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Post-At-Own-Risk: Enhancing Punishments for Online Advertising
United States v. Smith, 895 F.3d 410 (5th Cir. 2018)


Tyrone Larry Smith and Lacoya Washington wasted no time when they saw an opportunity to take advantage of a vulnerable child. It is common to hear about dangers that exist on the Internet, but in the summer of 2015, those dangers became a nightmare-like reality for B.R., a 14-year-old girl from Texas who ran away from home.

Online Relationship Becomes Offline Nightmare

Smith initiated a relationship with B.R. on the social networking website Plenty of Fish. As their relationship progressed, Smith persuaded B.R. to come to Louisiana and live with Washington and himself, so B.R. made the journey on a Greyhound bus with just the clothes on her back, an extra shirt, and some makeup. She had no money, and Smith took her cell phone.

As soon as B.R. arrived, Smith told her that from then on she would be having “car dates,” in which she was expected to have sex with men in their cars and give all the money to Smith and Washington. B.R. was shocked by the deceit, but also felt trapped and helpless – she had no money, nowhere to go, and no way to call someone for help. When B.R. insisted on leaving, Smith punched her multiples times, leaving bruises on her face and lip. He then pointed a gun at her while threatening to commit suicide. B.R. was too scared to leave.

Posting Online Advertisements Leads to Arrests

Even though B.R. was only 14-years-old, Smith and Washington forced her to pose for photos to use in an advertisement on B.R. arranged “dates” with the men who responded to the advertisements at local hotels, paid for by Smith and Washington.

Shreveport Police Department Officer Miles discovered the online advertisements and suspected B.R. was a minor. The first advertisement posted said:

“Fun…Fun…fun…I love…older, polite, respectful, generous gentlemen…100% real pictures! It’s me or it’s free…New in town ready to have fun, fun, fun!!…call me now I’m waiting…Ask about my special.”

Officer Miles arranged a sting operation, and after B.R. accepted money from him, the officer took B.R. into custody. B.R. then identified Smith as her pimp. When officers searched the hotel room, they found a loaded gun, Smith’s telephone, and a prepaid gift card bought with Washington’s money (used to purchase the online advertisement.)

Trial, Sentencing, and Appeal

After a three-day bench trial, Smith and Washington were charged and convicted of sex trafficking in violation of 18 U.S.C. § 1591(a)(1) and (b)(1)-(2), and Smith was also convicted of sexual abuse under 18 U.S.C. § 2242. The court applied the U.S. Sentencing Guidelines and the applicable sentencing enhancements, imposing a 384-month sentence on Smith and a 292-month sentence on Washington.

A sentencing enhancement allows judges to increase a defendant’s sentence beyond the range recommended by the Federal Sentencing Guidelines. Here, the district court enhanced both defendants’ sentences for their use of a computer in soliciting customers to victimize B.R. The Sentencing Guidelines authorize a two-level enhancement when the offense involves “the use of a computer or an interactive computer service to … entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor.”1 Although Smith was the one who posted the pictures of B.R., the district court held that Washington was involved in a “jointly undertaken criminal activity” that warranted use of the sentencing enhancement as well.

On appeal, the Fifth Circuit agreed with the lower court’s decision. Washington argued that the district court should not have applied this sentencing enhancement because she personally “had no involvement with a computer or computer service.” She claimed that Smith created and operated the advertisement, and she did not use the website. The court, however, disagreed with this argument, citing its 2014 decision in United States v. Pringler that held a computer use enhancement can apply even where the defendant was not the one directly soliciting customers.2 Accordingly, even though Washington did not directly use the website to solicit customers, the court applied the enhancement because she participated in the crime by approving photos Smith took of B.R. and helped craft and pay for the advertisement, which contained her email address.

Beneath the surface of this decision is a deeper issue—is the plain language of the Sentencing Guidelines inconsistent with the accompanying Application Note? The Application Note states that the computer use enhancement is “intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor.”3 In Pringler, the court held that the Guidelines were inconsistent with the Application note, since it would mean the enhancement can only apply to a very small subset of cases. Therefore, the court held that the plain language of the Guidelines must apply. With this clarification, the Court held that the computer use sentencing enhancement can apply to a defendant who did not directly solicit customers.

Several other courts have confronted similar questions regarding the applicability of the sentencing enhancement for computer use. Given the wording of the Application Note, defendants have argued that, although he or she may have posted advertisements on, in doing so, he or she was not “communicat[ing] directly with a minor.” However, the Second Circuit, in United States v. Cramer, agreed with the Fourth and the Fifth Circuits in holding that this conduct falls “within the plain language of the Guidelines and that the Application Note relates only to the minor-inducement subsection of this provision.”4 The court was only able to determine one scenario in which other criminal offenses covered by the Guidelines would comply with both the Guidelines and the Application Note, and therefore concluded that the Application Note applies in this scenario.

Since the Fifth Circuit’s decision in Pringler, multiple other circuit courts have fallen in line with the Fifth Circuit, reasoning that the Application Note is a drafting error and inconsistent with the text of the Guidelines.5 As more courts support the Fifth Circuit’s approach, the remaining circuits should consider the text of the Guidelines to be authoritative, rather than the Application Note.

Even though Washington may not have been the one to physically post the advertisement on, she was instrumental in B.R.’s victimization. According to more than half the circuit courts in the United States, this sentencing enhancement can be applied to defendants even if they did not push the “post” button on the website. Using the Internet to advertise a minor can lead to greater exploitation, and judges have the authority to take this into account during the sentencing phase of a trial.

    • 1 U.S. Sentencing Guidelines Manual § 2G1.3(b)(3)(B)
    • 2 United States v. Smith, 895 F.3d 410, 418 (5th Cir. 2018) (citing United States v. Pringler, 765 F.3d 445, 454-56 (5th Cir. 2014))
    • 3U.S. Sentencing Guidelines Manual §2G1.3 cmt. n.4
    • 4 United States v. Cramer, 777 F.3d 597, 604 (2d Cir. 2015)
    • 5United States v. Cramer, 777 F.3d 597, 604 (2d Cir. 2015), United States v. McMillian, 777 F.3d 444, 450 (7th Cir. 2015), United States v. Winbush, 524 Fed. Appx. 914, 916 (4th Cir. 2013), United States v. Gibson, 840 F.3d 512, 515 (8th Cir. 2012)

About the author

Meghan Poole

Meghan Poole

Meghan Poole is a third-year law student at Boston University School of Law. She graduated from New York University with a degree in Science, Media, Culture, and Communication. As an undergraduate student, Meghan interned at the CT Permanent Commission on the Status of Women, which sparked her interest in anti-trafficking work. At Boston University, Meghan serves as the Co-President of the Public Interest Project and volunteers as an Admissions Ambassador to prospective students. In addition, Meghan participates in Boston University’s Human Trafficking Clinic, where she provides pro-bono legal representation for survivors of human trafficking in immigration, family reunification, and criminal matters. After Meghan’s first year of law school, she worked in the Administrative Trials Unit at the New York City Department of Education’s Office of the General Counsel. This past summer, Meghan interned at the New York City Law Department in the Family Court Division