Digital Deception: The Undue Influence Enhancement in the Sentencing of Cyber-Predators Caught in Online Sting Operations

June 16, 2012

When cyber-predators are caught through online sting operations and found guilty of the underlying statutory violation, judges must look to the United States Sentencing Guidelines (“Sentencing Guidelines”) to determine what sentences offenders will serve. One of the sentencing guidelines applicable to such cases is section 2A3.2, “Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts.” Section 2A3.2 is intended to apply to consensual acts between the defendant and the victim which are illegal due to the victim’s age.
Section 2A3.2 includes a provision allowing for a sentencing increase, or “enhancement,” when the offender “unduly influenced the victim.” Section 2A3.2 specifically defines “victim” to include “undercover law enforcement officer.” However, whether an online offender can “unduly influence” an undercover law enforcement officer remains unsettled. In 2002, in United States v. Root, the Court of Appeals for the Eleventh Circuit said an online offender can “unduly influence” an undercover law enforcement agent because of the specific inclusion of undercover officers in the definition of “victim.” In 2003, in United States v. Mitchell, the Court of Appeals for the Seventh Circuit said an online offender cannot “unduly influence” an undercover officer because the language of the guideline requires sexual contact to occur before it can be applied. As law enforcement agencies are increasingly engaging in online sting operations to catch cyber-predators, the ambiguity of the guideline will continue to cause judicial confusion. Section 2A3.2 itself does not answer that question. Even though one of the primary goals of the Sentencing Guidelines is to eliminate sentencing disparity, imprecise and ambiguous guidelines like section 2A3.2 allow for disparate interpretations. Section 2A3.2 does not define “undue influence.” Specifically, section 2A3.2 does not indicate whether the offender need only exert undue influence, in which case the guideline is punishing the offender based on his culpability, or if the victim must actually experience and succumb to the offender’s influence, which would mean that the guideline is punishing the offender based on actual harm caused. To resolve the ambiguity it is necessary to determine who section 2A3.2 is intended to punish—the offender with wrongful intent or the offender who actually caused harm.
This Comment explores the ambiguities of section 2A3.2 and analyzes the decisions in Root and Mitchell.