

of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2 (2006). The government claims that

Patterson’s offense falls under the second clause of the

second prong of this definition (sometimes called the

“residual clause”) because it “involves conduct that

presents a serious potential risk of physical injury to

another.” To determine whether a conviction qualifies as

a crime of violence, courts use a “categorical approach,”

under which the Court looks to the statutory elements

of the offense and not to the particular facts of the underlying conviction. See Taylor v. United States, 495 U.S. 575,

600 (1990).

The Supreme Court’s decision in Begay analyzed

whether driving under the influence should be considered a crime of violence under the Armed Career

Criminal Act (ACCA). See Begay, 128 S.Ct. at 1583. The 1

Court first determined that the example crimes listed in
No. 08-2240 15

the first clause of the second prong of the statute (“burglary, arson, extortion, and crimes involving the use of

explosives”) limited the types of crime covered by the

residual clause (crimes “that present[ ] a serious potential

risk of physical injury to another”). The Court reasoned

that the residual clause covered only “crimes that are

roughly similar, in kind as well as in degree of risk posed,

to the examples themselves.” Id. at 1587. To help determine

whether the defendant’s crime is similar in kind to the

enumerated examples, Begay examined whether the

crime “typically involve[s] purposeful, ‘violent,’ and

‘aggressive’ conduct.” The Court found that drunk driving

was more appropriately understood as a crime of negligence or recklessness rather than one of purpose and

deliberation and therefore concluded that drunk driving

was not a crime of violence. Id.

The Supreme Court recently applied the Begay test in

Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687 (2009).

In Chambers, the Supreme Court held that a convict’s

“failure to report” is not a crime of violence. Id. at 691.

Although the government claimed that failure to report

should be understood as a crime of violence because

individuals who fail to report are likely to use violence

to avoid recapture, the Court held that failure to report

was not a crime of violence because “the crime amounts

to a form of inaction, a far cry from the purposeful, violent,

and aggressive conduct potentially at issue when an

offender uses explosives against property, commits arson,

burgles a dwelling or residence, or engages in certain

forms of extortion.” Id. at 692. The Chambers Court did not

definitively indicate whether violence that may attend
16 No. 08-2240

a crime, but is not an element of the crime, should be

considered in determining whether to treat a statutory

violation as a “crime of violence.” The Court instead

stated that “even if we assume for argument’s sake the

relevance of violence that may occur long after an

offender fails to report, we are not convinced [by the

data presented by the government supporting that proposition in this case].” Id. (surveying the data provided by

the government and concluding that it showed a relatively low incidence of violence attending arrests of

individuals who had failed to report).

While there have been several circuit court decisions

prior to Begay holding that Section 2423(a) was a crime

of violence, see, e.g., United States v. Curtis, 481 F.3d 836,

838-39 (D.C. Cir. 2007); United States v. Carter, 266 F.3d

1089, 1090-91 (9th Cir. 2001), only one court has had

occasion to consider the question after Begay, see United

States v. Williams, 529 F.3d 1 (1st Cir. 2008), cert. denied, ___

U.S. ___, 129 S.Ct. 1580 (2009). In Williams, the First Circuit

focused first on the risk of harm accompanying a violation of 18 U.S.C. § 2423(a), finding that “indecent sexual

contact crimes perpetrated by adults against children

categorically present a serious risk of physical injury.” Id.

at 5. The court was unpersuaded by the defendant’s

argument that his crime was not violent because he was

not “sexually active” in the commission of the offense

but rather, “merely facilitated others’ sexual contact

with the minor.” Id. Rather, the court found that by

transporting the minor with the intent that the minor

engage in prostitution, the defendant “placed the

minor in harm’s way and led ineluctably to a sex act . . .
No. 08-2240 17

between the minor and an older man unconcerned with

her welfare.” Id. The court also noted that the commercial

aspect of 18 U.S.C. § 2423(a)—as opposed to simple

seduction of a minor—increased the level of risk to the

minor because it increased the risk of physical abuse from

multiple partners and the risk of contracting a sexually

transmitted disease. Id. Finally, Williams noted that

Begay did not provide much guidance for its decision.

Because a new test is introduced and because the

Court’s decision is itself close, it is hard to be absolutely certain how a majority of the Justices would

apply the test to the crime at issue here—a crime that

falls neither within the safe harbor of offenses with

limited scienter requirements and uncertain consequences (like DUI), nor among those that have deliberate violence as a necessary element or even as an

almost inevitable concomitant. Adjectives like “purposeful” and “aggressive” denote qualities that are

ineluctably manifested in degree and appear in different combinations; they are, therefore, imprecise aids.

Id. at 7. Despite the ambiguity contained in Begay, however, the First Circuit found that, “[u]nlike DUI, [a violation of 18 U.S.C. § 2423(a)] is purposeful and the perpetrator is aware of the risks that the prostituted minor

will face” and that “the crime is implicitly (and sometimes

explicitly) aggressive, and coercion of the minor is

virtually inherent.” Id.

Title 18, Section 2423(a) makes it illegal to “knowingly

transport[ ] an individual who has not attained the age of

18 years in interstate or foreign commerce . . . with intent
18 No. 08-2240

that the individual engage in prostitution.” 18 U.S.C.

§ 2423(a). Defendant argues that transportation of a

minor in interstate commerce with the intent she engage

in prostitution is not “similar” in kind to the crimes listed

in Begay (burglary of a dwelling, arson, extortion, and

crimes involving explosives). He claims that the example

crimes all suggest the use of force or violence, which

18 U.S.C. § 2423(a) does not require. Patterson also

argues that the government’s emphasis on the social ills

associated with prostitution is misplaced. He points out

that 18 U.S.C. § 2423(a) does not punish prostitution, per

se, and notes that a violation of the statute does not even

require that prostitution take place.

The government argues that 18 U.S.C. § 2423(a) prohibits

purposeful, aggressive and violent conduct and therefore is similar in kind to the crimes enumerated in the

statute. First, the government says that the crime is

“purposeful” because it requires the perpetrator to knowingly transport a minor to another state as well as intend

that the minor to engage in prostitution. The crime is

therefore “deliberate,” unlike the strict liability offenses

contrasted in Begay, in which “the offender need not have

had any criminal intent at all.” Begay, 128 S.Ct. at 1586-87.

Second, the government contends that 18 U.S.C. § 2423(a)

contemplates “aggressive” conduct because commission

of the crime puts the perpetrator into a position of

power over the minor such that an element of coercion is

inherent in the crime. The government claims that the

crime, in this way, is “analogous to kidnaping,” which the

commentary to U.S.S.G. § 4B1.2 lists as an example of a

crime of violence. See U.S.S.G. § 4B1.2 cmt n.1. (However,
No. 08-2240 19

Indeed, the aim of our inquiry is to determine whether 2

Section 2423(a) is a “crime of violence.”

kidnaping requires that the defendant use force to

prevent the victim from escaping, an element not required for a conviction under 18 U.S.C. § 2423(a).) Finally,

the government argues that 18 U.S.C. § 2423(a) is a “violent” offense because the perpetrator must intend the

minor to engage in prostitution and therefore, according to the government, “know[s] that the minor will

most likely be raped, assaulted, or abused by pimps and

customers.”

We agree with the government that the crime at issue

is “purposeful” and “aggressive.” The closest question

is whether a violation of 18 U.S.C. § 2423(a) is “violent.”2

On the one hand, Patterson is correct that the statute

does not contain as an element any use of violence or

force. On the other hand, the government is correct that

violation of the statute creates a significant risk of violence

against the victim by the perpetrator as well as third

parties. Ultimately, we are persuaded by the government’s position that the risk of violence which attends a

violation of 18 U.S.C. § 2423(a) justifies its classification

as “violent” and that 18 U.S.C. § 2423(a) is therefore

“similar in kind” to the Guideline’s enumerated crimes.

While the Supreme Court has not definitively indicated

whether “attendant risks” should be taken into account

when analyzing whether a crime is similarly violent, see

Chambers, 129 S.Ct. at 692 (assuming “for the sake of

argument” that attendant risk of violence was relevant),
20 No. 08-2240

Common law burglary is defined as “breaking and entering 3

another’s dwelling at night with the intent to commit a felony.” Black’s Law Dictionary (8th ed. 2004).

consideration of this factor would appear to be appropriate in light of the fact that the second clause of

U.S.S.G. § 4B1.2(2) itself refers to the “potential risk”

inherent in crimes of violence. See U.S.S.G. § 4B1.2(2) (a

“crime of violence” is “burglary of a dwelling, arson, or

extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of

physical injury to another”) (emphasis added).

Consideration of risks attendant to commission of a

crime is also supported by U.S.S.G. § 4B1.2(2)’s explicit

enumeration of burglary as a crime of violence. Like

Section 2423(a), burglary does not require the use of force

or violence. But the Supreme Court reasoned in Taylor

3

that Congress included burglary among the “crimes of

violence” in the ACCA because 

Congress thought that certain general categories of

property crimes . . . so often presented a risk of injury to

persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of

their statutory elements, they do not necessarily

involve the use or threat of force against a person.

Taylor, 495 U.S. at 597. Likewise here, a violation of 18

U.S.C. § 2423(a) does not require violent conduct, but it

presents a substantial risk that violence will occur. Moreover, we agree with our colleagues in the First Circuit,
No. 08-2240 21

that it is “surpassingly difficult to see how burglary could

be treated as a violent crime yet child trafficking exempted.” See Williams, 529 F.3d at 8.

A violator of 18 U.S.C. § 2423(a) engages in purposeful

conduct that exposes the crime’s victim to a foreseeable

risk of violence, physical injury, and disease. We therefore conclude that 18 U.S.C. § 2423(a) is “similar in kind”

to the enumerated crimes in U.S.S.G. § 4B1.2(2) and is a

crime of violence for purposes of the Sentencing Guidelines. See Begay, 128 S.Ct. at 1587; United States v. Templeton,

543 F.3d 378, 380 (7th Cir. 2008). 

D. “Undue Influence” and “Use of a Computer” Sentence Enhancements

Patterson also objects to the district court’s enhancement

of his sentence for “Undue Influence” and “Use of a

Computer.” When reviewing a district court’s application of sentencing enhancements, we review the district

court’s legal interpretations de novo, United States v.

Katalinic, 510 F.3d 744, 746 (7th Cir. 2007), and its factual

findings for clear error, United States v. Bryant, 557 F.3d

489, 500-01 (7th Cir. 2009). The clear error standard is

significantly deferential and an appellate court “may

only reverse a factual finding under this standard when

it is left with a ‘definite and firm conviction that a

mistake has been committed.’ ” United States v. Gerstein,

104 F.3d 973, 980 (7th Cir. 1997) (quoting Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985)) (other citations

omitted).
22 No. 08-2240

1. Undue Influence

Sentencing Guideline § 2A3.2(b)(2)(B) requires a two

level enhancement where a participant “unduly influenced

the victim to engage in prohibited sexual conduct.” The

commentary to the Guideline instructs courts to closely

consider the particular facts of the case to determine whether a “participant’s influence over the victim

compromised the voluntariness of the victim’s behavior.”

U.S.S.G. § 2A3.2, cmt. n.3. This court has stated that the

defining characteristic of undue influence is that it

involves “a situation where the ‘influencer’ has succeeded

in altering the behavior of the target.” U.S. v. Mitchell, 353

F.3d 552, 557 (7th Cir. 2003).

Here, the district court applied the enhancement

because the defendant “was the one” or “was one of the

people” who helped involve the victim with prostitution.

This finding was supported by the record. The defendant

was a forty-two year old man and the victim was a fourteen year old girl at the time of the crime. The victim

testified to the grand jury that she had never worked in

prostitution before the defendant encouraged her to try

it. Moreover, the victim was destitute and penniless

when Patterson began urging her to travel to Chicago

with him to engage in internet-based prostitution, making

her more vulnerable to his influence.

Because the record supports the district court’s application of the enhancement, and because there is no basis for

a definite and firm conviction that a mistake has been

committed, we affirm the district court’s application of

the “undue influence” enhancement.
No. 08-2240 23

2. Use of a Computer

Patterson argues—and the government concedes—that

the district court erred when it applied the U.S.S.G.

§ 2G1.3(b)(3) enhancement for “use of a computer.”

Under this provision of the Sentencing Guidelines, a

defendant’s offense level is increased two levels:

[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 . . . .

U.S.S.G. § 2G1.3(b)(3). The commentary, however,

further provides that “[s]ubsection (b)(3) is intended to

apply only to the use of a computer or an interactive

computer service to communicate directly with a minor

or with a person who exercises custody, care, or supervisory control of the minor.” Id. § 2G1.3 cmt. n. 4. In this

case, no computers were used to “communicate directly”

with the victim or the victim’s custodian, so the enhancement does not apply. We therefore reverse and remand

with regard to this enhancement in order to ensure that

it played no part in Patterson’s sentence.

E. Use of the 2007 Sentencing Guidelines

Finally, Patterson argues that the district court’s use of

the 2007 Sentencing Guidelines to calculate his sentence

violated the ex post facto clause of the Constitution.

Patterson never raised this argument before the district

court, so we review for plain error. See United States v.

Baretz, 411 F.3d 867, 875 (7th Cir. 2005).
24 No. 08-2240

Patterson’s argument is foreclosed by United States v.

Demaree, 459 F.3d 791, 795 (7th Cir. 2006), which held that

a change in the Sentencing Guidelines that expands the

guidelines range for a crime does not render application of

the later-Guidelines an ex post facto law. Defendant

argues that Demaree did not take Kimbrough v. United

States, 552 U.S. 85 (2007) or Gall v. United States, 552 U.S. 38

(2007) into account. However, the holding of Demaree

has been applied after Kimbrough and Gall, see, e.g., United

States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008), and

does not contradict those decisions. Defendant’s other

argument, notwithstanding Demaree, is that offenders

who win their sentencing appeals “run the risk of a

remand for a significantly longer sentence” under a new

version of the Guidelines. However, as the government

points out, 18 U.S.C. § 3742(g)(1) directs that defendants

who win their sentencing appeals be resentenced under

the Guidelines “in effect on the date of the previous

sentencing.”

Because Patterson has presented no compelling reason

to revisit Demaree, and because his argument regarding

the potential for higher sentences on remand has no

merit, we reject his contention that the district court plainly

erred by applying the 2007 Guidelines. 

III. Conclusion

For the reasons explained above, we AFFIRM the judgment of the district court except with regard to the “use of

a computer” sentence enhancement. With regard to that
No. 08-2240 25

issue, we REVERSE and REMAND for further proceedings

consistent with this opinion.

8-5-09