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July 21, 2009

Sixth Circuit amends its federal guidelines masturbation jurisprudence

In this prior post from a few months ago, I noted that the Sixth Circuit had to resolve a guideline question that forced it to break new ground in federal guidelines masturbation jurisprudence. But today brings a new amended Sixth Circuit ruling in US v. Shafer, No. 07-2574 (6th Cir. July 21, 2009) (available here), which starts this way:

Defendant-Appellant Robert Shafer (“Shafer”) appeals his sentence of 360 months of imprisonment resulting from his guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of such conduct and which were produced using material which had been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a).  Specifically, Shafer admitted to “caus[ing] an eleven year-old boy to undress and engage in sexually explicit conduct, including, but not limited to, masturbation and the lascivious exhibition of his genitals and pubic area.  [Shafer] produced seven (7) digital images of the sexually explicit conduct using materials which had been shipped and transported in interstate and foreign commerce, including, but not limited to, a Sony Mavica brand digital camera that was manufactured outside of the State of Michigan.” Joint Appendix (“J.A.”) at 14-15 (Indictment at 1-2).  Shafer’s sole argument on appeal is that the district court clearly erred at sentencing when it imposed a two-level enhancement pursuant to the U. S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2G2.1(b)(2)(A) (2006).  After we issued an opinion in this case, the Government presented in a petition for rehearing and rehearing en banc a new argument that we did not have occasion to consider in our initial review.  In light of this new argument, we provided Shafer an opportunity to respond to the Government’s position, and we conducted further research regarding the legislative purpose behind the statute at issue in this case as expressed in the statute’s legislative history.  Having thoroughly reviewed these additional materials, we now AFFIRM Shafer’s sentence.  We withdraw our prior opinion and issue this amended opinion.

July 21, 2009 at 11:04 AM | Permalink

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