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United States of America v. Anthony Watkins

January 26, 2012

UNITED STATES OF AMERICA, APPELLEE,
v.
ANTHONY WATKINS, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Miner, Circuit Judge:

10-2971-cr

United States v. Watkins

Submitted: June 24, 2011

Before: MINER, MCLAUGHLIN, and POOLER, Circuit Judges.

Appeal from a judgment of sentence entered June 23, 2010, in the United States District Court for the Northern District of New York (Kahn, J.), convicting defendant-appellant, after a guilty plea, of transportation of a minor in interstate commerce with intent to engage in criminal sexual activity, and sentencing defendant principally to a term of imprisonment of 233 months, the court having applied the three two-level sentencing enhancements at issue pursuant to the Sentencing Guidelines because the offense involved: (1) the commission of a sex act; (2) use of a computer to entice a minor to engage in prohibited sexual conduct; and (3) misrepresentation of identity "to persuade, induce, entice, [or] coerce . . . a minor to engage in prohibited sexual conduct" and/or undue influence to engage in such conduct.

Affirmed.

Pooler, Circuit Judge, filed opinion concurring in part and dissenting in part.

Defendant-appellant Anthony Watkins appeals from a judgment of sentence entered June 3 23, 2010, in the United States District Court for the Northern District of New York (Kahn, J.). 4 Watkins was convicted, after a guilty plea, of transporting a minor in interstate commerce with 5 intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The District 6 Court sentenced Watkins principally to a 233-month term of imprisonment. In reaching that 7 sentence, the court applied three two-level sentencing enhancements pursuant to § 2G1.3 of the 8 United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") because the offense 9 involved: (1) the commission of a sex act, U.S.S.G. § 2G1.3(b)(4)(A); (2) use of a computer to 10 entice a minor to engage in prohibited sexual conduct, U.S.S.G. § 2G1.3(b)(3)(A); and (3) 11 misrepresentation of identity "to persuade, induce, entice, [or] coerce . . . a minor to engage in 12 prohibited sexual conduct" and/or undue influence to engage in such conduct, U.S.S.G. § 13 2G1.3(b)(2)(A) and (B).

14 On appeal, Watkins challenges the three sentencing enhancements and contends that his 15 233-month sentence is substantively unreasonable. For the following reasons, we conclude that 16 the District Court did not err in applying the sentencing enhancements and in imposing a 233- 17 month term of imprisonment.

BACKGROUND

The following description of the conduct underlying Watkins' conviction is drawn from 20 the findings of the District Court, the court expressly having found the facts described in 21 Watkins' Presentence Investigation Report ("PSR") supported by a preponderance of the 22 evidence. These facts are not disputed on appeal.

At the time of the conviction of the offense charged, Watkins was 48 years' old, 2 homeless, unemployed, and living in a baseball dugout at Schenectady County Community 3 College in Schenectady, New York. By his own account, he supported himself by selling drugs 4 and stolen property. From the age of 14, he had spent his life in and out of jail. Watkins was a 5 frequent visitor to the public library in Schenectady. He often went there to use the Internet and 6 to listen to free music on Jango.com. Jango encouraged social networking by identifying for 7 each user other Jango users with similar musical tastes. Jango enabled its users to communicate 8 with each other. In April 2008, Watkins began communicating through Jango with a fifteen- 9 year-old girl, Jane Doe, a resident of Connecticut. The two shared an interest in rock music.

Watkins initially communicated with Doe "a few times a week" using Jango, as well as 11 MySpace and email.

On May 12, 2008, Doe informed Watkins that she was fifteen years' old and had a 13 boyfriend. She asked Watkins if he "wanted her to talk all sexy to him and get him all horny and 14 shit." Watkins said "thanks, finally, of course I do want you to . . . that's the point . . . remember 15 I only live in New York so if you ever get brave enough . . . ." Watkins told Doe that "thinking 16 about her at this innocent age is like an hour of wild sex already . . . ." Watkins asked Doe if she 17 was a virgin, and she stated that she was. Watkins and Doe repeatedly discussed sex and what it 18 would be like to have sex, often in graphic detail. They had "computer sex," "phone sex," and 19 they "talk[ed] dirty" to each other online.

In Watkins' initial communications with Doe, he misrepresented his age, stating that he 21 was 38 years' old when he was actually 48. He also misrepresented to Doe that he had two 22 children (he actually had five) and that he was a former drug addict (by his own account, he 1 smoked marijuana "all day long, every day"). Watkins also "repeatedly told [Doe] that he loved 2 her" and said "that he was waiting for her to get older so she could come live with him" in New 3 York. Doe responded that "she loved him too."

4 Watkins made plans to travel to Doe's home in Connecticut on October 31, 2008, but he 5 canceled the trip, explaining that his "check had not come." Nonetheless, Watkins promised Doe 6 that he would visit the next day, Saturday, November 1, 2008, and sent Doe an electronic 7 message stating:

8 [D]on't be depressed, I will be there . . . . you got that[,] girl . . . . I am sad cause my 9 money fucked me up; I would be in your panties by now . . . . I can't let you go so 10 stay . . . . be my girl . . . . it's only [a twenty-year age difference], it's common for 11 couples.

Watkins also asked Doe to keep her phone on so that when he arrived at her house she could 13 "jump out the window" and he could "teach [her] the differences between fucking and making 14 love," adding that he would "take great care of [her] wants and needs."

15 On November 1, Watkins drove from Schenectady to Connecticut, where Doe resided, 16 and called Doe's cell phone when he arrived outside of her house. Doe answered but did not 17 invite him in, explaining that "she and her family were members of the Jehovah Witness faith, 18 and that her mother was very strict." Instead, Doe met Watkins at the end of her long driveway 19 in the car that he was driving.*fn1

The two began kissing as soon as Doe got into the car. Watkins asked Doe to perform 21 oral sex on him, and she did. He then performed oral sex on her, and the two engaged in 22 unprotected sexual intercourse. Doe's mother then called her on her cell phone, and Doe 23 returned home, telling her mother that she had gone for a walk.

Around 11 p.m. that same night, Watkins called Doe and told her that he was at the end 2 of her driveway again. Doe sneaked out of her house and met Watkins in his car. Watkins then 3 drove to a nearby park and parked near the woods, where he gave Doe four necklaces and two 4 rings. Watkins and Doe had vaginal intercourse on the back seat of the car, but the two were 5 interrupted repeatedly by phone calls from Doe's mother. To get away from Doe's mother, 6 Watkins and Doe "suddenly decided to get on the highway and leave town." Watkins suggested 7 that they travel to New York.

8 Watkins then drove Doe to New York, where he could engage in sexual intercourse with 9 Doe without interruption. At some point along the way, Watkins parked along the roadside, and 10 Watkins and Doe had sexual intercourse. They arrived in New York around 2:30 a.m. and 11 stopped in the town of Niskayuna, where Watkins informed Doe that the car "had run out of 12 gas." Watkins and Doe then abandoned the car in a parking lot and took a bus to Schenectady.

13 In Schenectady, Watkins told Doe that they should not go to his "home" because he 14 feared that her mother or the police would find them there. He and Doe therefore spent time at 15 Watkins' friend's house. They went for a free breakfast at a church and had lunch at a 16 restaurant, which Watkins told Doe was also free. Later that day, Watkins took Doe to the same 17 library where Watkins previously had accessed the Internet. While there, Watkins deleted all of 18 his identifying information from the websites on which he and Doe had communicated, 19 including his area code, picture, and last name.

20 The next day, Sunday, November 2, Watkins and Doe traveled to a Salvation Army store 21 where they were given two sets of clothes and coats for free. Doe's boyfriend called her that day 22 and tried to convince her to come home. Doe then told Watkins that she wanted to go home.

1 Watkins became jealous and unhappy with her. He told her that her boyfriend was not treating 2 her well because he did not have sexual intercourse with her but only engaged in touching, 3 which Watkins said was "kids' stuff." Nonetheless, Watkins took Doe to the bus station, though 4 Doe was informed eventually that it was closed on Sundays.

5 That night, Watkins took Doe to the baseball dugout at Schenectady County Community 6 College, where he "kept three blankets." They spent the night in the dugout and had unprotected 7 vaginal intercourse three times. When they awoke the next day, November 3, Watkins and Doe 8 had vaginal intercourse again. They then returned to the Salvation Army store for breakfast.

9 Later that same day, Watkins told Doe to call her family from his cellular phone, which 10 she did. She told her father and sister that she was alright and that she would be home later in 11 the week. Watkins and Doe then traveled back to the Schenectady Library. However, the 12 police, acting on a tip, were at the library and arrested Watkins. Watkins refused to answer 13 questions about whether he had engaged in sexual intercourse with Doe, but a forensic 14 examination of physical evidence found at the baseball dugout where Doe and Watkins spent the 15 night was abundant with proof: Watkins' sperm was found on a tampon worn by Doe, and DNA 16 of both Watkins and Doe was found on the dugout blankets.

17 On November 17, 2009, Watkins pled guilty to Count One of a three-count Superseding 18 Indictment for transporting a minor in interstate commerce with intent to engage in criminal 19 sexual activity in violation of 18 U.S.C. § 2423(a).*fn2 The United States Probation Office 1 thereafter prepared a PSR, which calculated Watkins' offense level at 31 and which included 2 three two-level enhancements, pursuant to the Guidelines, because the offense involved: (1) the 3 commission of a sex act, U.S.S.G. § 2G1.3(b)(4)(A); (2) use of a computer to entice a minor to 4 engage in prohibited sexual conduct, U.S.S.G. § 2G1.3(b)(3)(A); and (3) misrepresentation of 5 identity "to persuade, induce, entice, [or] coerce . . . a minor to engage in prohibited sexual 6 conduct" and/or undue influence to engage in such conduct, U.S.S.G. § 2G1.3(b)(2)(A) and (B).*fn3

7 The PSR also recommended a two-level reduction for acceptance of responsibility and a one- 8 level reduction for timely notification of intention to enter a guilty plea, pursuant to U.S.S.G. ยง 9 3E1.1(a) and (b), respectively. The PSR further calculated Watkins' criminal history level at VI 10 based on his twenty-two prior state crime convictions, which included ...


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