In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2316

United States of America,

Plaintiff-Appellee,

v.

Joseph D. Ramsey,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99-CR-40096-JPG--J. Phil Gilbert, Judge.

Argued September 27, 2000--Decided January 18, 2001

 Before Posner, Coffey, and Kanne, Circuit Judges.

 KANNE, Circuit Judge. On February 3, 2000,

Joseph Ramsey pleaded guilty to three counts of

distribution of crack cocaine in violation of 21

U.S.C. sec. 841(a)(1). The Pre-Sentence

Investigation Report ("PSR") recommended applying

a two level sentencing enhancement because of

Ramsey’s use of a minor to commit the crimes,

pursuant to United States Sentencing Guidelines

(U.S.S.G.) section 3B1.4. Over Ramsey’s

objections, the district court applied the

enhancement and sentenced Ramsey to 121 months

imprisonment./1 On appeal, Ramsey objects to the

application of the enhancement, arguing that he

did not "use" his brother within the definition

of section 3B1.4. He also contends that the court

erred by failing to apply the rule of lenity. As

the district court’s application of the

enhancement was proper, we affirm.

I. History

 On November 12, 1999, a confidential source

working for the Federal Public Housing Drug Task

Force in Cairo, Illinois, notified Federal Bureau

of Investigation ("FBI") agents in Carbondale,

Illinois, that the defendant-appellant, nineteen

year old Joseph Ramsey ("Ramsey"), was involved

in the selling of crack cocaine. Through the

confidential source, the FBI agents made

arrangements for Ramsey to sell crack cocaine to
an undercover agent in Cairo. On November 16,

Ramsey traveled with the confidential source and

his sixteen year old brother Duane Ramsey

("Duane") to Fort Defiance Park in Cairo where

the sale was to take place. When they reached the

park, Ramsey, the confidential source, and Duane

all got out of the car, though only Ramsey and

the confidential source approached the agent;

Duane stayed behind. The undercover agent did not

initially know who Duane was, as he had only

expected Joseph and the confidential source.

 During the transaction, Ramsey did all the

talking while Duane remained in the background.

After the undercover agent arranged to make the

purchase with Ramsey, Ramsey called Duane over

and told him to go ahead and show the undercover

agent the crack cocaine. Duane pulled the crack

cocaine out of his pocket and gave it to the

undercover agent. The agent then gave the money

to Duane. The agent then asked Ramsey if he could

supply two more ounces of crack cocaine. Ramsey

replied that he could, and agreed to be contacted

through the confidential source. 

 On November 17, the parties met for the second

time at Fort Defiance Park. Once again, Ramsey

negotiated the final details of the transaction.

He told the agent how much crack cocaine he and

Duane had brought and agreed with the agent on a

price. Ramsey then motioned to Duane to provide

the crack cocaine to the agent, and the agent

gave Duane the money.

 Upon entering their car, Ramsey and Duane were

taken into custody by law enforcement agents who

had been providing surveillance. After waiving

his constitutional rights, Ramsey admitted that

he and his brother had sold crack cocaine to the

undercover agent on November 16 and 17. Ramsey

told the agents that, at the time he was

contacted to sell the crack cocaine, he did not

have the quantity that the individual wanted to

buy. Ramsey then went to Duane and arranged for

him to provide the rest of the crack cocaine

needed for the sale. When the agents asked Ramsey

why he was the one doing all the talking, he

responded that Duane was simply too scared to do

so. Ramsey also admitted that he had sold in

excess of fifty grams of crack cocaine in the two

years prior to his arrest, not counting the

amount delivered to the undercover agent on

November 16 and 17.

 On February 3, 2000, Ramsey pleaded guilty to

three counts of distribution of crack cocaine. A

PSR was submitted on March 27, recommending

application of the two level enhancement pursuant

to U.S.S.G. section 3B1.4 based on Ramsey’s use

of his juvenile brother in the commission of two
of the distributions. U.S. Sentencing Guidelines Manual

sec. 3B1.4 (1998). On April 18, Ramsey filed

objections to the recommendation. The probation

office submitted an Addendum to the PSR

maintaining the position that the enhancement

should be applied. 

 On May 12, after reviewing the objections and

hearing oral argument, the district court found

that Ramsey did use his younger brother Duane

within the meaning of section 3B1.4, noting that

Ramsey directed, commanded, and encouraged his

minor brother. The court thus overruled

Defendant’s objection and applied the two level

enhancement. Ramsey appeals this application.

II. Analysis

 Joseph Ramsey contends that the district court

committed error in increasing his total offense

level by two points pursuant to U.S.S.G. section

3B1.4. Ramsey argues that he did not direct or

command the actions of his juvenile brother. He

thus contends that by applying the enhancement to

the facts of this case, the district court

misinterpreted the meaning of "use." On appeal

Ramsey also argues that the language in section

3B1.4 is ambiguous, and that the rule of lenity,

which requires ambiguity to be resolved in favor

of the criminally accused, should be applied. The

nature of the interaction between Ramsey and his

juvenile brother is a question of fact, which we

review for clear error. See United States v.

Bailey, 227 F.3d 792, 801 (7th Cir. 2000); United

States v. Vivit, 214 F.3d 908, 914 (7th Cir.

2000). We review the district court’s

interpretation of section 3B1.4 de novo. See

Vivit, 214 F.3d at 914; United States v. Brack,

188 F.3d 748, 765 (7th Cir. 1999).

A. The Use of a Minor Enhancement

1. Validity of Section 3B1.4

 As a preliminary matter, we feel compelled to

address the validity of section 3B1.4. Though

Ramsey did not challenge the validity of the

provision before this court,/2 the Sixth Circuit

has addressed the issue, and found the provision

to be inapplicable to defendants who have not

attained the age of twenty-one. Upon

consideration, we respectfully disagree with the

Sixth Circuit, and find that the Sentencing

Commission did not abuse its discretion when it

promulgated section 3B1.4 to include all

defendants, regardless of age. 

 Congress created the Sentencing Commission in

order to "establish sentencing policies and

practices for the Federal criminal justice

system." 28 U.S.C. sec. 991(b)(1) (1994); see

also Mistretta v. United States, 488 U.S. 361,
367-70, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).

In addition to promulgating a set of sentencing

guidelines, see sec. 994(a)(1), the Commission is

expected to periodically review the guidelines,

and revise them as necessary. See sec. 994(o).

Any amendments to the guidelines are submitted to

Congress and automatically take effect 180 days

after submission, unless Congress modifies or

disapproves an amendment. See sec. 994(p).

 Ten years after the creation of the Commission,

Congress passed the Violent Crime Control and Law

Enforcement Act of 1994. Pub. L. No. 103-322,

1994 HR3355, sec. 140008, 108 Stat. 2033 (1994).

This Act included a large list of directives to

the Sentencing Commission commanding the

amendment of existing guidelines, and

promulgation of new ones. The precursor to

section 3B1.4 directed the Sentencing Commission

"to promulgate guidelines or amend existing

guidelines to provide that a defendant twenty-one

years of age or older who has been convicted of

an offense shall receive an appropriate sentence

enhancement if the defendant involved a minor in

the commission of the offense." Id. sec. 140008

(emphasis added). The Commission undertook this

task, but when it promulgated the new guideline,

it eliminated the requirement that the defendant

be at least twenty-one to be subject to the

enhancement. Thus, section 3B1.4 reads as

follows: "If the defendant used or attempted to

use a person less than eighteen years of age to

commit the offense or assist in avoiding

detection of, or apprehension for, the offense,

increase by two levels." U.S.S.G. sec. 3B1.4

(emphasis added). The resulting enhancement is

thus applicable to defendants of all ages. See

id.; see also Butler, 207 F.3d at 844 (Clay, J.).

 The Supreme Court has held that "the Commission

enjoys significant discretion in formulating

guidelines." Mistretta v. United States, 488 U.S.

at 377. In United States v. Hill, 48 F.3d 228

(7th Cir. 1995), we stated that when the

Commission is "exercising this delegated power,

the courts cannot interfere or second-guess

unless the Commission oversteps constitutional

bounds." Id. at 231. The Eighth Circuit took this

language further, holding that, "[g]iven

Congress’s supervisory role, the Sentencing

Commission’s formulation of the Guidelines is not

subject to judicial review unless the Commission

oversteps constitutional bounds." United States

v. Vincent, 167 F.3d 428, 431 (8th Cir. 1999)

(citing Hill, 48 F.3d at 231), cert. denied, 528

U.S. 848 (1999). Since our decision in Hill,

however, the Supreme Court has clarified the

level of discretion accorded to the Sentencing

Commission. "Broad as that discretion may be . .
. it must bow to the specific directives of

Congress. In determining whether [the Amendment]

accurately reflects Congress’ intent, we turn, as

we must, to the statutory language." United

States v. LaBonte, 520 U.S. 751, 757, 117 S. Ct.

1673, 137 L. Ed. 2d 1001 (1997) (finding that the

Commission’s revised commentary to a guideline

was inconsistent with the plain language of the

original congressional directive, and thus had to

give way. LaBonte).

 The issue, then, is whether the Commission

obeyed the specific directive of Congress. In the

original statutory language, Congress directed

that an enhancement be applied to all defendants

age twenty-one and older. See Pub. L. No. 103-

322, sec. 140008. The Sixth Circuit found that by

eliminating the age restriction, section 3B1.4

"was a direct overruling of an explicit

Congressional declaration." Butler, 207 F.3d at

850 (Jones, J., concurring). Because the

Commission did not obey the specific

congressional directive, the court would not

apply the guideline. See id. at 849-52. Yet,

another view is possible: that the Commission did

promulgate a guideline that encompassed the

directive of Congress. Under section 3B1.4,

defendants age twenty-one or older will receive

a sentence enhancement if the defendant used a

minor in the commission of the offense. The

Commission simply expanded the provision to

encompass a greater number of defendants./3 This

and at least one other circuit have found that it

is within the Commission’s statutory mandate to

legislate more broadly than Congress. See United

States v. Lauer, 148 F.3d 766, 770 (7th Cir.

1998) (upholding the Commission’s discretion to

broaden the statutory definition of "financial

institution" through the Guidelines’ commentary);

United States v. Ferrarini, 219 F.3d 145, 159-60

(2nd Cir. 2000) (holding that "the Commission was

fully empowered, under [28 U.S.C. sec. 994], to

adopt the definition of ’financial institution’

currently contained in the Guidelines, even

though the definition is broader than that

suggested [by Congress]"). As long as the

Commission’s guideline is not "at odds" with the

congressional directive, it is within the

commission’s discretion to enlarge the category

of defendants to whom an enhancement will apply.

See LaBonte, 520 U.S. at 757; Ferrarini, 219 F.3d

at n.11; see also Mistretta, 488 U.S. at 377. 

 Further, the Commission is governed by more

than just the congressional directive to amend

the guidelines. The Commission’s governing

statute requires it to consider the possible

relevance of age in establishing categories of

defendants for use in the guidelines. See 28

U.S.C. sec. 994(d)(1) (1994). With respect to
this particular enhancement, Congress also

directed the Commission to consider "the possible

relevance of the proximity in age between the

offender and the minor(s) involved in the

offense." Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322,

sec. 140008(b)(4), 108 Stat. 1796 (1994).

Further, one of the Commission’s responsibilities

is to ensure uniformity in sentencing. See 28

U.S.C. sec. 991(b)(1)(B) (1994). It is possible

that, after considering the relevance of age to

this enhancement, the sentencing commission

concluded that a nineteen year old defendant

exerts as much influence over the minors he

recruits as does a twenty-one year old defendant,

with the potential to cause an equal amount of

harm. The two categories of defendants would thus

deserve equal punishment.

 The argument that the Commission obeyed the

congressional directive is weakened somewhat by

the legislative history of section 140008. The

original Senate version of the provision provided

for the enhancement to apply to defendants

eighteen years of age or older./4 Violent Crime

Control and Law Enforcement Act of 1993, Senate

amendment no. 1170, 103rd Cong., 139 Cong. Rec.

S15,638 (1993). This proposal was essentially

rejected by the proposed House versions, which

all state that the enhancement would apply only

to defendants twenty-one years or older./5 See,

e.g., 140 Cong. Rec. H8772-03 (1994); 140 Cong. Rec.

H7372-01 (1994). Though we found no discussion in

the record explaining the change, the eighteen

year old formulation was eventually rejected in

favor of the narrower formulation. The final

version of the provision, codified in Pub. L.

103-322, section 140008, used the House’s twentyone years or older formulation. 

 Further, discussions about the "solicitation of

a minor" enhancement often referenced a group of

provisions providing for mandatory minimum

sentences for defendants twenty-one or older.

Minimum sentences were discussed for defendants

who sell drugs to a juvenile, buy drugs from a

juvenile, use a juvenile to sell drugs, or use a

juvenile to avoid detection of a drug offense.

See, e.g., 140 Cong. Rec. S12496-01 (1994). The age

limit thus seems to have been, at least

initially, part of a coordinated plan to punish

twenty-one year old (or older) defendants. 

 Admittedly, it is possible that the Commission

might not have given sufficient weight to the

congressional directive. However, "Congress’

expression of intent as to sec. 3B1.4 did not

begin and end with its enactment of sec. 140008."

Butler, 207 F.3d at 845 (Clay, J.). Congress

could have rejected or amended the Guideline
before it went into effect. The Commission

submitted the draft of section 3B1.4 to Congress

on May, 1, 1995, in the form of Amendment 527.

See Amendments to the Sentencing Guidelines for

the United States Courts, 60 Fed. Reg. 25074,

25086 (May 10, 1995). The Commission stated that

the amendment implemented the original

congressional directive in a slightly broader

form. Id. On October 30, 1995, Congress

considered and rejected some of the amendments

proposed on May 1, 1995, see Pub. L. No. 104-38,

109 Stat. 334 (1995), but did not act to modify

or disapprove Amendment 527./6 Thus, the

amendment became effective on November 1, 1995.

See U.S.S.G. app. C (1998). Particularly in light

of its rejection of other proposed amendments, by

not taking action with respect to section 3B1.4,

Congress implicitly accepted the Commission’s

elimination of the age restriction./7 

 We thus find that the Sentencing Commission did

not misread congressional intent, but rather was

exercising reasonable discretion in promulgating

a guideline that reaches defendants under age

twenty-one. We will now consider the

appropriateness of applying the enhancement to

Mr. Ramsey.

2. Interpretation of Section 3B1.4

 To determine the meaning of the guideline at

issue, we begin with the language of the statute.

See United States v. Ron Pair Enters., Inc., 489

U.S. 235, 241, 109 S. Ct 1026, 103 L. Ed. 2d 290

(1989). Section 3B1.4 provides for a two-level

sentence enhancement "[i]f the defendant used or

attempted to use a person less than eighteen

years of age to commit the offense." U.S.S.G.

sec. 3B1.4. Application note one to section 3B1.4

explains that "’used or attempted to use’

includes directing, commanding, encouraging,

intimidating, counseling, training, procuring,

recruiting, or soliciting." Id. cmt. n.1. The

Supreme Court addressed the interpretation of the

word "use" in another statutory scheme and

concluded that the word "must be given its

’ordinary or natural’ meaning." Bailey v. United

States, 516 U.S. 137, 145, 116 S. Ct. 501, 133 L.

Ed. 2d 472 (1995) (quoting Smith v. United

States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed.

2d 138 (1993)). As illustrated by reference to a

dictionary, the verb "use" means "to avail

oneself of; to employ; to utilize; to carry out

a purpose or action by means of; to put into

action or service, especially to attain an end."

Black’s Law Dictionary 1541 (6th ed. 1990) (citing

State v. Howard, 221 Kan. 51, 557 P.2d 1280, 1281

(Kan. 1976)). In addition we must consider

section 3B1.4 in light of its placement within

the Sentencing Guidelines, as "the meaning of
statutory language, plain or not, depends on

context." King v. St. Vincent’s Hosp., 502 U.S.

215, 221, 112 S. Ct. 570, 116 L. Ed. 2d 578

(1991); see also Shell Oil Co. v. Iowa Dept. of

Revenue, 488 U.S. 19, 26, 109 S. Ct. 278, 102 L.

Ed. 2d 186 (1988). 

 This court has had occasion to review the

application of section 3B1.4 numerous times, and,

in accord with the above definitions, has

interpreted "used or attempted to use" fairly

broadly. Most recently, in United States v.

Vivit, we explained that the defendant "’used

minors in the commission of his crimes’ if his

affirmative actions involved minors in his

criminal activities." Vivit, 214 F.3d at 920

(quoting United States v. Brack, 188 F.3d 748,

765 (7th Cir. 1999). This test can be met when

the minor is a partner in the criminal offense,

see United States v. Benjamin, 116 F.3d 1204,

1206 (7th Cir. 1997), as well as when the minor’s

role is subordinate to that of the criminal

defendant. In Benjamin, we indicated that a

defendant who partners with a minor will be found

to have used that minor to commit his crime in

the sense contemplated by section 3B1.4 . See id.

This conclusion is in accord with application

note one, which states that "use" includes

directing and encouraging. By forming a

partnership with a minor, a criminal defendant is

undeniably encouraging that minor to commit a

crime. The fact that the minor is a voluntary

participant and equal does not make the act

socially acceptable. 

 In this respect, our interpretation of section

3B1.4 differs from that of the Sixth Circuit. In

United States v. Butler, 207 F.3d 839 (6th Cir.

2000) (Jones, J., concurring), the Sixth Circuit

declined to follow our decision in Benjamin. Id.

at 847-49. The court in Butler instead held that

"the term ’use’ requires a showing of more than

a mere criminal partnership." Id. at 849 (stating

that "’using’ a minor to carry out criminal

activity entails more than being the equal

partner of that minor in committing a crime").

This holding seemed partially driven by the fear

that ruling otherwise would create a strict

liability enhancement. See id. at 848. As the

court stated, "if numerous adult defendants

participated in a crime along with a minor, every

single one of the adult defendants would be

subject to the two level enhancement, regardless

of the roles they played in involving the minor

in the crime." Id. at 848. Our position, however,

does not automatically lead to the conclusion

feared by the Sixth Circuit. The decision in

Benjamin turned on the fact that there was one

defendant who was found to have conspired with a

minor. Because only two people were involved in
the commission of the crime, there was no need to

examine who "used" the minor. However, that

decision did not eliminate the requirement that

a defendant must affirmatively involve a minor in

order to be eligible for the enhancement. See

Vivit, 214 F.3d at 920. Thus it is possible that,

in a case involving multiple defendants and a

minor, some might be found to have used the minor

while others would not. For example, a defendant

who was not aware that the minor was

participating, and who had no contact with the

minor, probably would not be found to have used

the minor. This circuit’s interpretation of

section 3B1.4 does not remove the need for case

by case analysis; the defendant must still take

affirmative acts to involve the minor in the

commission of the offense. See Butler, 207 F.3d

at 848; see Vivit, 214 F.3d at 920./8

 Children often look up to their older siblings,

friends, and acquaintances. It is not

unreasonable to assume that Congress wanted to

discourage putative defendants from involving

minors in criminal activity, as equals or

otherwise. To shield defendants from the

application of this provision simply because the

minor that they solicited is given a substantial

role in the commission of the offense would be a

blow to the purpose of the provision: to

discourage defendants from involving minors in

the commission of crimes. Thus, regardless of

whether the minor is a partner or a subordinate,

the enhancement will be applied where the

defendant affirmatively involved the minor in the

commission of a crime. 

 Under our test, the inquiry is whether the

defendant affirmatively involved a minor in the

commission of an offense, regardless of whether

the minor is a partner to the offense or is in a

subordinate position. In the instant case, the

correct inquiry is thus whether Ramsey directed,

commanded, encouraged, or recruited Duane in

order to commit these drug offenses. 

3. Application of Section 3B1.4 

 The district court correctly determined that

this factual situation falls within the purview

of section 3B1.4. First, the factual findings

underlying the application of the sentencing

enhancement were not clearly erroneous. While

Ramsey alleges that there is no evidence to

support the finding that he directed, commanded,

or recruited Duane, the record indicates

otherwise. Ramsey made the initial contact with

the confidential source. Ramsey then recruited

Duane into the commission of the crime by asking

him to supply the additional crack cocaine needed

to complete the sale. During the transactions on
November 16 and 17, Ramsey made all of the

arrangements with the undercover agent, and did

all of the talking. Duane was called over by

Ramsey only after the final arrangements were

made. At that time, Ramsey directed Duane to show

the undercover agent the crack cocaine. On both

occasions, Duane complied, gave the crack cocaine

to the agent, and accepted the agent’s money.

None of these facts are disputed by Ramsey.

 Second, the district court did not err in its

interpretation or application of section 3B1.4.

The transcript from the sentencing hearing

indicates that the district court focused on the

"directing, commanding, [and] encouraging"

language of the guideline’s application notes.

From the above facts, it is clear that Ramsey did

all of these things. Further, Ramsey took

numerous affirmative actions to involve his

brother, a minor, in the distribution of crack

cocaine, action which would constitute

"recruiting." U.S.S.G. ch. 3, pt. B, cmt. n.1.

Though a partnership relationship would not

prevent application of the enhancement, as

explained above, the facts indicate that the

minor was in a subservient position to Ramsey,

making this a case clearly within the meaning of

section 3B1.4, even for our colleagues in the

Sixth Circuit.

 Ramsey argues that Vivit and the cases that it

relied upon are all distinguishable from the

present case. We do not agree. Vivit involved a

medical doctor who directed two minors to falsify

attendance sheets so that he could file false

insurance claims on their behalf. United States

v. Vivit, 214 F.3d 908 (7th Cir. 2000). By

directing the minors to create false records, the

doctor involved minors in his crime, and thus

used them within the definition of section 3B1.4.

Ramsey attempts to distinguish the present case

by focusing on the substantial age differential

between the minors and the defendant in Vivit, as

compared to the three years that separate Ramsey

and his brother Duane. First, Ramsey suggests

that the minors in Vivit would not necessarily

have known what they did was illegal (due to the

nature of the crime--fraud) whereas the minor

here was well aware of the illegality of his

acts. Even assuming the truth of this assertion,

the distinction is not relevant. The enhancement

in section 3B1.4 focuses on whether the defendant

used a minor in the commission of a crime, not

whether the minor knew that he was being used to

commit a crime. While Ramsey is perhaps

implicitly arguing that a minor who understands

the illegality of his action would be a partner

to the crime, this would not render the guideline

inapplicable, as noted above. Second, Ramsey

argues that Vivit is distinguishable since the
defendant there was presumably much older and

therefore capable of exercising considerable

persuasion over the minors; the implication of

this argument is that the enhancement should not

be applied when the defendant and a minor are

close in age. We do not agree. As the court noted

at oral argument, the closeness in age might have

led the district court to consider granting a

downward departure, but it does not prevent the

application of section 3B1.4.

 Ramsey’s attempts to distinguish other cases are

also unavailing. In United States v. Benjamin,

116 F.3d 1204 (7th Cir. 1997), the court found

that the defendant had conspired with a minor and

that the minor was thus his partner in crime. See

id. at 1206. This led to the conclusion that the

minor was used by the defendant. See id. Ramsey

argues that, as there is no charge of conspiracy

in the instant case, Benjamin is not controlling.

However, we rely on Benjamin to show that a minor

who was a partner can be considered "used" by a

defendant; this is true regardless of whether

there is a conspiracy or not. Further, the

introductory comment to Chapter 3, Part B of the

sentencing guidelines makes clear that "the

determination of a defendant’s role in the

offense is to be made on the basis of all

[relevant] conduct . . . and not solely on the

basis of elements and acts cited in the count of

conviction." U.S.S.G. ch. 3, pt. B, introductory

cmt. The facts here could support a finding of

conspiracy, thus making Benjamin an identical

situation. 

 Finally, United States v. Brack, 188 F.3d 748

(7th Cir. 1999), presents a situation very close

to the present one. During two telephone

conversations, the defendant in Brack asked a

minor to bring her crack cocaine. This court held

that this constituted "use" of a minor,

regardless of the fact that the minor was a

willing participant in the crime. In fact, there

the minor was "a high-ranking, salaried member of

[the defendant’s] organization." Id. at 765. Thus

Ramsey’s argument that Duane was not "used"

simply because he was a willing participant is

not tenable.

 The District Court thus did not err in

increasing Ramsey’s sentence by two levels due to

his use of his minor brother Duane in the

commission of his drug offenses. 

B. Rule of Lenity

 On appeal, Ramsey argues that the term "use" in

section 3B1.4 is ambiguous and that the district

court should have applied the rule of lenity.

Ramsey admits that he did not specifically

request that this rule be applied, but contends
that his objections to the PSR and counsel’s

argument at sentencing were enough to preserve

the issue for appeal. He contends that, at worst,

his failure to cite to the rule should be

construed as a forfeiture, subjecting the

sentencing decision to plain error review. The

government argues that Ramsey’s failure to raise

this issue in the district court operates as a

waiver, which precludes review by this court. We

agree with the government, and find that Ramsey’s

failure to raise the rule of lenity at the

sentencing hearing operated as a waiver. 

 Waiver occurs when the defendant "intentionally

relinquishes a known right." United States v.

Staples, 202 F.3d 992, 995 (7th Cir. 2000)

(citing, inter alia, United States v. Olano, 507

U.S. 725, 730-734, 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993)). During argument before the district

court, Ramsey did not argue that section 3B1.4

was ambiguous. Instead, he chose to adopt a

specific interpretation of the term "use" and

argue for the application of his interpretation.

The district court disagreed with Ramsey and

adopted a contrary interpretation, prompting the

instant appeal. Thus, not only did Ramsey never

mention the rule of lenity in the district court,

but he never even argued that the meaning of

"use" was ambiguous. Asserting now that the rule

of lenity should be applied is simply the

Defendant’s last ditch effort to reduce his

sentence.

III. Conclusion

 The district court did not err by increasing

the defendant’s total offense level by two points

for using a minor in the commission of his

offense. That court’s factual findings were not

erroneous and their interpretation and

application of U.S. Sentencing Guideline section

3B1.4 was correct. We AFFIRM.

/1 In addition, the district court sentenced Ramsey

to a four-year term of supervised release and

imposed a $300 special assessment and a $300

fine.

/2 In his brief before this court, Ramsey relied

upon United States v. Butler, 207 F.3d 839 (6th

Cir. 2000), for the proposition that a defendant

who partnered with a minor would not be

considered to have "used" that minor. Defendant’s

brief conceded that the court in Butler had

reviewed the legislative history and found sec.

3B1.4 to be valid; thus a court could apply the

enhancement to defendants under the age of
twenty-one. This concession, however, was

inappropriate. In Butler, the Sixth Circuit

issued two opinions. The opinion relied upon by

the Defendant, Judge Clay’s opinion, did not

constitute the opinion of the court on the issue

of the validity of sec. 3B1.4 (Part II.B.1). The

Sixth Circuit’s opinion on the validity of sec.

3B1.4 is actually found in Judge Jones’

concurring opinion, which was joined by Judge

Cole. See Butler, 207 F.3d at 849-52 (Jones, J.,

concurring). Judge Jones’ opinion found that the

text of sec. 3B1.4 was not a sufficiently

reasonable implementation of the congressional

directive. See id.; infra notes 3 and 7 and

accompanying text. As sec. 3B1.4 did not comport

with congressional intent, the court remanded for

imposition of a new sentence in accordance with

the original congressional directive. See Butler,

207 F.3d at 852 (Jones, J., concurring). 

/3 The United States Government, in its submissions

to the Sixth Circuit in Butler, contended that

the removal of the age limitation was reasonable

because the Commission simply "’implemented

Congress’s directive in a slightly broader fashion.’"

Butler, 207 F.3d 839, 850 (Jones, J., concurring)

(quoting Gov’t Br. at 9). The Sixth Circuit found

this argument unpersuasive. Id. at 850-851.

First, they found that "reflexively relying on

the commission’s characterization of its own

amendment would abandon our judicial role ’in

determining whether [the] [a]mendment accurately

reflects Congress’ intent.’" Id. at 850 (quoting

LaBonte, 520 U.S. at 757, 117 S. Ct. 1673).

Second, they found that "the limit was a core

aspect of th[e] directive." Id. at 851. 

/4 There was a rather lengthy discussion on this

enhancement at the time of its introduction on

the floor. Senator Pressler, the author of the

amendment, said that it dealt "with the

particularly heinous circumstance of an adult

criminal using children to commit their crimes."

139 Cong. Rec. S15638 (1993). He mentioned gang

violence in particular as one area of concern. 

/5 Congressional Record indicates that the House

yielded to the Senate section. See 140 Cong. Rec.

H8772-03 (1994); 140 Cong. Rec. H7372-01 (1994).

However, we could not find any House version

adopting the Senate version of the proposed

amendment. 

/6 As noted by Judge Clay’s opinion in Butler,

"Congress disapproved of a proposed amendment

that would have eliminated the 100:1 sentencing

ratio that treats one who deals in a given

quantity of crack cocaine the same as it treats

one who deals in 100 times as much powder
cocaine." Butler, 207 F.3d at n.1 (Clay, J.)

(citing United States v. Gaines, 122 F.3d 324,

327 (6th Cir. 1997)). 

/7 But see Burns v. United States, 501 U.S. 129,

136, 111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991)

("’Not every silence is pregnant.’") (quoting

Illinois Dept. of Public Aid v. Schweiker, 707

F.2d 273, 277 (7th Cir. 1983)). In Butler, the

Sixth Circuit cited Burns for the proposition

that "silence should not be ’credited when it is

contrary to all other textual and contextual

evidence of congressional intent.’" 207 F.3d at

851 (Jones, J., concurring) (quoting Burns, 501

U.S. at 136). The court found that the original

directive was "sufficiently clear to overcome an

argument" of congressional silence. Id. Judge

Jones noted that it is the responsibility of the

courts to "squar[e] the enacted guideline with

the original statutory language." Id. (citing

Burns, 501 U.S. at 136). Inferring too much from

silence "would lead courts wholly to abandon

their role of assessing whether enacted

guidelines comport with congressional intent."

Id. (citing LaBonte, 520 U.S. at 757). 

/8 The Sixth Circuit also found that a strict

liability enhancement would not comport with the

statutory scheme. As noted above, we do not agree

that our view creates a strict liability

enhancement. Further, we find that interpreting

the word "use" to encompass situations where the

defendant partners with a minor is consistent

with the statutory scheme. Part B of the

Sentencing Guidelines is entitled "Role in the

Offense" and "provides adjustments to the offense

level based upon the role the defendant played in

committing the offense." U.S.S.G. ch. 3, pt. B,

introductory cmt. (1998). One other enhancement

in Part B is similar to the use of a minor

section, Abuse of Position of Trust or Use of a

Special Skill, in that both punish defendants for

abusing a superior social position. See U.S.S.G.

sec. 3B1.3, cmt. background (1998) (explaining

that the enhancement is justified because the

defendant’s position or skill level makes his

behavior more blameworthy). The abuse of position

of trust enhancement has been applied to

situations where the criminal defendant partnered

with a willing participant. See United States v.

Polichemi, 219 F.3d 698, 713-14 (7th Cir. 2000),

cert. denied, Neal v. United States, 121 S. Ct.

485, 69 U.S.L.W. 3333 (2000). Just as an attorney

who partners with a client to commit a crime

would receive an enhancement under sec. 3B1.3 for

abuse of a position of trust, see id. at 713, an

adult who partners with a minor to commit a crime

will receive an enhancement under sec. 3B1.4 for

use of a minor.