* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-3164

v. (D. Kansas) TERRENCE M. BROWN,

Defendant - Appellant. (D.C. No. 97-CR-10114-01-MLB)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Terrence M. Brown pled guilty to violating 18 U.S.C . § 2251, which prohibits the sexual exploitation of children, and was sentenced to a term of 57-2-

months’ imprisonment. Brown now appeals the imposi tion of this sentence, arguing that he was entitled to two three-level red uctions in his base offense level because his offense was merely an attempt and/or a solicitation rather than a completed crime. We affirm.

BACKGROUND In August 1996, Brown invited Matthew Keller, a 16- year-old neighbor boy whom Brown had hired to mow his lawn, to his office , ostensibly to learn about computers. Keller went to Brown’s office for this purpose on at least eight occasions. On one such occasion, Brown asked Kelle r if he would like to earn some extra money working as a model. Brown told Ke ller that he could earn $5,000 by posing for nude and semi-nude pictures. In an attempt to show Keller exactly what kind of pictures he had in mind, Brown called up several pictures on his laptop computer, depicting naked and scantily-c lad young people. Brown told Keller that he (Brown) could take the pictures, or Keller could take them himself. Brown also inquired if Keller had any friends who w ould be interested in earning extra money in this way. Keller refused Brown’s of fer, telling him that he did not think it was right for him to pose for such photogr aphs, and that he did not feel comfortable asking any friends to pose.-3-

At some point during the next few weeks, Keller inf ormed his mother of the conversation he had had with Brown. Keller’s mothe r promptly notified local police officials, who, after interviewing Keller on September 11, 1996, brought in the Federal Bureau of Investigation (FBI) to assiston the case. The FBI, in an effort to obtain further incriminati ng evidence against Brown, instructed Keller to telephone Brown and inq uire about whether the modeling offer was still open. Keller called Browntwice on September 23, 1996, and the FBI recorded both conversations. Brown, ho wever, had backed off, and, although he offered to loan Keller a few hundred do llars if he needed it, told Keller “that they could not do the pictures because he had since learned that it was illegal to do so.” Appellant’s Br. at 4, app. C at 5. On October 3, 1996, pursuant to a duly-obtained search warrant, authorities searched Brown’s residence, and found, among other things, computer equipment, several computer software disks, and some video tap es. A review of the computer equipment and disks revealed “several images of nud e young males depicted in sexual conduct.” R. Vol. 3, at 6. On September 4, 1997, Brown was named in a two-count indictment filed in federal court in Kansas. Count I charged Brown with “knowingly and intentionally receiv[ing] or distribut[ing] a visua l depiction of a minor engaging in sexually explicit conduct,” in violation of 18 U .S.C. § 2252(a)(2). R. Vol. 1,-4-

Tab 1 at 1. Count II charged Brown with “knowinglyand intentionally induc[ing] or entic[ing] a minor to engage in sexually explici t conduct,” in violation of 18 U.S.C. § 2251(a). R. Vol. 1, Tab 1 at 2. In February 1998, Brown entered into a plea agreeme nt with prosecutors, under which he pled guilty to Count II, and the gov ernment dropped Count I. In a hearing on February 17, 1998, the district court ap proved the plea agreement and scheduled a sentencing hearing for May 1998. In March 1998, a probation officer prepared a presentence investigation report (PSR), in which he made the following recommendations: (1) Brown’s base offens e level should be 25, based on § 2G2.1 of the United States Sentencing Guidelin es; (2) Brown should receive a three-level reduction in his base offense level f or acceptance of responsibility; (3) Brown should receive a criminal history score o f five, placing him in criminal history category III; and (4) Brown’s sentence shou ld be between 51 and 63 months’ imprisonment. Brown filed three objections to the PSR, only one o f which is relevant here. Brown argued that he was entitled to two additional three-level reductions in his base offense level, pursuant to § 2X1.1 of the Guid elines, because his offense was only an attempt and/or a solicitation, and not a co mpleted offense. Brown contended that his adjusted base offense level shou ld be 16, rather than 22.1 The district court noted in passing that, had Browncommitted his offense

merely six weeks later, he would have been sentence d to a minimum of 30 years in a federal penitentiary. This is because the rel evant statute, 18 U.S.C. § 2251, was amended on September 30, 1996. Prior to the am endment, subsection (d) of that statute read as follows: Any individual who violates, or attempts or conspir es to violate, this section shall be fined under this title, or impriso ned not more than 10 years, or both, but, if such individual has a prior convic tion under this chapter or chapter 109A, such individual shall be fined under this title, or imprisoned not less than five years nor more than 15 years, orboth. 18 U.S.C. § 2251(d) (1995). Although Brown had two prior state convictions relating to the sexual exploitation of children, he had never before been convicted under federal child sexual exploitation statutes, and was theref ore subject only to a maximum 10-year sentence, with no mandatory minim um sentence. See also (continued...) -5- At the sentencing hearing, the district court consi dered and overruled all of Brown’s objections. The district court stated thatbecause “the substantive crime of ‘attempt’ is already contained in the statute,” § 2X1.1 was not applicable to Brown’s attempt argument, and that because “‘solici tation’ is synonymous with the language of [§] 2251(a),” Brown’s solicitation argument failed as well. R. Vol. 3, at 24. The court stated that Brown had “pl ed guilty to a crime that includes attempt and I just . . . don’t understand why in the absence of some controlling authority that I . . . should give him a three level reduction for attempt.” R. Vol. 2, at 57. Having overruled Brown’s objections, the district c ourt sentenced Brown to 57 months imprisonment, and directed that this fede ral sentence run consecutively to a state sentence Brown was already serving. 1 Brown now appeals from this1 (...continued)

U.S. Sentencing Guidelines Manual § 5G1.1 (1995). However, after the September 1996 amendments to the statute, Brown wou ld have been subject to a 30-year minimum sentence, because the 1996 amendments not only stiffened the sentences, but also incorporated prior state convictions for child sexual exploitation into the sentencing calculus. See 18 U.S.C. § 2251(d) (1998).

2 The 1995 version of the Sentencing Guidelines Manua l was applied in this case, and neither party contends that a different v ersion should be applied. R. Vol. 3, at 7. -6- sentence, and asserts that he is entitled to two ad ditional three-level reductions in base offense level because his offense was an attempt and a solicitation rather than a completed offense.

DISCUSSION We believe that the district court correctly determ ined that Brown was not entitled to either of the requested three-level red uctions in his base offense level. We discuss the attempt and solicitation issues in turn. Section 2X1.1 of the United States Sentencing Guide lines provides for a three-level reduction in a convict’s base offense l evel if the offense was merely “an attempt” and not a fully completed crime. U.S. Sentencing Guidelines Manual § 2X1.1(b)(1) (1995) 2 ; see United States v. Bolden , 132 F.3d 1353, 1357 (10th Cir. 1997), cert. denied , 118 S. Ct. 1686 (1998). The statute to which Brown pled guilty reads, in relevant part, as follo ws:-7-

Any person who employs, uses, persuades, induces, e ntices, or coerces any minor to engage in . . . any sexually explicit cond uct for the purpose of producing any visual depiction of such conduct, sha ll be punished as provided under subsection (d) . . . . 18 U.S.C. § 2251(a) (1995). Brown did not plead g uilty to an attempt to violate § 2251(a), but rather pled guilty to a completed cr ime. Because Brown committed a completed crime, rather than a mere attempt, the district court’s decision not to apply § 2X1.1 was proper. We also agree that the district court properly deni ed Brown’s request for a separate three-level reduction for solicitation. G uideline § 2X1.1(b)(3) mandates that a convict’s base offense level be reduced by t hree levels “[i]f [it is] a solicitation,” unless “the statute treats solicitat ion of the substantive offense identically with the substantive offense.” The relevant statute, by using terms such as “entic e” and “induce,” clearly intended to treat solicitation of the crime “identi cally with the substantive offense.” USSG § 2X1.1(b)(3)(B) (1995). Under suc h circumstances, the Guidelines dictate that no three-level reduction sh ould issue.-8- CONCLUSION For the foregoing reasons, we conclude that the dis trict court properly refused to grant Brown’s requests for two three-lev el reductions in his base offense level. Brown’s sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge