US v. Hodges: Hodges met a woman named “Alice” online, who had two daughter, aged 11 and 13, to whom he expressed his desire to engage in “family sexual relations.” After lots of talk back and forth, Hodges flew from his home in Montana to West Virginia to meet Alice and her children. Only Alice was a police officer and the children were fictional. Hodges was arrested at the airport and eventually pleaded guilty to two counts of enticement. His advisory Guideline range was enhanced based on the use of a computer involving a “minor” and because one “minor” was under 12 years of age. Hodges was sentenced to 324 months in prison, the bottom of the advisory Guideline range.
On appeal, the Fourth Circuit affirmed Hodges’ sentence. His argument (on plain error review) was that the term “minor” was not so ambiguous as to allow resort to the Guideline commentary that define the term to involve fictitious minors (so long as they are portrayed by law enforcement). The court disagreed, finding no error, much less a plain one, in resorting to the commentary, concluding that the term “minor” was ambiguous (at least as to whether it included fictitious minors). To hold otherwise would be contrary to caselaw that allowed convictions for enticement in cases without a real minor and decisions of other circuits on this particular point.
NOTE: I was counsel for Hodges in this appeal.
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