United States v. Zahursky, No. 11-2054 (7th Cir. 2012)Annotate this Case
In 2007, defendant was convicted of attempting to coerce or entice a minor to engage in sexual activity, 18 U.S.C. 2422(b), and received a 262-month prison term. The Seventh Circuit vacated the sentence. On remand, the district court, relying in part on USSG 2G1.3(d) imposed a sentence of 210 months in prison. The Seventh Circuit affirmed. Where a conviction under 18 U.S.C. 2422(b) involves multiple minors, USSG 2G1.3(d) directs a sentencing court to treat the relevant conduct with each person as a separate count. Unlike the statute, however, 2G31.(d) does not contain an "attempt" provision. This means that the government must prove that each relevant person was a minor. The defendant failed to raise whether the "victim" fell within the definition of "minor" at his first sentencing hearing; the remand did not give him the right to raise any and all sentencing arguments and the district court was within its discretion in refusing to consider the argument.