§455 Use of Minor in Offense
(U.S.S.G. §3B1.4 and 2X6.1)
7th Circuit says increase for use of a minor does not require defendant to instruct minor. (455) In sentencing defendant for carjacking and other offenses, the district court added two levels under § 3B1.4 for using a minor to commit the offense. The minor had pushed the victim in the back of the car that defendant carjacked. The Seventh Circuit held that § 3B1.4 does not depend on whether defendant gave the minor any instructions. It was sufficient that defendant partnered with the minor to commit the carjacking. U.S. v. Lovies, __ F.4th __ (7th Cir. Oct. 21, 2021) No. 20-2463.
1st Circuit applies increase for using minor son to send threatening emails to estranged wife. (455) During a protracted custody dispute with his estranged wife, defendant sent her a number of threatening messages. During the time that their pre-teen son was living with defendant, his wife received a number of harassing and threatening emails. Although the emails originated from the son’s email account, the son testified that his father had composed them. The First Circuit upheld two-level enhancement under § 3B1.4 for using a minor in the cyber stalking crimes. U.S. v. Walker, 665 F.3d 212 (1st Cir. 2011).
2nd Circuit says use of a minor increase does not require minor to be vulnerable. (455) Defendant pled guilty to robbing a delivery truck and kidnapping a wealthy local resident. He received a § 3B1.4 increase for his use of a minor in the kidnapping. Defendant argued that the increase was improper because the minor was a 17-1/2 year old drug dealer who willingly participated in the robbery and kidnapping and did not need protection from exploitation. The minor’s participation was that of a partner, not a subordinate. The Second Circuit held that the use of a minor increase did not require the minor to be exploited. A defendant’s mere participation in a criminal venture with a minor was in insufficient, by itself, to justify a § 3B1.4 enhancement. The defendant must do more, such as take affirmative acts to recruit, encourage or involve the minor. However, there is no requirement that the minor be vulnerable, child-like in appearance, or predisposed to crime. Here, defendant solicited, recruited, trained and commanded the minor. This was sufficient, and the fact that minor was a large, 17 year old drug dealer who participated eagerly in the crime did not make § 3B1.4 inapplicable. U.S. v. Rose, 496 F.3d 209 (2d Cir. 2007).
5th Circuit approves enhancement for using minor to purchase prepaid phone that defendant used to make bomb threats. (455) Defendant asked his minor step-sister to purchase a prepaid cellular telephone for him. The next day, he used the phone to call in a bomb threat to a court house where he was scheduled to attend a child-support hearing. The Fifth Circuit upheld a § 3B1.4 enhancement for using a minor to commit the offense. The court could properly infer from the facts that defendant had another person purchase the phone to avoid appearing on store surveillance videos. Because defendant directed the minor to purchase the phone only hours before he made the threats, the timing supported an inference that he had the requisite intent at the time he made the request. Defendant’s decision to purchase a prepaid phone that could not be tracked directly to him and to dispose of that phone after the call supported the inference that he asked the minor to purchase the phone with the specific intent to avoid detection. U.S. v. Robinson, 654 F.3d 558 (5th Cir. 2011).
5th Circuit upholds use of a minor enhancement. (455) Defendant was convicted of multiple fraud counts related to Medicaid reimbursement claims. Section 3B1.4 provides for a two-level enhancement for using a minor to commit the offense. The district court applied the enhancement because defendant used her underage children to complete fraudulent Medicaid forms. At sentencing, the court stated that it relied on testimony from Scott that she, defendant, and defendant’s children were in the kitchen filling out false time sheets. Defendant and her children were already filling out forms when Scott arrived and sat down to help. She testified that they all copied off of other forms or old papers. The Fifth Circuit affirmed the use of minors’ enhancement. Scott’s testimony supported the finding that defendant’s children were much more than mere passive observers of defendant’s criminal acts; rather, defendant took “some affirmative action to involve” her minor children in actively creating the fraudulent time sheets. U.S. v. Girod, 646 F.3d 304 (5th Cir. 2011).
7th Circuit requires increase for using minor even though minor children were unaware of crime. (455) Defendant and her husband confiscated the passport of their live-in Filipino housekeeper, forcing her to work long hours and cutting off her contact with the outside world. Defendant’s children were told not to discuss the housekeeper with anyone outside the family. Defendant was convicted of obtaining and conspiring to obtain forced labor and harboring and conspiring to harbor an alien for private financial gain. The Seventh Circuit held that the district court erred in refusing to apply a §3B1.4 enhancement for using a minor to commit a crime. The district court thought that defendant’s minor children were not active and knowing cooperators in the scheme, but were innocent dupes of their parents. However, whether the minor understands that he is being used to commit a crime is irrelevant to the §3B1.4 enhancement. U.S. v. Calimlim, 538 F.3d 706 (7th Cir. 2008).
7th Circuit applies “use of minor” increase for using children to advertise medical clinic in insurance fraud. (455) Defendant, a chiropractor, was convicted of defrauding Medicare, Medicaid, and private insurance companies. The Seventh Circuit upheld a § 3B1.4 enhancement for using minors to further the fraud scheme. At trial, there was conflicting testimony as to whether, at defendant’s direction, minors passed out fliers advertising one of defendant’s clinic. The mother of the two minors in question testified that defendant offered her children movie tickets in exchange for their agreement to pass out fliers advertising his clinic. The minors’ grandmother gave similar testimony. Defendant and a co-conspirator testified they had not offered any movie tickets to the children in return for passing out fliers. This was a classic credibility determination and the district court was entitled to credit the minors’ mother and grandmother. U.S. v. Choiniere, 517 F.3d 967 (7th Cir. 2008).
7th Circuit says imposition of organizer and use-of-minor enhancements was not double counting. (455) At sentencing on defendant’s conviction for possession of illegal explosives, the district court enhanced defendant’s sentence under § 3B1.4 for using a minor in the commission of the offense and under § 3B1.1 for being an organizer or leader. Defendant argued that because one of the people whom he organized or led was the minor who formed the basis for the § 3B1.4 enhancement, imposition of both enhancements constituted impermissible double counting. The Seventh Circuit held that imposition of the two enhancements was not double counting because the organizer enhancement would have applied regardless of the age of defendant’s accomplices, and the use-of-a-minor enhancement would have applied regardless of whether the offense was otherwise extensive. U.S. v. Shearer, 479 F.3d 478 (7th Cir. 2007).
8th Circuit says any error in applying use of minor enhancement was harmless. (455) Defendant participated in an extensive drug conspiracy to distribute cocaine base in Cedar Rapids, Iowa. He challenged a two-level enhancement for use of a minor. The Eighth Circuit found it unnecessary to address the challenge because any potential error would have been harmless. As defendant conceded, even if he were successful on this issue, his guideline range would remain unchanged at 360 months to life. U.S. v. Bolden, 622 F.3d 988 (8th Cir. 2010).
8th Circuit upholds use of minor enhancement for 20-year-old defendant. (455) Despite a contrary recommendation in the presentence report, the district court increased defendant’s sentence under §3B1.4 for use of a minor in the robbery. The district court found that grand jury testimony established that defendant hatched the robbery plan, and actively recruited a minor who was not an “equal partner” in the offense. The Eighth Circuit upheld the application of the enhancement. The panel refused to follow the Sixth Circuit’s decision in U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), in which two judges held that the use-of-a-minor enhancement did not apply to defendants who were less than 21 years old. (Defendant was 20 years old when he committed this crime.) However, in U.S. v. Ramirez, 376 F.3d 785 (8th Cir. 2004), the Eighth Circuit expressly disagreed with Butler. U.S. v. Jones, 612 F.3d 1040 (8th Cir. 2010).
8th Circuit finds defendant used minor niece to help place threatening phone calls. (455) After defendant’s wife cut off contact with him while he was in prison, defendant called his mother and asked her to make a three-way call to his wife’s cell phone. Defendant’s mother summoned defendant’s 16-year old niece and told the niece to talk to defendant. Defendant then gave his niece several numbers to call in an attempt to reach his wife, and also instructed his niece to press “1” so he could leave a message. He then left a threatening message on his wife’s voicemail. Defendant pled guilty to making a threatening telephone communication, and received a two-level enhancement under § 3B1.4 for use of a minor in the commission of the offense. The Eighth Circuit affirmed, finding the fact that defendant’s mother, rather than defendant, requested the niece to place the phone call did not matter. The term “use” is not limited to active recruitment of a minor to participate in an offense. Although defendant’s mother initially requested the niece to get on the phone, defendant then assumed control, and gave his niece explicit direction and commands, including which numbers to dial, how to place calls, and when to hang up. U.S. v. Williams, 590 F.3d 616 (8th Cir. 2010).
8th Circuit applies use of minor increase even though no special advantage to using a minor. (455) Defendant was convicted of hiring and harboring unlawful aliens working at a restaurant she owned. The district court applied a two-level increase under § 3B1.4 for using a person less than 18 years old to commit the offense, finding that two of the aliens were minors. Defendant challenged the application of the enhancement, noting that there was “no particular advantage” in employing minors rather than adults, that the minors were not used as “a cover for employing illegal aliens,” and that the minors were not used to escape apprehension for the offense. The Eighth Circuit affirmed the enhancement. Defendant did act affirmatively to involve the minors in the offense. She hired them and harbored them. The plain language of the guideline encompasses use of a minor, regardless of special advantage to the defendant. the purpose of the enhancement – to protect minors as a class – is served by punishing the use of minors whether or not there was a comparative advantage in using minors rather than adults. U.S. v. Tipton, 518 F.3d 591 (8th Cir. 2008).
8th Circuit finds sufficient evidence to support increase for use of minor. (455) Defendant argued that he did not “use” a minor to commit his drug offense, as provided in § 3B1.4, because the minor involved in his offense was the drug supplier and the leader or supervisor of the criminal activity. The Eighth Circuit affirmed the enhancement, finding that the government presented sufficient testimony to support the finding that defendant used a minor. Henderson testified that he began selling crack with defendant when Henderson was 13 years old. Henderson described defendant as his mentor and indicated that he learned the “game” of crack trafficking from defendant. This was corroborated by the testimony of others. Although Henderson “graduated” into supplying drugs to individuals who would then sell smaller amounts, there was sufficient evidence that defendant directed, commanded and encouraged Henderson to commit the offense during Henderson’s minority. U.S. v. Birdine, 515 F.3d 842 (8th Cir. 2008).
9th Circuit allows use of a minor to be attributed to another for purpose of misprision offense. (455) Defendant pled guilty to misprision of a felony after she failed to intervene when her husband beat his six-year-old daughter to death. After the girl died, defendant’s husband induced his 13-year-old son to lie to investigators by saying that the girl had fallen out of a tree. The district court increased defendant’s sentence by 2 levels under §3B1.4 for use of a minor. On appeal, the Ninth Circuit affirmed, noting that the misprision guideline, § 2X4.1, directs the court to determine the offense level for the underlying offense exactly as it would have had the defendant been convicted of that offense. The district court properly found that defendant knew or should have known that her husband would use the 13-year-old boy to lie to authorities, because he told defendant to tell the same lie. U.S. v. Goodbear, 676 F.3d 904 (9th Cir. 2012).
9th Circuit upholds enhancement for using a minor to assist in importing drugs across border. (455) Defendant attempted to drive a van containing 150 pounds of marijuana and four of her children across the border from Mexico. She pleaded guilty to importing marijuana. Evidence presented to the district court showed that before attempting the border crossing, defendant left her fifth child with her sister. At sentencing, the district court increased defendant’s offense level by two under § 3B1.4 because she “used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of” the offense. The Ninth Circuit upheld the enhancement because defendant had an alternative to involving her children in the offense and ample time to plan a means of committing the crime without involving her children. U.S. v. Preciado, 506 F.3d 808 (9th Cir. 2007).
9th Circuit upholds use-of-minor enhancement for recruiting minor as drug seller. (455) Section 3B1.4 of the guidelines requires a two-level enhancement if the defendant used or attempted to use a minor to commit the offense. Defendant fronted methamphetamine to a minor to sell for him and threatened her if she did not pay for the drugs. The minor testified that defendant insisted that the she take a pound of methamphetamine to sell even though she wanted only an ounce. Defendant also ordered the minor to keep track of the proceeds of the drugs she sold. The Ninth Circuit held that the evidence was sufficient to show that defendant engaged in training, intimidating, and encouraging the minor and upheld a two-level enhancement under § 3B1.4. U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007).
10th Circuit upholds increase for using juvenile in murder conspiracy. (455) Defendant was involved in a conspiracy to kill a witness. Defendant challenged the district court’s finding that she enlisted the help of two juveniles in the murder conspiracy. The two juveniles assisted in transporting the stolen car from defendant’s home in Kansas City, Kansas to Lawrence, Kansas, where the victim was to be killed. The Tenth Circuit affirmed a §3B1.4 increase for using a juvenile. Although defendant argued that transporting the vehicle was not part of the offense, the juveniles were needed because the co-conspirator had refused to drive the stolen vehicle to Lawrence, where the victim was to be killed. U.S. v. Ivory, 532 F.3d 1095 (10th Cir. 2008).
11th Circuit applies use of minor increase for placing baby on top of cocaine to hide drugs. (455) Defendant, sitting in the front passenger seat of a car, allegedly placed a baby on top of the cocaine next to him to conceal the cocaine. Defendant claimed that the baby was in the back in a car seat. However, a confidential informant who bought cocaine from defendant testified that defendant was in the front passenger seat of the car with the infant, an eight-or-nine-month baby; and had placed the baby down next to him. The informant testified that she did not see the cocaine before defendant handed it to her because the infant had been sitting on top of the cocaine. Defendant had “reached his hand under the baby’s butt” to get the cocaine. The baby was snuggled up next to defendant’s body. The Eleventh Circuit upheld a § 3B1.3 increase for use of a minor. During the drug deal, defendant took the affirmative step of physical placing the baby on top of the cocaine in the front seat of the car and next to him, effectively using the baby as a human shield to conceal his cocaine from anyone who might look into the vehicle. U.S. v. Futch, 518 F.3d 887 (11th Cir. 2008).